Rights of way on a pri­vate road need to be es­tab­lished

Yorkshire Post - Property - - PROPERTY - John Rob­son

QUES­TION: As a con­se­quence of a ca­reer change I am mov­ing from York­shire to Southamp­ton. I am in the process of buy­ing a lease­hold house built on a small de­vel­op­ment of 70 sim­i­lar prop­er­ties.

The house is was con­structed circa 1928. The road­ways on the devl­op­ment are pri­vate and not main­tained by the coun­cil. There is an es­tate com­pany into which all house­own­ers pay an an­nual sub­scrip­tion and part of this fund of money cov­ers the main­te­nance and up­keep of the roads.

How­ever, a le­gal is­sue has arisen as the lease doc­u­ment re­lat­ing to the prop­erty does not con­tain any spe­cific rights of way in favour of the prop­erty to use the road­ways.

My con­veyancer is sug­gest­ing a deed of vari­a­tion to the lease is ob­tained to in­clude such rights. This will be ex­pen­sive and cause an unc­cept­able de­lay in the process as I have to move be­fore the end of the year.

Fur­ther­more, there is a li­a­bil­ity to pay an es­tate charge of just over £400 per an­num. Would this be con­sid­ered detrimetal to the sale of the prop­erty in the fu­ture?

An­swer: It does seem a fun­da­men­tal er­ror was made when the lease was drafted 80 years ago.

It would be of in­ter­est to as­cer­tain if all the leases to the houses on the de­vel­op­ment are iden­ti­cal, if any amend­ments were made to any and if any sub­se­quent deeds of vari­a­tion have been granted to other ti­tles.

This can be dis­cov­ered by ob­tain­ing a copy of the free­hold ti­tle.

Any deeds of vari­a­tion will be reg­is­tered against this ti­tle and copies can be ob­tained from Land Reg­istry.

If the lease con­tains a clause grant­ing it sub­ject to and with the ben­e­fit of “rights and ap­pur­te­nances” then the im­pli­ca­tions of Sec­tion 62 of the Law of Prop­erty Act 1925 can be ap­plied.

Un­der Sec­tion 62 of this Act any rights of way ex­er­cised are deemed to have been ex­pressed. As the house was built af­ter 1925 this Act is rel­e­vant.

There is an his­toric process whereby the Es­tate com­pany can, or may have, ap­plied for a Cer­tifi­cate un­der Sec­tion 19(1) of the Lease­hold Re­form Act 1967 con­firm­ing it has the pow­ers to man­age the de­vel­op­ment and to im­pose reg­u­la­tions to which all prop­erty own­ers have to sub­scribe and to grant rights of way.

To an­swer your ques­tion Sec­tion 62 of the above act can be re­lied upon in re­spect of the rights of way deemed to be ex­pressed.

I would ad­vise the cur­rent owner is re­quested to swear a Statu­tory Dec­la­ra­tion con­firm­ing the rights have been ex­er­cised with­out any ob­jec­tion or in­terup­tion.

Fur­ther, and as belt and braces job, I would con­sider it pru­dent to pro­ceed with the deed of vari­aiton of the Lease al­beit this should not de­lay the pur­chase. This will pre­vent any fu­ture is­sues or de­lay when you come to sell the prop­erty. The seller should be re­quested to cover the le­gal costs of this deed.

Turn­ing to the an­nual es­tate charge, I as­sume the coun­cil tax bill for the prop­erty does not in­clude a con­tri­bu­tion to­wards the costs of main­tain­ing the road­ways.

This be­ing the case there is no real ex­tra util­ity pay­ments at­tach­ing to the prop­erty and thus the value and re­sale should not be af­fected.

There will be de­tailed An­nual Gen­eral Meet­ing min­utes avail­able and your con­veyancer should ob­tain a copy as they will pro­vide an insight into the is­sues and mang­ment of the de­vel­op­ment. Also de­tailed ac­counts for the last three years es­tate charge will be avail­able and agin copies should be re­quested.

Fi­nally you should ask your con­veyancer to en­sure any share held in the man­age­ment com­pany is trans­ferred into your name on com­ple­tion of your pur­chase.

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