Rights of way on a private road need to be established

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.