Buying, owning and refinancing land adjoining an unadopted road – everything you need to know

Landowners will be familiar with using existing unadopted roads as they invariably form part of, adjoin or provide a means of access to their properties. Whilst unadopted and private roads can offer benefits to landowners in terms of privacy, security and potentially increasing the value of their land due the exclusivity they often offer, there’s also liabilities landowners might face if their local Council decides to adopt an unadopted road adjoining their land.

What is an unadopted road?

An unadopted road is a roadway that has not been adopted by the local Council. Therefore, it is likely that its surface will not be made up to the required standard for an adopted road and it will not have been designated as a highway maintainable at public expense.

Whilst the local Council are responsible for the legal status of the unadopted road, it is those homeowners and landowners (‘frontagers’) who are responsible for undertaking – and footing the bill for – its maintenance and upkeep.

How is the maintenance of an unadopted road managed?

Where the unadopted roadway serves residential properties, often there will be a road association run by the residents who manage the road on behalf of residents pursuant to the terms of a management agreement or under covenants burdening the titles of each of the dwellings. These covenants often require homeowners to contribute towards the maintenance and upkeep of the roadway in return for a right of way along it.

However, often there are no covenants, which can make enforcement of the management agreement – and collection of each frontager’s contribution – difficult or even impossible.

Can Councils adopt existing unadopted roads?

Local Councils have the power to adopt unadopted roads. Surrey County Council, for example, takes the view that it does not adopt existing roadways. Instead, its focus is on new roadways which have been constructed to the required standard for adoption.

It has a number of different criteria that have to be met in order for a road to be adopted. Further, they also require an application to be made to them (under s38 of the Highways Act 1980) in order to initiate the process from the frontagers.

What happens if the Council adopts an unadopted road?

If the unadopted roadway is adopted, each frontager will be responsible to the local Council for their share of any upgrade costs to the extent that their property abuts the unadopted road. If you haven’t considered the potential cost (and your share of this), it could come as a nasty surprise – especially at a time when the cost of living and interest rates are such that there may not be sufficient in the farm or estate budget to allow for it this financial year.

From adoption, the road is then managed and maintained by the local Council.

Is adoption a risk landowners can insure against?

Yes, if you acquire a property which abuts an unadopted road, defective title indemnity insurance may be available (on a property-by-property basis) to mitigate the risk of the Council adopting the road and seeking payment of your share from you.

If you buy a property with a mortgage, the lender will require this as lenders tend not to like unadopted roads (and of course this will apply on purchase and re-mortgage alike).

This policy is likely to have a one-off premium and will last around 35 years or the length of the mortgage and care needs to be taken to ensure that the policy is not voided by a future change of use, which is particularly important for larger properties and landholdings where there might be a number of different uses or changes in use during the life of the policy.

How Moore Barlow can help

At Moore Barlow we regularly deal with questions relating to access – ranging from the absence of rights of way to issues relating to unadopted roads – and we can help you navigate the potential potholes of owning, acquiring and refinancing land adjoining unadopted roadways.

Contact our rural law team today