Access is by a 'Private Road' - would a mortgage company lend?

Gallipot

Greetings. I'm new to this forum so please be gentle.
We have made an offer to buy a house which is accessed along a 'private track'. Nobody seems to own the track and my solicitor has done all of the searches she can and still hasn't come up with anything at the land registry etc..
The people we're buying from have a statement from the previous owners who claimed to have a right of way for 30 years. The current owner will supply a similar statement for their 23 year ownership.
2 other houses houses use the track and they all share in the upkeep.
BUT my solicitor is very wary that someone could come along and block our access if they can prove ownership of the track and hold us to ransom.
The solicitor is looking at getting the seller to provide an indemnity insurance against a potential claim (if that is possible).
The $64,000 question is what will be the chances of getting a mortgage against the property. (With or without indemnity). We don't need one, but if we want to sell in future will prospective buyers be turned away by lenders who wouldn't touch the property with a bargepole?
Thanks in anticipation; especially if you are a mortgage broker!

G_M

just googled this which may enlighten, though you'd need to do further research into the various statutes and case law to fully understand.......:

http://www.practicalconveyancing.co.uk/content/view/8746/1113/

Richard_Webster

I don't think it is a good idea for you get involved with a broker on this. Your solicitor seems to be unduly nervous here - I wouldn't have seen this as a big issue myself.

Frankly if a broker approaches a lender abouty a detailed technical point like this he is unlikely to get a sensible answer. People in lenders' offcies who deal with mortgage applications will not understand what it is all about and will get frightened. Also the broker may not explain it properly.

Think about it - most people apply for their mortage before they find out details like that they have no specific right to use a private road. They get their mortgage offer and then their solicitor (if he acts also for the lender - which is usually the caase) will look into it to see if he can satisfy the lender's requirements.

Your solicitor simply needs to check up what your proposed lender's rules are about this as per the Council of Mortgage Lender's Handbook. (I'm assuming that your chosen solicitor can act for your proposed lender - you do not want a separate solicitor involved.)

In some cases he won't even have to tell the lendere - in others he may have to report it but it isusually possible to word a letter that is generally positive, e.g here mentions the 53 years, explains that an indemnity policy is available (lenders love them!) but gives the solicitor a get out. As long as the letter isn't worded to frighten the lender they usually go along with the recommendatiions.

I'm retired now so may be a bit out of date but my impression is that most lenders would rely on their solicitors on this sort of point and with that length of statutory declaration I can't really see what the problem is.

If you want more reassurance about how likely the "real" owner will show up, go and talk to the others on the road and see what they say. Even if he does appaer you will basically ask him in court (if it ever gets that far) what he has been doing for the past 53 years if he hasn't tried stop use by your predecessors. (As fas I can remember with 40+ years use shown by stat decs the Land Registry will register a right of way over the road appurtenant to (that goes with) the property so once that is there it is too late for the "real owner".)

moneyistooshorttomention

Which seems to boil down to:

- is it a "track" (ie mud track across field for instance)?

OR

- a road (ie tarmacked road put there specifically for vehicles to drive on).?

I live in an unadopted road myself - but its a proper tarmacked road and a completely normal road in all respects (except that it hasn't been adopted by the Council - darn it). I wouldn't anticipate any problems selling the house on to someone needing a mortgage.

So - when you say "track" - can you explain more clearly what you mean by that?

Gallipot

As I said in my post, we're in the fortunate position that we DO NOT to need a mortgage on this property, my concern is that when we eventually sell will the banks be scared to lend?
I'm even more concerned having read the link for the first response.

davidmcn

If you can get an indemnity policy then it's mortgageable. It may still put some people off, but it's hardly a rare situation. Is the house currently mortgaged? Are the other two houses on the road?

Winter_Phoenix

Gallipot wrote: »

As I said in my post, we're in the fortunate position that we DO NOT to need a mortgage on this property, my concern is that when we eventually sell will the banks be scared to lend?
I'm even more concerned having read the link for the first response.

Not entirely sure why you are "even more concerned" now?

It says, "We would also doubt whether the majority decision is a serious problem for property owners where the track or driveway is not common land as such, and is used by the general public for vehicular access to a range of other premises other than the subject property. Even under the stringent test laid down by the majority judges in Massey v Boulden, we think it fairly likely that such a track or driveway would be treated as a "road to which the public has access" so that a right of way would probably accrue after 20 years.

And even in cases where the only vehicular access is over a track or driveway which is not used by the public in their motor vehicles, the compulsory purchase rights under the Vehicular Access Regulations would still of course apply."

Which looks pretty reassuring to me!

There is a similar "private road" near where I live, shared by nine houses and with ownership lost in the mists of time. In the past ten or so years seven or eight of the houses have been bought and sold, and I'm sure that most (perhaps all) of the new owners have mortgages.

AdrianC

Sounds very similar to several of our neighbours - whose access is via a compressed-gravel track off the lane (it's not just mud, but it's definitely not tarmac). It's not registered land, nobody really knows who owns it - but everybody's had access for so long that it's all just accepted. I can't see it ever being an issue. One house recently sold - no apparent issue. Another one was for sale - no issue raised.