Searches say road not adopted but section 38 in place, council say no section 38? Advice please

lilsweetie

Hi

Searches have come back on the property I wish to buy, it says that the road is unadopted but a section 38 is in place......

The development has been finished for 8 years now, my solicitor has asked for the S38 to be sent to them.

I ring the council today to ask why it hasn’t been adopted etc, and the man laughs when I said a section 38 and says there isn’t one in place, he says the roads are up to an adoptable standard but it’s up to the developer to sort an adoption, he then looks on his computer and says that the drains haven’t been adopted and that’s what they are probably waiting for in order to adopt?
I notice my solicitor has also asked about a s106 to be sent, so I assume this is to do with the drains,

My question is where does this leave us? Who is actually responsible for the road and drains? The man at the council said they are the developers responsibility and after calling my solicitor she said if the man at the council is correct about no agreements in place then we could take indemnity out?

Should I just be walking away from this? I don’t understand it all

[Deleted User]

At the moment it seems the developers are responsible. A section38 is just a document that states if the roads and services are done to a certain standard then the council will (/might?) adopt the roads.
It doesnt mean that the adoption has taken place and until this point it is still the responsibility of the developers.

Have you spoken to any residents to see if they make any payments to anyone?

What do you hope to achieve with an indemnity policy?

lilsweetie

Thanks for the reply. I spoke to the current owners (they have part ex’d the house for a new build) and they said they don’t pay any maintenance charges at all. We are actually due to go around tomorrow to measure for blinds etc so I will ask about the road situation but they did say they have no estate charges etc.

I have no idea with the indemnity, it’s just what the solicitor told my partner when he rang. I just want to check it’s not going to be a case of we end up paying for road and drain repairs, and it does intact fall upon the developer.

tom9980

The worst case is the developer goes bust and its not been adopted, then over the years it needs maintenance that nobody will pay for.

davidmcn

If you don't understand the advice from your solicitor, then talk to them again. It's what you're paying them for.

lilsweetie

Thank you Tom, and David easier said than done to get through to a solicitor sometimes!!

In the event of road fixing then would the developer HAVE to come and get it sorted, are they legally obliged I mean to do repairs? How would it work with drains? I understand that drains in my boundary are my responsibility but drain problems on the street for example?

DoaM

Are the developer still on site? If it's an established estate and the developer is long gone then any liability will likely fall to the freeholders of the estate. What do the deeds say about the public areas of the estate?

lilsweetie

The developers have long gone..... that’s where my worry is.
I highly doubt they are going to claim responsibility for the roads 8 years later. Don’t know what to do. If a section 38 does come back will that cover our responsibility or will it still fall on the freeholders?

Slithery

No. As stated above an S38 only means that the council may choose to adopt the road if it is brought up to the correct standard. With council funding nowadays it's unlikely that this will happen.

Thrugelmir

lilsweetie wrote: »

Thank you Tom, and David easier said than done to get through to a solicitor sometimes!!

Little point in your solicitors speculating until they have all the facts.

G_M

lilsweetie wrote: »

Thank you Tom, and David easier said than done to get through to a solicitor sometimes!!

In that case pop in and have a chat.



(tongue in cheek but serious point - this is why I always recommend using someone local who you've actually met!)