Section 38

Cheillie2020

Hi, 
I’m in the process of buying a 2 year old new build house. We’ve just had the search results back with only 1 enquiry raised which is: 

We note from our search that the road is not adopted.  Please provide a copy of the Section 38 Agreement dated 5th March 2015

When I go onto our local council and do a search on the Highway Adoption Status I can see a status of “Adoption Agreement” which says:
“Adoption Agreement - A route that is currently under construction and is subject to the provisions of Section 38 or Section 278 of the Highways Act 1980. When this agreement has been fulfilled the Council will "adopt" the road and it will become maintainable at public expense. If you require confirmation of the agreement date/developer(s)/surety, please email here. Copies of agreements can be supplied by Legal Services, please contact here. For general enquiries regarding the progress of roads subject to an adoption agreement, please contact the relevant developer.”

My question is, will this information be enough for my solicitor? I’m trying to avoid any further delays you see and worried that this document might take a while to obtain from the sellers solicitor. 

Any advice would be appreciated 

user1977

I think your solicitor knows what a Section 38 Agreement is - what they want is to see a copy of this one.

Cheillie2020

I don’t dispute that they don’t know what one is. What I’m saying is doesn’t this status of “Adoption agreement” confirm that the council will eventually be adopting the road. 

What else does the 38 actually say other than that the council have agreed to eventually adopt the road? 

Grumpy_chap

While you may wish to make your own enquiries, your Solicitor will ask the question of the vendor's Solicitor to obtain the record via formal channels.  The vendor's Solicitor may need to revert back to the Developer.  Any copy you locate in the mean-time will be treated by the Solicitors as for information only.

AdrianC

Cheillie2020 said:

I’m in the process of buying a 2 year old new build house. We’ve just had the search results back with only 1 enquiry raised which is: 

We note from our search that the road is not adopted.  Please provide a copy of the Section 38 Agreement dated 5th March 2015

...
My question is, will this information be enough for my solicitor? I’m trying to avoid any further delays you see and worried that this document might take a while to obtain from the sellers solicitor. 

He's not asking you. He's asking them. It's their problem to provide it.

The question for you is... are you bothered if the road is unadopted?

Cheillie2020

Yes, while I understand it’s their problem to provide it I was just hoping to see if I could find the answer myself. My solicitors and the sellers solicitors are taking a lifetime to do the smallest of things so I was just trying to do some digging for peace of mind. 

Should I be bothered if the road is unadopted at this stage? It’s clearly going to eventually be adoption judging by the status. Surely it’s pretty normal for new developments to be unadopted for a period? 

Cheillie2020

Another option if it doesn’t arrive within the next few days, could we get indemnity insurance? 

Would the lender even give the OK without the section 38 being received? Even though as I’ve said above, it’s clearly going to be adopted eventually 

Justonemorecupoftea

Do you know if there are any charges due from people who live on the estate to cover the costs of repair/maintenance? How are repairs/maintenance organized currently?

You probably need to understand those before you decide it's nothing to worry about - "Will" become adopted is very vague. If they've not done it in the two years since your property was built, what makes you think they'll be in a hurry to? You may be at risk of being liable for expensive repair bills and/or not have clear ways of getting repairs made when needed.

RelievedSheff

Getting highways adopted under a S38 agreement is a lengthy process.

It could well be that the "adoption agreed" you have found on the council website is only an agreement that the engineering drawings submitted to the council have been agreed as suitable construction details. The developers will have to construct to these details under supervision from highways inspectors and once they are all happy with the highways they will then go onto a period of maintenance before the highways department will eventually adopt them. 

This process can take years to complete.

We are also on a new build estate that is 2 years old. The roads near us have not had their top surface course applied yet so it will be a long time before they are adopted yet. It doesn't bother us as we know that they will be adopted and the local authority have a bond from the developers should they not finish the highways then the bond will cover the costs associated with finishing the highways.