Section 38 query

heyjoe

We are trying to sell our property. When bought the property over a decade ago it was a new build, and the development is still being built on. The roads are still not finished. There is currently a Section 38 in place, which has been confirmed by the council. 

Buyers solicitor have said that the pathway in front of our house (there are 2 paths, 1 next to the road and 1 next to the houses) and the access to our rear parking space are not part of the S38.  

The developers are nowhere near finishing the site, so its not going to be adopted anytime soon. So, my question is, is there any way we can get this resolved, any type of insurance we can consider?

Thanks in advance.
 



 

user1977

heyjoe said:

Buyers solicitor have said that the pathway in front of our house (there are 2 paths, 1 next to the road and 1 next to the houses) and the access to our rear parking space are not part of the S38.  

And have they been completed? Are they intended to be adopted?

If they're finished, and are intended to remain privately-managed, I don't see there's necessarily any problem.

penners324

Wouldn't that path and access to the parking be covered in the lease and thus covered in the service charges to the leaseholders management company?

penners324

That land is likely to be a shared area in the freehold....

heyjoe

user1977 said:

heyjoe said:

Buyers solicitor have said that the pathway in front of our house (there are 2 paths, 1 next to the road and 1 next to the houses) and the access to our rear parking space are not part of the S38.  

And have they been completed? Are they intended to be adopted?

If they're finished, and are intended to remain privately-managed, I don't see there's necessarily any problem.

The pathway and the rear access have been completed for over a decade. Nothing has changed to those areas of land in that time. 

We don't have any service charges to pay, as we are freehold. The Developers, who are a very large well know company, have always maintained the road and pathways and any grass areas. The Developers built these areas.

Would some sort of indemnity insurance cover what the solicitor is talking about possibly? 

penners324

The solicitor is trying to find out who's liable for the upkeep of those areas if they're not due to be adopted.

Your original paperwork should advise on this.

There may still be an obligation of the owner to contribute to the upkeep and maintenance of those areas when the developer leaves. 

heyjoe

penners324 said:

The solicitor is trying to find out who's liable for the upkeep of those areas if they're not due to be adopted.

Your original paperwork should advise on this.

There may still be an obligation of the owner to contribute to the upkeep and maintenance of those areas when the developer leaves. 

Thanks for the reply. I've had a look through the original paperwork, and it doesn't help the matter at all unfortunately.

Out of curiosity, is there anywhere a member of the public can ring to see what roads are Section 38s? I'd be interested to see the paperwork as I've never seen it for where I live. 

I understand what the solicitor is doing and why, it's just incredibly stressful trying to work out how we can resolve such a situation. 

So, if we assume worst case scenario, all roads on estate don't get adopted, (which I'm guessing is possible), and the path and rear access don't get adopted. What can we do now as sellers to help our buyers? Unadopted road/land indemnity insurance? Some other insurance? Any other ideas?

Thanks in advance 

user1977

heyjoe said:

user1977 said:

heyjoe said:

Buyers solicitor have said that the pathway in front of our house (there are 2 paths, 1 next to the road and 1 next to the houses) and the access to our rear parking space are not part of the S38.  

And have they been completed? Are they intended to be adopted?

If they're finished, and are intended to remain privately-managed, I don't see there's necessarily any problem.

We don't have any service charges to pay, as we are freehold. The Developers, who are a very large well know company, have always maintained the road and pathways and any grass areas. The Developers built these areas.

You might not have been billed for any yet, but are you sure you aren't liable for a share of the maintenance costs? The developers aren't going to be carrying out maintenance at their own cost for ever.

It doesn't sounds like there's anything necessarily "wrong" requiring indemnity insurance, just the solicitors asking the wrong questions.

heyjoe

I've had a look at all the documentation we have from over a decade ago, and nowhere in it can I see anything in it about us having to pay a share of any maintenance costs.

From the little I do know, I know the developer has a section 38, so I'm guessing at some point it'll get passed to the council to maintain. I don't have a copy of that section 38 though.

At this point I'm out of ideas, I'll just have to leave it to our solicitors and see what they can do.
Wish us luck.
Thanks.

babybluetoo

You should be able to get a copy of the Section 38 Agreement from your local County Council or whoever is responsible for highways in your area.   The plan will show exactly which areas are to be adopted once the estate roads have been completed to an acceptable standard.  There is usually a charge for the copy, our local council charges about £40. You can request this for yourself, it doesn't have to be a solicitor that requests it. Hope that helps