No right of access over footpath to house!

sarlea

Hi, we are in the process of selling our late father's house (third attempt in 18 months). The house is set back from the road and is accessed from an apparently unadopted shared footpath for which we have no right of access. The house was built in the 1930s as a council house, so the footpath has been used for over 80 years. We've been asked to buy an indemnity policy to protect the buyer from any comeback for using the footpath. Surely this isn't necessary given that the footpath has been used for so many years by the residents and visitors without any issues. How else is anyone expected to access the house? 

Section62

sarlea said:

Hi, we are in the process of selling our late father's house (third attempt in 18 months). The house is set back from the road and is accessed from an apparently unadopted shared footpath for which we have no right of access. The house was built in the 1930s as a council house, so the footpath has been used for over 80 years.

Is the "unadopted shared footpath" one which runs parallel to the road, or does it go off in a different direction?  Is the road itself adopted?

What is the evidence that the shared footpath isn't adopted?

sarlea said:

We've been asked to buy an indemnity policy to protect the buyer from any comeback for using the footpath. Surely this isn't necessary given that the footpath has been used for so many years by the residents and visitors without any issues. How else is anyone expected to access the house? 

How much would the indemnity policy cost?  If not very much, and the buyer would be happy with that, then I'd certainly consider paying up to make hte problem go away.  Proving a right of access when it is currently not clear may involve a disproportionate amount of time/money compared to the cost of an indemnity policy.

If the land that needs to be crossed is owned by the council and at least adjacent to a public highway then the risk of being prevented from crossing the land is probably lower than if it were privately owned.  Councils are generally less likely to get stroppy and force the owner down the route of claiming RoW by 'necessity' than a private landowner might.

Loza2016

Nobody hates indemnity policies more than me but in this situation I would go with the policy. 

Assuming your talking a small price compared to the sale price. 

propertyrental

Who owns the footpath? 'Shared' by who?

I'm guessing you mean right of way rather than right of access?

You almost certainly have an Easement by Prescription (un-contested use for 20+ years).
And probably an Easement of Necessity (no other access exists).

Whether the buyers will be happy to purchase based on these theoretical rights, which might later have to be proven, is up to them. You could offer a Statement of Truth confirming your use for 20 (30 whatever) years which might help.

Or pay £100 or whatever for the insurance, and an easy sale........

TBG01

On the assumption the property hasn't burnt down in the past 80 years, would you do away with home insurance?

sarlea

Is the "unadopted shared footpath" one which runs parallel to the road, or does it go off in a different direction?  Is the road itself adopted?

See blue shaded path in attached image. Yes the road is adopted.

What is the evidence that the shared footpath isn't adopted?

The county council highways map shows that the footpath is not adopted. I have asked for confirmation from the council that we do have a right of access over the footpath (solictor's words), though I don't know if they own the footpath. It would have been owned by the council originally.

How much would the indemnity policy cost?

The cost of the plicy is £170 plus legal fees (£75 + VAT), so £260 in total.

I hate having to pay for something that isn't needed, especially on top of the legal fees we've already stacked up with the previous 2 buyers pulling out. The previous buyers solicitors never raised an issue with front access. They pulled out due to issues with rear vehicular access - but that's another story. It's definitely not an easy sale.

This house is becoming a real millstone around our necks. It's been empty since our father passed away in October  2021. If the buyers insist on the indemnity policy, why can't they pay for it themselves? Afterall it's them that will get the perceived "benefit", not us.

CSI_Yorkshire

sarlea said:

If the buyers insist on the indemnity policy, why can't they pay for it themselves? Afterall it's them that will get the perceived "benefit", not us.

Tell them that then - "if you don't pay an extra £260 then I will refuse to sell the house to you".

housebuyer143

£260 just buy it. It might not concern you but it might a buyer. It's a small amount of money to make it go away. 
That being said I would refuse to pay for said policy until exchange has taken place, else you risk the sale falling through and you have bought a useless policy 

Section62

sarlea said:

Is the "unadopted shared footpath" one which runs parallel to the road, or does it go off in a different direction?  Is the road itself adopted?

See blue shaded path in attached image. Yes the road is adopted.

What is the evidence that the shared footpath isn't adopted?

The county council highways map shows that the footpath is not adopted. I have asked for confirmation from the council that we do have a right of access over the footpath (solictor's words), though I don't know if they own the footpath. It would have been owned by the council originally.

How much would the indemnity policy cost?

The cost of the plicy is £170 plus legal fees (£75 + VAT), so £260 in total.

I hate having to pay for something that isn't needed, especially on top of the legal fees we've already stacked up with the previous 2 buyers pulling out. The previous buyers solicitors never raised an issue with front access. They pulled out due to issues with rear vehicular access - but that's another story. It's definitely not an easy sale.

This house is becoming a real millstone around our necks. It's been empty since our father passed away in October  2021. If the buyers insist on the indemnity policy, why can't they pay for it themselves? Afterall it's them that will get the perceived "benefit", not us.

I think there's a fair chance the path is housing land rather than highway - in which case when the house was first sold to a private owner the council should have given RoW over the path.  Are you sure that didn't happen?

I was going to ask about access to the rear - if you can get to the house from the back then 'necessity' may not apply to the path at the front.  Was the issue with access to the rear sorted out?

Do the electricity company have an easement to get to their poles at the back of the house?

bluelad1927

If you're that much against paying the £260 then don't and see where it gets you. The benefit to you is that you sell your house.

As I see it it's your problem to solve not the buyers

ThisIsWeird

It would appear that as many as 10 houses may require access via that blue path. Any of them have any idea who owns it? Or if their deeds provide for a RoW?

But, really, for £260, I think I'd just do it.