Selling house, car gets parked in garden, no dropped kerb.

waveydavey48

Hi, opinions please.

The title pretty much says it. I'm selling my house, about 5 years ago we laid the rear garden to gravel and drive over the pavement to park there. Many neighbours do the same, it's a quiet area at the rear of the houses.  We never gave a thought to the legality of doing this.

Buyers solicitors have raised issue as follows,

"It is noted the rear garden is laid to gravel to provide for parking facilities at the property. Is access over a footpath? If so, please confirm it is served by a crossover agreement and dropped kerb installed by the Council. Please also provide covenant consent for the creation of this parking space within the garden area."

What should I do?

Thanks.

p00hsticks

Be honest and say that access is over a footpath but there is no crossover agreement and you have no consent.
It's then up to the buyer to decide if they want to proceed 

la531983

Be honest, you are scundered here tbf. Likely have to drop the price to cover the post of the new buyers applying for the relevant permissions and getting the kerb dropped, or do it yourself before sale.

waveydavey48

Thanks folks, I have disclosed as required and am awaiting my solicitors advice. A genuine oversight, simply never thought about it and I accept I will have to put it right. So it's a case of making an application to the council and paying someone to carry out the work presumably?

FlorayG

Consider that the buyer may not want to park on the garden, in which case it's irrelevant. I would wait until you have an offer and see if that offer is dependant on the parking being legal

pinkshoes

waveydavey48 said:

Thanks folks, I have disclosed as required and am awaiting my solicitors advice. A genuine oversight, simply never thought about it and I accept I will have to put it right. So it's a case of making an application to the council and paying someone to carry out the work presumably?

You can apply for permission to the council to drop the kerb to install a driveway. You have to use one of their contractors and it costs around £1000 to get the work done. 

If the council deem it not appropriate to be driving up this bit of pavement to park in back gardens, they might put a stop to it!

Did you advertise the property as having parking?

Dustyevsky

It could take two months to apply for and receive a judgement on planning, with no guarantee of success.  One thing you could do is check on the local authority's website whether anyone has already done this and been given permission. If they have, this would put a better spin on things.

It's likely the buyers' solicitor will suggest they claim for the potential cost of lowering the kerb using a council -approved contractor, against which you could argue they agreed to buy the house as seen. This would, perhaps, be betterment. Also, if the other neighbours' have surreptitiously done the same, would the new occupants of your house really wish to risk drawing the council's attention to the situation?

Quite a lot to ponder!

Section62

waveydavey48 said:

Hi, opinions please.

The title pretty much says it. I'm selling my house, about 5 years ago we laid the rear garden to gravel and drive over the pavement to park there. Many neighbours do the same, it's a quiet area at the rear of the houses.  We never gave a thought to the legality of doing this.

Buyers solicitors have raised issue as follows,

"It is noted the rear garden is laid to gravel to provide for parking facilities at the property. Is access over a footpath? If so, please confirm it is served by a crossover agreement and dropped kerb installed by the Council. Please also provide covenant consent for the creation of this parking space within the garden area."

What should I do?

Thanks.

"I can confirm there is no crossover agreement in place but understand there is no legal requirement to have one unless the council specifically requires it.  If you or your client believe otherwise, please provide details of the legislation you think requires such an agreement to be entered into."

Grumpy_chap

pinkshoes said:

You can apply for permission to the council to drop the kerb to install a driveway. You have to use one of their contractors and it costs around £1000 to get the work done. 

The costs may well be higher than that.  Ours cost over £3k and that was 10 years ago.  The Council add loads of fees on top of the construction cost.
It also won't be quick.

Section62 said:

"I can confirm there is no crossover agreement in place but understand there is no legal requirement to have one unless the council specifically requires it.  If you or your client believe otherwise, please provide details of the legislation you think requires such an agreement to be entered into."

That may not be correct.
AIUI, vehicle crossover is always required when intending to cross the footway with a car.  What does vary is the need for planning permission:
https://www.surreycc.gov.uk/roads-and-transport/permits-and-licences/vehicle-crossovers-or-dropped-kerbs/guidance#section-1

I suggest the OP responds to the direct question asked with the minimum of fluff.  It is then for the Purchaser (or their Solicitor) to ask follow up questions.  The OP probably does not want to get involved with arranging a crossover if none exists:

waveydavey48 said:

"It is noted the rear garden is laid to gravel to provide for parking facilities at the property. Is access over a footpath? If so, please confirm it is served by a crossover agreement and dropped kerb installed by the Council. Please also provide covenant consent for the creation of this parking space within the garden area."

This is how I would respond:

"I confirm the rear garden is laid to gravel.  Access is over a footpath.  There is no crossover agreement in place and no dropped kerb installed by the Council.  The details of any covenants relating to the property are contained within the Land Registry Deeds, which I understand you are already sighted."

Clear, sharp, factual.  Remember whatever is said is legal in nature and may come back to bite you, so say nothing you don't need to say and say nothing that may not withstand challenge. (Note, for example, the very simple statement that the rear garden is laid to gravel, but no comment on that gravel providing for parking facilities.)

Don't offer to get a crossover put in - that is up to the future owners if they wish.  The current Purchaser may request a reduction in price to reflect constructing a crossover to which you may decide to agree.  The current Purchaser may withdraw at any time (for this or any other reason), and a different Purchaser may not want the garden laid to gravel in any case and might turf it all and fence it off.

Section62

Grumpy_chap said:

That may not be correct.
AIUI, vehicle crossover is always required when intending to cross the footway with a car.  What does vary is the need for planning permission:
https://www.surreycc.gov.uk/roads-and-transport/permits-and-licences/vehicle-crossovers-or-dropped-kerbs/guidance#section-1

I suggest the OP responds to the direct question asked with the minimum of fluff.  It is then for the Purchaser (or their Solicitor) to ask follow up questions.  The OP probably does not want to get involved with arranging a crossover if none exists:

It is correct. There is nothing in the relevant legislation which requires an 'agreement'.

Surrey are muddying the waters by referring to a 'license'. It would be correct to say the householder would need a highway license to employ their own contractor to construct the crossover, but the license is for the work itself, not 'permission' to drive a vehicle from the carriageway onto private land adjacent to the highway.  If the householder served notice on the highway authority requiring them to construct the crossover then no license would be required.

Planning consent may be required for the formation of an access to the highway if it is a classified road - or potentially if the property is in a conservation area or a listed building.  The construction of the crossover doesn't require planning consent because it is minor work within the highway and therefore permitted development.

That said, I agree with your overall approach as it is unlikely the buyer's solicitor knows much about highway law and will dig their heels in until a box has been ticked.  (There's no legal requirement to have a vehicle crossover to own a property with areas of gravel that could be used for parking)

Grumpy_chap

Section62 said:

It is correct. There is nothing in the relevant legislation which requires an 'agreement'.

So, is this statement from Bromley incorrect?

" It is illegal to drive over the pavement unless there is a crossover.
There is no right to drive across any public footway to access a private forecourt or driveway unless there is a properly built vehicle crossover (section 184, Highways Act 1980)."

https://www.bromley.gov.uk/roads-highways-pavements/access-drive-crossovers-dropped-kerbs

I still go with saying as little as possible.
There may be an area laid to gravel.  Such areas can be used for parking or any other number of uses.  Best to avoid speculation in the correspondence with the Purchaser's Solicitor.  Neither confirm nor deny outside of clearly proven fact.

EDIT to add a link to the Highways Act:
https://www.legislation.gov.uk/ukpga/1980/66/section/184