Property Sold stating driveway but legally I cannot use it as there is no dropped kerb

Grumpy_chap

Anaida9999 said:

Hi

I bought a property last year which on the Estate Agents sale particulars stated there was 

1) a Driveway
2) the property information form clearly stated that 'parking was available on the Driveway.'

What exactly did the EA listing say?
This might hinge on technicalities.

If the EA listing said "front garden laid to hardstanding for possible use as a driveway" that is different from "driveway".

I don't believe that the property information form has anything to do with the EA.  AIUI, that is completed by the Vendor and passed through their Solicitor to your Solicitor to you.

I note the comments from others about whether you noticed the lack of dropped kerb when viewing the property and your response that you did not know about dropped kerbs as you did not have a property with a drive before.  I don't really think that makes any difference as, presumably a qualified driver, you would know the rules pertaining to driving on a pavement.

Section62

Anaida9999 said:

...
but as I have since found there is no dropped kerb I cannot legally park on the 'Driveway' , I did not have a driveway on my previous house as it was a terraced house so only found out about the dropped kerb requirement as I want an EV charging point installed. So that will cost me £2000. just spent 2k on a new boiler as well so this is a lot to spend on the dropped kerb.
...

That isn't true, unless the planning authority have served an enforcement notice prohibiting the driveway being used to park vehicles.

Anaida9999 said:

...
However there is a case on this forum that TPOS ruled against an estate agent and said - he EA advertised the property as having off street parking, but the Ombudsman said that a professional EA should have known that driving across the pavement is illegal, if there is no dropped kerb - so should not have advertised off road parking. Sold House With Driveway Without Drop Kerb - Page 5 — MoneySavingExpert Forum
...

That is only true if the highway authority have served notice under the Highways Act 1980 S184(1) prohibiting the use of the verge/footway as a crossover.  An EA wouldn't necessarily know whether or not such a notice had been served on the property owner.  A professional ombudsman should know what the law actually says before offering opinions on what others should know.

I wouldn't rely on that ombudsman ruling, because it would be relatively straightforward to demonstrate the ombudsman erred in the law.

It probably isn't worth arguing with the energy company - but it would be interesting what they would do if someone who lives on an unkerbed road applied for a charging point to be installed.  Is the condition one they are imposing to get a discounted/free install, or would you paying the full cost?

eddddy

Anaida9999 said:

does anyone have any views on this should a complaint be made against the Estate Agent or the seller via small claims court (fee of £115 is not a lot if that route it taken)

Assuming the estate agent is a member of The Property Ombudsman Scheme - you would probably be better off complaining to the Ombudsman (after complaining to the estate agent), rather than going to court.

It's free, and unlike a court, the Ombudsman would actively investigate to uncover the facts. As opposed to a court, where you would have to uncover the facts and present them to the court.

And the Ombudsman is probably more biased towards the consumer than a court would be.


As you say, the Ombudsman found in the buyer's favour in a similar case in 2013 and ordered the estate agent to pay compensation to the buyer:
See page 13 of this document: https://www.tpos.co.uk/images/documents/interim-reports/interim-report-1-2013.pdf

But obviously, every case is different - so it depends on the precise facts of your case.

Anaida9999 said:

The Estate agents are saying its not their fault as they rely on the vendor to tell them this information. ie - We take instruction from our Vendors when it comes to the advertising of their property and information is either provided or approved by them prior to the listing going live.  As evidenced by the picture of the property information questionnaire you have supplied, we have used the wording they have referenced. 

FWIW - the Property Ombudsman appears to take a very dim view of Estate Agents who say "It's not our fault, that's what the vendor told us."

The Ombudsman's position is that property sellers are amateurs, whereas Estate Agents should be property professionals.

If something doesn't seem right (like if the seller says there is a driveway, but there's no dropped kerb), the Ombudsman says the Estate Agent should investigate further. (Or include a specific disclaimer about the 'driveway' in their listing. A general disclaimer at the bottom of the page wouldn't be sufficient.)

GDB2222

Section62 said:

Anaida9999 said:

...
but as I have since found there is no dropped kerb I cannot legally park on the 'Driveway' , I did not have a driveway on my previous house as it was a terraced house so only found out about the dropped kerb requirement as I want an EV charging point installed. So that will cost me £2000. just spent 2k on a new boiler as well so this is a lot to spend on the dropped kerb.
...

That isn't true, unless the planning authority have served an enforcement notice prohibiting the driveway being used to park vehicles.

Anaida9999 said:

...
However there is a case on this forum that TPOS ruled against an estate agent and said - he EA advertised the property as having off street parking, but the Ombudsman said that a professional EA should have known that driving across the pavement is illegal, if there is no dropped kerb - so should not have advertised off road parking. Sold House With Driveway Without Drop Kerb - Page 5 — MoneySavingExpert Forum
...

That is only true if the highway authority have served notice under the Highways Act 1980 S184(1) prohibiting the use of the verge/footway as a crossover.  An EA wouldn't necessarily know whether or not such a notice had been served on the property owner.  A professional ombudsman should know what the law actually says before offering opinions on what others should know.

I wouldn't rely on that ombudsman ruling, because it would be relatively straightforward to demonstrate the ombudsman erred in the law.

It probably isn't worth arguing with the energy company - but it would be interesting what they would do if someone who lives on an unkerbed road applied for a charging point to be installed.  Is the condition one they are imposing to get a discounted/free install, or would you paying the full cost?

Driving on the pavement is an offence except to gain lawful access to property. Virtually all councils around the country claim that it’s not lawful access unless the highway authority permits it. 

You may well be right, but only if lots of councils are misleading people.

Anaida9999

Grumpy_chap said:

Anaida9999 said:

Hi

I bought a property last year which on the Estate Agents sale particulars stated there was 

1) a Driveway
2) the property information form clearly stated that 'parking was available on the Driveway.'

What exactly did the EA listing say?
This might hinge on technicalities.

If the EA listing said "front garden laid to hardstanding for possible use as a driveway" that is different from "driveway".

I don't believe that the property information form has anything to do with the EA.  AIUI, that is completed by the Vendor and passed through their Solicitor to your Solicitor to you.

I note the comments from others about whether you noticed the lack of dropped kerb when viewing the property and your response that you did not know about dropped kerbs as you did not have a property with a drive before.  I don't really think that makes any difference as, presumably a qualified driver, you would know the rules pertaining to driving on a pavement.

it just said under Key Features - DRIVEWAY

TeaBee72

You viewed the property and knew about the fact it was not dropped. 

You have now educated yourself that this isn’t a driveway. The facts of what you purchased have not changed. What has changed is your knowledge of the law. 

Sorry I can’t see how the seller has any case to answer UNLESS you can prove they acted dishonestly…

Emmia

You could always apply to have the kerb dropped.

Section62

GDB2222 said:

Section62 said:

Driving on the pavement is an offence except to gain lawful access to property. Virtually all councils around the country claim that it’s not lawful access unless the highway authority permits it. 

You may well be right, but only if lots of councils are misleading people.

Lots of councils are misleading people.

As an example, Doncaster council say "It is an offence under the Highways Act 1990 drive over the public footway without an approved dropped crossing."

Good luck finding the Highways Act 1990 to check. 

And S184 of the Highways Act 1980 does not have the effect Doncaster claim.

It isn't something I'd advise people to do, but the OP could use the driveway for parking unless the highway authority has already served notice under S184(1).  Given the arbitrary reasons councils now give for refusing crossovers I'm not sure in the OP's position I'd ask for one... but it may cause problems when they come to sell.

silvercar

user1977 said:

Anaida9999 said:

sheramber said:

Have you been using the drive to park by driving over the pavement?

Several houses around here have no dropped kerb but have ramps in the gutters.
 Not legal  but nobody seems to care. 

my energy provider wont install an electric charge point unless the kerb is dropped 

Why not?

And why can't you get someone else to install it?

This ^^^.

just get someone else to install it. 

eddddy

Looking into this a bit further, Trading Standards and The Property Ombudsman seem to have issued "Assured Advice" to estate agents that where no dropped kerb exists...

"any agent advertising such a property should make it clear where there is ‘potential for off road parking’"

LInk: https://www.tpos.co.uk/images/Advice_Issued_-_15_-_CPRs_Additional_Situations_v2.pdf


@Section62 might feel that Trading Standards and The Property Ombudsman have based this "Assured Advice" on a misunderstanding of the law. 

But as it is "Assured Advice", I suspect that the Ombudsman would decide against any agent who ignored that advice.


I guess it's similar to the "Assured Advice" that an attic room without building regulations cannot be advertised as a bedroom. There is no law saying it cannot be used as a bedroom. And the RICS and insurance companies would describe it as a bedroom (if it has a bed in it and is used for sleeping). But estate agents are still required to follow that advice.