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

GDB2222

Section62 said:

eddddy said:

...
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.
...

They may well do.  But it isn't a feeling that they are misunderstanding the law, it is a fact.  The only offence in S184 is "...contravention of any condition imposed under subsection (1)(b)..." - therefore it follows that if no notice has been served under subsection (1)(b) then no offence under this section is committed.  S184 doesn't even require a dropped kerb crossing to be constructed for the footway/verge to continue to be used as an access, the conditions which could be imposed under subsection (1)(b) are a possible alternative to having a crossover constructed.

Trading Standards and The Property Ombudsman would do well to purchase a copy of Michael Orlik's excellent "An introduction to Highway Law" (4th Ed) and read section 7-007, which explains this part of the law in simple terms.

Would an Ombudsman legally be able to decide against an agent who provides clear evidence the "Assured Advice" is incorrect?

If you provided legal expert opinion, the Ombudsman ought to take it into account. If the ombudsman chose to act against that advice, or otherwise misdirected himself about the law, you could consider judicial review. 

However, in this case, it looks like the matter can be put right for around £2000 - the cost of dropping the kerb. The cost of a judicial review might be £50k, say, taking both parties' costs into account. Plus, all the time and mental energy involved. I'd be really surprised if an agent would bother (once he'd calmed down over the perceived injustice). 

Section62

Ditzy_Mitzy said:

Secondary point: whilst there seems to be debate regarding whether or not a dropped kerb creates a right for a vehicle to cross the pavement adjacent to where it is sited, the absence of a dropped kerb confers less, or no, legal protection to vehicular access to land beyond the pavement.  There's nothing to stop anyone, at the present time, parking across the mouth of the 'drive' and stranding any car parked therein.  If a dropped kerb were present, that wouldn't be allowable; the legal status of a dropped kerb, or obstructing the access it facilitates, is solidified in Section 86 of the Traffic Management Act 2004.  Exceptions apply in the case of a householder obstructing his/her own dropped kerb.  

In sum: drop the kerb or risk being sunk by cavalier (or Astra, Mondeo or anything else) parkers.  

I agree with your summation, but for different reasons.

The bit in bold isn't strictly correct.  Other than in a designated parking place (a bay marked with white lines) parking anywhere on the highway could be an offence of causing "unnecessary obstruction" (Construction and Use Regs 1986 / RTA 1988).  The test of "unnecessary" would be one for the magistrates to decide in the case where someone parked across an access (whether with a dropped kerb or not) which blocked a vehicle from entering the highway. (if other on-steet parking was available nearby then there could be a real risk of conviction).  In practical terms the police are unlikely to take any action - they are often reluctant even where there is a dropped kerb - but drivers don't have carte blanche to park on a highway obstructing an access (unless they are in a designated parking place and there is no dropped kerb).

S86 of the TMA 2004 creates an additional contravention which sits alongside the obstruction offence. The DfT borrowed this provision from the London Local Authorities and Transport for London Act 2003.  But it is only applicable in a special enforcement area and is a prohibition enforced under the decriminalised parking enforcement regime, not an offence.  It doesn't alter the legal status of a dropped kerb itself, only provides for an easy way for local authorities to carry out enforcement. (The LLA&TfL Act provision came about because the boroughs were fed up with the police not enforcing dropped kerb obstruction, particularly at pedestrian crossing points)

So I agree - without a dropped kerb you are unlikely to get any sympathy from the police, and the LA couldn't enforce under S86.  A private prosecution might be an option, but likely more costly than getting a dropped kerb.

monkey-fingers

GavCB said:

How is this the Agents issue? As you saw no dropped kerb at the viewing LAST YEAR, the fault lies with you as the buyer. You say that parking across the pathway is illegal, but the parking is not across the pathway? Had you have had a private survey carried out, the chances are this would have been mentioned by the surveyor. It seems you are looking to the Agent to compensate you for a new boiler and an EV charging point. Good luck with that. 

The OP isn't at all.
The OP is asking to be compensated for a driveway sold to them that in fact isn't a driveway.

As someone pointed out above, EAs are supposed to be professionals. Stating a house has a driveway and expecting someone who has never had one to know that you need a dropped kerb is frankly not professional.

And rightly, the OP will get reimbursed here (probably best you read the rest of the thread)

Emmia

monkey-fingers said:

GavCB said:

How is this the Agents issue? As you saw no dropped kerb at the viewing LAST YEAR, the fault lies with you as the buyer. You say that parking across the pathway is illegal, but the parking is not across the pathway? Had you have had a private survey carried out, the chances are this would have been mentioned by the surveyor. It seems you are looking to the Agent to compensate you for a new boiler and an EV charging point. Good luck with that. 

The OP isn't at all.
The OP is asking to be compensated for a driveway sold to them that in fact isn't a driveway.

As someone pointed out above, EAs are supposed to be professionals. Stating a house has a driveway and expecting someone who has never had one to know that you need a dropped kerb is frankly not professional.

And rightly, the OP will get reimbursed here (probably best you read the rest of the thread)

I do think the OP needs to take some responsibility for failing to notice the lack of a dropped kerb, between the road and an area that is presumably set up as a driveway, when they viewed the property. 

Eldi_Dos

I can only praise the energy provider for their stance, makes you wonder how many people who took shortcuts are going to be caught out like this.

Out of curiosity would anyone know how much a charging point adds to a properties value?

silvercar

Eldi_Dos said:

I can only praise the energy provider for their stance, makes you wonder how many people who took shortcuts are going to be caught out like this.

Out of curiosity would anyone know how much a charging point adds to a properties value?

To anyone owning an EV, probably about 1-3k. The cost of a charging point is about £1.5k including fitting.

Two advantages in having an EV already fitted. Firstly it’s hassle free once you move in. Secondly, without one already in place, there can be delays with getting the DRO to confirm the electrics at the property are already unlooped, or worse that they aren’t unlooped and the work needs doing. That can cause delays of a few months alone.

Anaida9999

eddddy said:

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.

so on this basis the agent should not have said that the property had a 'driveway'? , they did not say it had off road parking though. but having a driveway to me suggests that it is for parking otherwise what is a driveway for?  Defining Driveways in the UK | Driveway Choice      if it does not have a dropped kerb i cannot legally use this driveway

Emmia

Anaida9999 said:

eddddy said:

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.

so on this basis the agent should not have said that the property had a 'driveway'? , they did not say it had off road parking though. but having a driveway to me suggests that it is for parking otherwise what is a driveway for?

What was present at the property when you viewed it? Was there hard standing with a car parked on it, was there hard standing with no car but space for a car to pass through from the road, by driving across the pavement? Was there grass with a fence / wall blocking direct vehicular access from the road?

Anaida9999

Emmia said:

Anaida9999 said:

eddddy said:

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.

so on this basis the agent should not have said that the property had a 'driveway'? , they did not say it had off road parking though. but having a driveway to me suggests that it is for parking otherwise what is a driveway for?

What was present at the property when you viewed it? Was there hard standing with a car parked on it, was there hard standing with no car but space for a car to pass through from the road, by driving across the pavement? Was there grass with a fence / wall blocking direct vehicular access from the road?

there was hard standing with no car but space for a car to pass through from the road, by driving across the pavement?

Emmia

Anaida9999 said:

Emmia said:

Anaida9999 said:

eddddy said:

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.

so on this basis the agent should not have said that the property had a 'driveway'? , they did not say it had off road parking though. but having a driveway to me suggests that it is for parking otherwise what is a driveway for?

What was present at the property when you viewed it? Was there hard standing with a car parked on it, was there hard standing with no car but space for a car to pass through from the road, by driving across the pavement? Was there grass with a fence / wall blocking direct vehicular access from the road?

there was hard standing with no car but space for a car to pass through from the road, by driving across the pavement?

In which case I'm surprised you failed to notice the lack of a dropped kerb.