The road not taken

Question: I am selling my flat, which has a parking space at the back. I get to it via a private driveway that runs behind five other properties.

My solicitor has said I must swear a “statutory declaration” and get an indemnity policy for the buyers because the access is not owned by the council. Why has this cropped up now?

Answer: It is a pity your solicitor didn’t get all this sorted when you bought the flat yourself.

Some roads get “adopted” by local authorities but, otherwise, it is difficult to establish who owns an unadopted road. Your new solicitor must prepare a declaration confirming that since owning your flat, you and your visitors have had uninterrupted use of the rear access way without “objection or hindrance” and that you have never been asked to pay for the privilege.

Let’s hope the buyer’s solicitor doesn’t ask you to obtain a similar declaration from the people you bought the flat from because that could be a time-consuming nuisance.

As there appears to be no legal right to use the access way, you need to pay for indemnity insurance to cover the buyers. This will provide some protection for them in case someone suddenly tries to stop them using the road.

If you had obtained an indemnity policy from the seller when you bought, you could simply pass it on to the buyers now.

It is also worth checking with your original solicitor to see why this wasn’t dealt with when you bought, as there might be a good reason that makes it unnecessary now.

What's your problem?

If you have a question for Fiona McNulty, email legalsolutions@standard.co.uk. We regret that questions cannot be answered individually.

Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors www.ttuk.com.