'Our bungalow fronts onto a public footpath. Do we have to pay to repair it?'

The Telegraph’s Property Doctors answer your questions

Dear Property Doctors,

We are one of four bungalows, built in the early 1960s, which front onto an unadopted lane in a small market town.

The lane is also a public footpath. It is used by about 200 people a day on foot from the nearby housing estate, which was built in the 1970s, as well as delivery vehicles and any other vehicles that wish to use it. 

We have not been able to establish the owner of the lane as it is unregistered. We have tried unsuccessfully to get Highways England to fund its upkeep.

Are we responsible for its maintenance and are we liable if anyone injures themselves using this footpath?

We have owned the bungalow for 56 years. Our neighbours, in that time, have contributed to the upkeep of the lane. I have always maintained that it isn’t our responsibility because it is a public footpath which we have a right of access over. Our deeds state it is a “public highway”.

The owners of the bungalows are all elderly and do not have the funds to pay for the upkeep of the lane. Can you advise please?

SB, by email

There is a general presumption in the case of all “highways” (roads, whether adopted or not adopted), that the “subsoil” (the earth underneath the surface of the highway itself) is owned by the houses on either side up to the midpoint of the road.

This is probably the case here. However, this ownership does not mean that you or your neighbours are liable to maintain the road. I can well appreciate that you have done so for your own benefit but, in my view, that would not mean that you would be liable for any accidents. The case would be different if the works you had done caused the accident rather than general deterioration in the state of the roadway. 

Unfortunately, the upkeep of private roads of this nature is always a problem. It is particularly an issue where, as here, they are highways, which means that anyone can use them. You could ask the local authority what they would charge to adopt the highway so that they would be responsible for its upkeep. I suspect, however, that the cost would be prohibitively high.  

Often in these cases a company is set up, which is owned by the owners of all the houses who use the highway. Everyone agrees to pay a service charge to the company for the cost of maintaining the road. The problem is making a buyer liable to pay when a house is sold.  

One way of doing that is to have a clause in the articles that binds the members of the company when it is set up, saying that they have to contribute. There would have to be a provision making it an obligation for an owner who sells to ensure that the buyer becomes a member of the company so that they are bound to contribute. 

The alternative is for a formal agreement to be entered into by each owner with the company, which will be registered at the Land Registry, requiring the owner to pay. There would also have to be a restriction placed against all the titles so that the transfer of a house could not be registered unless the buyer had entered into an agreement to pay.

David Fleming is the head of property litigation at William Heath & Co solicitors (williamheath.co.uk)

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