Freehold Maintenance Obligations

When purchasing a freehold property, one would be forgiven for thinking that there will be no additional freehold maintenance obligations. Unless experienced it personal, the majority of people assumed that maintenance obligations and payments are linked to common parts of leasehold properties through service charge or equivalent. In actual fact, it is not uncommon to see these shared maintenance obligations especially in newer estates. For this reason, there is great potential when purchasing a freehold property to fail to take into account possible hidden freehold maintenance obligations.

Examples of freehold maintenance obligations

Some examples include:

• Private road maintenance
• Private septic tank arrangements
• Share accessway and driveways
• Street lighting in residential areas
• Maintenance of landscaped gardens
• Repair of private drainage systems
• Estate rent charges

Who owns a private road?

There was a time when house-buyers sought homes on private roads as they tended to be thought of as more exclusive. However, over recent years, there has been a surge for new housing estates to be built upon private roads that are not being taken over by their respective local authorities. This has led to many homeowners living on “unadopted” roads.

Living on an unadopted road can be a cause for concern, particularly surrounding issues of maintenance. For example, how will communal areas, roads, lighting, signage or play areas be maintained? What is the situation regarding gritting or drain and gutter clearance, usually undertaken by council operatives? Is insurance necessary? And if there are arguments between residents over costs, how will it be sorted out?

According to the Highways Act 1980, a private road is any highway that is not maintained at the public expense. This means the local authority is under no obligation to pay for the maintenance of any unadopted or private road. The owners whose homes front onto the private road (referred to as “frontagers”) are all responsible for paying for any maintenance or repairs required.

Although there is no obligation to insure a private road, it is probably a good idea to do so. Particularly in the event of an accident and a claim being made, you will be covered and the insurance will pay out.

If you are considering buying a house on a private road, try to find out:
• Whether there is an active and well-run residents’ association
• Whether the road is managed by an outside management company
• What your responsibilities would be as a resident, including any costs you are likely to have to make

Septic tank arrangements

If you are purchasing a home that is not connected to mains drainage, then the property may have its own septic tank, or if it is one of several properties, share a septic tank with other households.

Shared septic tanks are generally situated within the boundary of one property, or sometimes on third party land. Each resident is equally responsible for the shared drainage system, unless this is stated to the contrary in the property’s deeds. This means that each homeowner must share the burden of regular drainage maintenance, emptying the septic tank, and any other problems that may arise.

With equal responsibility comes equal sharing of the bills. Unless stated otherwise, each household must pay an equal share of the bill. This can be addressed by drawing up a resident’s agreement detailing how much each pays annually. Doing this can avoid uncomfortable conversations and prevent financial disputes.

If you are considering buying a house with a septic tank, it is essential you understand what drainage system is in place. You must also investigate what agreement, if any, the current homeowner has in place. By doing this, you can account for the cost you will have to pay and ensure you do not become embroiled in any neighbourhood disputes.

Shared accessways and driveways

It is important to say that most people who have a shared accessway or driveway never run into any difficulties. There are two types of shared driveways in the UK. The first is an accessway standing partly on one owner’s land and partly on an adjacent owner’s land over which both enjoy a right of way. The second is where one resident owns the land outside another resident’s house. In the second situation, it is common for an agreement to be drawn up between both parties, which allows everyone unfettered access.

Neither resident has the right to park, and therefore obstruct, a shared driveway. There is little legal protection on this issue; your car will either be considered to be parked illegally or blocking a right of way.

Regarding maintenance, it is expected that both homeowners will contribute towards maintaining the condition of the shared driveway or accessway. It is worth stating that neither resident may store anything in the area, such as bins, for example. Storing bins here would equate to an obstruction of the right of way.

If there is any uncertainty surrounding the ownership of a shared accessway or driveway, then it is best to check the title deeds of the property. Common law states that the area must be used fairly by both parties, therefore if one resident goes beyond that remit or obstructs the use of the driveway or garage, then it is possible to take the issue to court and seek an injunction.

Repair of private drainage systems

The differences between a drain and a private sewerage system is that a private sewer unites drains from two or more properties. A private sewer may flow under the land of several properties, a pavement or highway, and since October 2011, are the responsibility of the water company covering your area.

That said, the homeowner remains liable for blockages or issues within their own property’s drain. If the private drain crosses someone else’s land, this is likely to be explicitly mentioned within the property’s deeds and if the blockage or problem cannot be rectified without digging up your neighbour’s land, you will be responsible for paying for the repair and any remediation works to the land.

Street lighting in residential areas

There is no duty on any local authority to provide street lighting on private or unadopted roads. Although, on new housing estates, developers may charge each resident for the provision and upkeep in an estate rentcharge.

Maintenance of landscaped gardens

These charges are generally included on an estate rent charge or service charge if you are a leaseholder.

Freehold maintenance obligations and estate rentcharges

When private developers build homes, the council usually adopts the estate and the local authority bears the responsibility for maintaining services, such as those listed above. This is not the case with estate rentcharges as the local authority will not adopt the estate meaning they will not pay for the maintenance or repair of any communal areas, including roads and street lighting.

The Land Registry estimates there are approximately 100,000 registered properties that have an estate rentcharge attached to them, and believe this figure is likely to increase in the coming years.

Conveyancers should make buyers aware of:
• How rentcharges operate and the vulnerability of the consequences if these are not paid. The remedies available to estate rentcharge owners include: granting a lease of the property to a trustee if the rentcharge goes unpaid for 40 days. Many mortgage lenders will not lend against properties subject to a rentcharge unless these rights have been excluded or suitably modified within the title because their interests will not be protected.

• Potential delays/issues on resale if the potential buyer’s mortgage provider has stringent requirements and insists an existing rentcharge must be amended or modified.
• The potential detrimental impact on the security for a lender means they are likely to factor this in when assessing risk during the underwriting process.
• Unlike obligations arising under a leaseholders’ service charge or ground rent, there is currently no legal mechanism to challenge the level of charges imposed by an estate rentcharge.

The government’s plan for reform of the current law regarding estate rentcharges, and for rentcharges to be removed, is an ongoing issue.

How do I find out what freehold maintenance obligations I will be responsible for?

As part of the title checking and enquiries, your conveyancing solicitor will establish what freehold maintenance obligations one will have during the period of ownership. They will also ask the sellers and their solicitors to confirm that all payments are up to date and they may negotiate an allowance for any major planned works to shared services. Details of your obligations will be included in your Report on Title, like in a leasehold property so that you can make an informed decision before committing to a property. To read more about the title reports, please visit our article here