Ownership of road outside home

GM228

Following on from something in another thread, I seem to recall there being legal issues with a developer selling a property with the land registry boundry extending half way accross the road (i.e the footway and half the roadway) on a housing estate which hasn't been taken in charge yet - i.e roads which could potentially become public roads.

Is there any such issues or am I mistaken?

And if such is OK does it be affected in any way by the taking in charge process?

Just to note this isn't a request for advice but in relation to this post.

nuac

Mod
Ok, as this is hypothetical let's if this issue can be discussed here without breaching forum rules

coylemj

I would see it as being a seriously cumbersome process to let the LA take the road into public ownership if each resident owned half the roadwidth in front of his/her house. Wouldn't each house have to legally sell their piece of land to the council for a token amount and if just one person refused, the whole plan would collapse. And who would pay the legal bills for the transfer of ownership?

godtabh

It used to be the case that you had ownership to the center line of the road but the LA had a significant right of way over it. Basically meant you owned it in name only. That was more of a rural situation.

Now in housing developments the roads are either in control of a management company or handed to the LA as part of the taking in charge process.

Peregrinus

coylemj wrote: »

I would see it as being a seriously cumbersome process to let the LA take the road into public ownership if each resident owned half the roadwidth in front of his/her house. Wouldn't each house have to legally sell their piece of land to the council for a token amount and if just one person refused, the whole plan would collapse. And who would pay the legal bills for the transfer of ownership?

The local authority doesn't take roads into ownership; it takes them in charge - meaning that it will maintain them, regulate them, etc. They continue to be owned by the same owners - the property owners on each side. But the ownership of a piece of land that has been taken in charge is of no value, since you can't do anything with it that is inconsistent with the public right of way over it.

godtabh wrote: »

It used to be the case that you had ownership to the center line of the road but the LA had a significant right of way over it. Basically meant you owned it in name only. That was more of a rural situation.

Now in housing developments the roads are either in control of a management company or handed to the LA as part of the taking in charge process.

I think the question the OP is asking is, is there a legal/practical risk if you buy in an estate where you expect the roads to be taken in charge by the local authority but, for whatever reason, that never happens? Do you, e.g., have an obligation to maintain the bit of road outside your house that you own? If someone is injured due to the poor condition of the bit of road that you own might you have a liability? Etc, etc.

I don't know the answer, but it's a good question.

Cookie_Monster

so if you don't own it does that absolve any requirement to maintain the verge / berm (if present) between the footpath and road?

Peregrinus

Cookie_Monster wrote: »

so if you don't own it does that absolve any requirement to maintain the verge / berm (if present) between the footpath and road?

You do own it, typically, but I'm not sure if you have any particular obligation to maintain it. When the Council takes the "road" in charge, they're not just taking on the maintenance of the carriageway - the bit where cars drive. They're taking on the whole area which is subject to public rights of way, which includes any footpaths on either side of the carriageway, and any verge which separates the footpaths from the carriageway.

GM228

Most authorities also take ownership of the public roads when taking in charge and require the developer/owner to submit vesting maps and documentation transferring ownership of the areas being taken in charge to the authority.

This is usually a condition in the planning permission.

godtabh

Peregrinus wrote: »

I think the question the OP is asking is, is there a legal/practical risk if you buy in an estate where you expect the roads to be taken in charge by the local authority but, for whatever reason, that never happens? Do you, e.g., have an obligation to maintain the bit of road outside your house that you own? If someone is injured due to the poor condition of the bit of road that you own might you have a liability? Etc, etc.

I don't know the answer, but it's a good question.

The process is very length (years even decades can pass!). Short term residents or a management company or developer (unlikely) will have to maintain it. Long term the LA will maintain it as part of their road network.

jenny smith

Peregrinus wrote: »

You do own it, typically, but I'm not sure if you have any particular obligation to maintain it. When the Council takes the "road" in charge, they're not just taking on the maintenance of the carriageway - the bit where cars drive. They're taking on the whole area which is subject to public rights of way, which includes any footpaths on either side of the carriageway, and any verge which separates the footpaths from the carriageway.

Does that apply to houses on national primary roads who have grass verge out side their house and put big stone on it to stop people parking. I thought i had read threads that says such people do not own that space and should not put potentially dangerous items there

jenny smith

Peregrinus wrote: »

The local authority doesn't take roads into ownership; it takes them in charge - meaning that it will maintain them, regulate them, etc. They continue to be owned by the same owners - the property owners on each side. But the ownership of a piece of land that has been taken in charge is of no value, since you can't do anything with it that is inconsistent with the public right of way over it.

I think the question the OP is asking is, is there a legal/practical risk if you buy in an estate where you expect the roads to be taken in charge by the local authority but, for whatever reason, that never happens? Do you, e.g., have an obligation to maintain the bit of road outside your house that you own? If someone is injured due to the poor condition of the bit of road that you own might you have a liability? Etc, etc.

I don't know the answer, but it's a good question.

In any case i think there is an obligation under litter law to keep the space free of litter

NUTLEY BOY

I presume that we are talking about the Medium Filum concept - never quite got to grips with it !

We had a bit of debate about this with neighbours during the very heavy snows of December 2010 / January 2011. The point at issue was whether or not householders had an obligation to clear the "public" footpath in front of their houses of snow and ice ? This estate is about 70 years old so no management company or similar complications arose i.e. each house did it's own thing.

I took the view that there was no responsibility on a householder to clear snow and ice from the public footpath. I formed this view on the basis that I knew of no statutory or common law obligation to do so.

My concern was that if there was no duty to clear snow and we took on the responsibility we could be liable in negligence alone if we did not do it adequately and continuously until the weather had resolved it. In principle, I was thinking of the situation where if you have no duty of care you can acquire one by taking on the doing of something you don't have to.

As a further complication I think that section 60 of the Civil Liability Act 1961 was never enacted. S. 60 provides that a local authority could be liable for failure to maintain a road (non-feasance). Link http://www.irishstatutebook.ie/eli/1961/act/41/section/60/enacted/en/html#sec60

I don't mean to hijack OP's thread but this issue comes to my mind every time the medium filum concept arises.

So, if we are inundated this winter will you clear snow on the public path outside your house ? I will not.

Peregrinus

So far as I know, there's no obligation in Ireland to clear the public footpath outside your house of snow and ice. It doesn't make any difference whether you own the land up to the mid-line of the road, or whether your property stops at your own fence. You have an obligation not to block the public right of way, but no obligation to keep it clear of natural hazards. It may be an exercise in civic responsibility or good neighbourliness to do so, but it's not a legal obligation. (It's different for the footpath on your own property, e.g. leading from the garden gate to the front door. You do have an obligation to keep that safe.)

In places where there is a legal obligation to clear the public footpath (in many cities in the US, for example) it's usually unrelated to the ownership of the underlying land, or even of the adjacent land. It's based on occupation, not ownership, of the neighbouring property, and it usually arises under city bye-laws. You have to clear the footpath outside your house of ice and snow and, if you're too ill or frail to do that, you have to pay someone else to do it. If you don't, you risk not only lawsuits from people who are injured in falls, but a fine from the city council if they observe that the footpath isn't clear.

Carawaystick

I'd imagine in a most housing estate situations, the developer would sell the land the houses are on, and retain the common areas and that is what gets taken in charge, otherwise there'd be some liklihood of the council having to deal with every houseowner in the estate .

Peregrinus

Carawaystick wrote: »

I'd imagine in a most housing estate situations, the developer would sell the land the houses are on, and retain the common areas and that is what gets taken in charge, otherwise there'd be some liklihood of the council having to deal with every houseowner in the estate .

Taking roads in charge doesn't require dealing with landowners. Once a local authority is satisfied that a public right of way exists over land they simply make an order declaring the land to be a public road and, presto!, responsiblity for maintenance of the road now lies with the local authority.

Before the local authority makes the order there's a process to be gone through - publish a newspaper notice indicating what they are proposing, invite representations from interested parties, consider the representations, that kind of thing. There's no specific requirement to communicate with landowners, and representations from landowners don't enjoy any special status.

In practice, the problem is not landowners resisting their land being taken in charge; it's landowners wanting their land to be taken in charge, and the Council being reluctant, most usually because of cost implications for the Council. At the very least, a Council won't take roads in charge until they're satisfied that all the construction and engineering works have been completed in accordance with relevant planning permission and with building regulations. This is something which, in a new estate, the developer has to satisfy the Council about, whether or not the developer retains ownership of the roads.

To go back to the OP, which asks whether there is a risk associated with buying property on a road which has not yet been taken in charge. Yes, there is; the risk is that the road won't be taken in charge, and the value of your house will suffer because access to it is provided by a road which nobody maintains. (Plus, trivial fact of the day: Dublin Bus won't run a bus route down a road that hasn't been taken in charge. So adequate servicing of your property with public transport links may be imperilled.) This problem is most likely to arise where the developer goes bust before it has satisfied the Council that the roads have been properly finished.