Section 38 Agreements and Highway Adoption When Selling

If your property is on a road that was built as part of a modern housing development, there is a reasonable chance that the road is either in the process of being adopted or has not yet been adopted as a public highway. This is not unusual — thousands of roads across England and Wales remain unadopted, sometimes for years after the homes on them have been sold and occupied.

For sellers, the adoption status of the road matters because it is one of the things a buyer's solicitor will check during the conveyancing process. If the road is unadopted, the solicitor will ask questions about maintenance responsibilities, whether a Section 38 agreement is in place, and what costs the buyer may inherit. Being prepared for these enquiries — and understanding the legal framework — helps you answer quickly and avoid delays that could put your sale at risk.

What is a Section 38 agreement?

Section 38 of the Highways Act 1980 allows a developer to enter into an agreement with the local highway authority for a new road to be adopted as a public highway. The agreement sets out the construction standards the road must meet, the timeline for completion, and the financial arrangements — including a bond or deposit — to ensure the works are completed even if the developer defaults.

Once the road has been built to the highway authority's specification and has passed a maintenance period (typically 12 months), the council formally adopts the road. From that point, the council takes over responsibility for maintenance, repair, resurfacing, street lighting, drainage, and winter gritting. The road becomes a public highway in the same way as any other council-maintained road.

The key elements of a Section 38 agreement are:

• Construction specification: the road must be built to the highway authority's standards, including road surface, kerbing, drainage, footways, street lighting, and road markings.
• Bond or deposit: the developer lodges a financial surety (typically 100-150% of the estimated road construction cost) to protect the council and residents if the developer fails to complete the works.
• Maintenance period: after construction, the developer remains responsible for defects for a set period, usually 12 months, before the council will formally adopt.
• Adoption certificate: once the council is satisfied, it issues a certificate confirming the road has been adopted as a public highway.

Why road adoption matters when selling

The adoption status of the road serving your property affects the sale because it determines who is responsible for maintaining the road — and therefore what ongoing costs the buyer will inherit.

An adopted road is maintained by the local council at public expense. The council fills potholes, resurfaces the road when needed, maintains street lighting, clears snow and ice, and manages drainage. Property owners on an adopted road have no direct maintenance liability for the road itself.

An unadopted road, by contrast, is the responsibility of the property owners who front it — known as "frontagers." Frontagers are liable for all maintenance costs, which can be significant. A full resurfacing of a residential road can cost tens of thousands of pounds, shared between all fronting properties. Routine repairs, drainage clearance, and lighting costs are ongoing obligations.

From a buyer's perspective, an unadopted road raises several concerns:

• What are the current maintenance costs, and how are they shared?
• Is there a management company or residents' arrangement in place?
• Is a Section 38 agreement in force, and when will adoption occur?
• What is the current condition of the road?
• Will their mortgage lender accept a property on an unadopted road?

How unadopted roads appear in conveyancing

The buyer's solicitor discovers the road adoption status through the local authority search. The CON29R standard enquiries include specific questions about whether the roads, footways, and footpaths fronting the property are maintained at public expense — meaning they have been adopted as public highways.

If the search reveals that the road is not adopted, the buyer's solicitor will raise additional enquiries. These typically cover:

These are standard pre-contract enquiries and should not alarm sellers. However, if you cannot provide clear answers, the buyer's solicitor may advise their client to proceed with caution, potentially leading to renegotiation or delay.

How to find out if your road is adopted

Before listing your property, it is worth confirming the adoption status of your road so you can prepare your responses to buyer enquiries. There are several ways to check:

1. Contact your local highway authority. Most councils have a highways department that can confirm whether a road is adopted. Some councils charge a small fee for a written highway search.
2. Check the council's online highway extent map. Many local authorities publish maps showing which roads are maintained at public expense. These are sometimes called "highway extent" or "adopted highway" maps and are often available on the council website free of charge.
3. Review your title deeds. The transfer deed from when you purchased the property may contain references to the Section 38 agreement, maintenance obligations, or the road's adoption status at the time of purchase.
4. Check for a management company. If your estate has a residents' management company or an estate management company, they will know the current position on road adoption and can provide documentation.
5. Ask the original developer. If the developer is still trading and the development is relatively recent, their customer care or legal team can confirm the Section 38 status and expected adoption timeline.

What sellers need to disclose

The Law Society's TA6 Property Information Form requires sellers to provide information about access and services. Several questions are relevant to road adoption:

• Section 2.1 (Boundaries): whether you are aware of the boundaries and any shared maintenance responsibilities.
• Section 4 (Rights and informal arrangements): whether any rights of access exist over the road and whether any informal maintenance arrangements are in place.
• Section 5 (Services): how the property is accessed and whether the access road is maintained at public expense.
• Section 9 (Alterations, planning, and building control): if any road works have been carried out that relate to the property.

You should answer these questions honestly and thoroughly. If you know the road is unadopted, say so. If a Section 38 agreement is in place, provide the details — including the parties involved, the date of the agreement, and the expected adoption timeline if you know it. If you contribute to a management company or service charge for road maintenance, provide the amount and details.

Failure to disclose known issues about the road can lead to a claim under the Misrepresentation Act 1967. It is far better to be upfront and allow the buyer to make an informed decision.

Section 38 vs Section 228: alternative routes to adoption

Not all roads are adopted through a Section 38 agreement. Section 228 of the Highways Act 1980 gives local highway authorities the power to adopt private streets using the "advance payments code" or, in some cases, at the council's discretion. Under Section 219 of the same Act, a council can require a developer to deposit a sum of money before building begins (the "advance payment") to cover the cost of bringing the road up to adoptable standard.

The key difference is:

• Section 38: a voluntary agreement between the developer and the highway authority. The developer agrees to build the road to a specified standard and the authority agrees to adopt it once completed.
• Section 228: enables the highway authority to carry out street works on a private street and recover the cost from the frontagers, or to adopt the street if the works have already been carried out to a satisfactory standard.
• Section 37: any person may dedicate a road as a highway by agreement with the highway authority. This is less common but can be used where a road already exists and the owner wishes it to be adopted.

For most modern housing developments, the Section 38 route is the standard mechanism. Sections 228 and 37 tend to arise in more unusual circumstances, such as older private roads where residents collectively petition for adoption.

The Section 38 bond: protecting property owners

One of the most important elements of a Section 38 agreement is the bond. When a developer enters into a Section 38 agreement, they are required to lodge a bond with the highway authority. This is typically set at between 100% and 150% of the estimated cost of completing the road to the required standard.

The bond serves as a safety net. If the developer fails to complete the road works — for example, because they go into administration — the highway authority can call on the bond to fund completion of the works and proceed with adoption. Without a bond, the cost of completing an unfinished road could fall to the frontagers, which would be financially burdensome and difficult to coordinate.

As a seller, if your road has a Section 38 agreement with a bond in place, this is reassuring information for the buyer. It means that even if the developer defaults, there is a financial mechanism to ensure the road is completed and adopted. Confirm the existence and amount of the bond with the highway authority or the developer and include this information in your responses to buyer enquiries.

Common problems with unadopted roads

Several issues can arise when selling a property on an unadopted road. Being aware of them allows you to prepare:

• No Section 38 agreement in place. Some older developments were built without a formal adoption agreement. In these cases, the road may remain permanently unadopted unless the residents collectively arrange for the road to be brought up to adoptable standard and petition the highway authority.
• Developer insolvency. If the developer has gone into administration before completing the road, the adoption process can stall. The bond (if one exists) should cover completion costs, but if the bond is insufficient, residents may face a shortfall.
• Delayed adoption. Even where a Section 38 agreement exists, the adoption process can take years. Disputes about construction quality, incomplete drainage works, or outstanding snagging items can delay the highway authority's acceptance. Some roads on developments built more than a decade ago remain unadopted.
• Unclear maintenance responsibilities. On some estates, it is unclear who is responsible for maintaining the road. The developer may have stopped maintaining it, no management company may exist, and individual residents may disagree about how costs should be shared.
• Mortgage lender concerns. While most lenders will lend on properties with unadopted roads, some may require additional information or indemnity insurance, adding time and cost to the transaction.

Practical steps for sellers

If your property is on an unadopted road or one that is in the process of being adopted, the following steps will help you prepare for the sale:

1. Confirm the adoption status. Contact your local highway authority or check their online highway extent map. Get written confirmation of whether the road is adopted, unadopted, or subject to a Section 38 agreement.
2. Obtain copies of the Section 38 agreement. If one exists, obtain a copy from the highway authority or the developer. Your solicitor will need this to respond to buyer enquiries.
3. Gather maintenance documentation. If you contribute to a management company or service charge for road maintenance, collect recent accounts, service charge demands, and details of the management arrangements.
4. Complete the TA6 thoroughly. Provide full details about the road status, maintenance costs, and any known issues. Attach relevant documents. See our guide on completing the property information form for more detail.
5. Brief your solicitor early. Make sure your conveyancer knows the road adoption position from the outset. They can then prepare responses to the standard enquiries before the buyer's solicitor raises them, saving time in the process.
6. Consider indemnity insurance. If the road is unadopted with no Section 38 agreement in place, your solicitor may recommend obtaining an indemnity insurance policy that covers the risk of future road maintenance costs. This can reassure buyers and lenders and is relatively inexpensive (typically a one-off premium of around £50-£200).

New-build estates and ongoing adoption

If you are selling a property on a relatively new-build estate where the development is still being completed, the road adoption position may be more complex. The developer may still be building additional phases, and the Section 38 agreement may cover the entire estate rather than individual roads. In this situation:

• The developer is usually responsible for all road maintenance until adoption is complete.
• A management company may collect service charges for estate maintenance, including roads, green spaces, and drainage.
• The buyer's solicitor will want to see the Section 38 agreement, the management company accounts, and the service charge budget.
• The NHBC (National House-Building Council) or equivalent warranty provider may provide additional information about the development's status.

Being proactive about gathering this information before listing reduces the risk of delays and keeps the sale moving. Sellers on new-build estates should liaise with both the developer and the management company to compile a comprehensive information pack for the buyer's solicitor.

Getting ahead with Pine

Highway adoption status is one of the standard areas of enquiry in every residential conveyancing transaction. If your road is unadopted, the buyer's solicitor will ask about it — the only question is whether you are ready with the answers.

Pine helps sellers prepare their legal paperwork — including the TA6 Property Information Form and supporting documentation — before listing. By confirming your road's adoption status, gathering the relevant Section 38 documentation, and completing your disclosure forms early, you remove a potential source of delay from the conveyancing process.

Combined with upfront work on rights of way and easements, early preparation on highway adoption means fewer surprises after your buyer's solicitor orders searches — and a smoother path to exchange.

Sources

• Highways Act 1980, Section 38 (Power of highway authorities to adopt by agreement) — legislation.gov.uk
• Highways Act 1980, Section 228 (Adoption of streets after advance payment of street works costs) — legislation.gov.uk
• Highways Act 1980, Section 219 (Advance payments code) — legislation.gov.uk
• Highways Act 1980, Section 37 (Power of highway authorities to adopt by agreement — dedication) — legislation.gov.uk
• Department for Transport — Guidance on the Management and Maintenance of Private Streets, 2014 — gov.uk
• Law Society of England and Wales — Property Information Form (TA6), 4th edition, 2020
• Law Society of England and Wales — CON29R Standard Enquiries of Local Authority (2016 revision) — lawsociety.org.uk
• HM Land Registry — Practice Guide 1: First Registrations, Section 9 (Access and rights of way) — gov.uk
• National House-Building Council (NHBC) — Standards Chapter 10.1: Roads, Footpaths, and Paved Areas — nhbc.co.uk
• Misrepresentation Act 1967 — legislation.gov.uk
• Local Government Association — Unadopted Roads: A Guide for Councils and Residents — local.gov.uk
• RICS — Residential Property Standards: Highways and Access (RICS guidance note) — rics.org

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