A Public Right of Way

Example: Mr Smith buys his property only afterwards to discover a public footpath across his back garden. If he had known of the footpath before he bought he would have offered less or not bought at all.

What can he do?

He has three options:

• He could sue his solicitor. A reasonable enquiry of the vendor ought to have included questions directed to discovering whether there was a footpath. If the failure to discover was due to the failure to make the proper enquiries then the solicitor will be liable. In cases of this kind the solicitor’s insurers usually concede liability.
• He could sue the vendor. Where the proper enquiries were sent out but the vendor has lied or misled the buyer, then the action will lie against the vendor himself.
• He could sue the highway authority. This will arise where proper enquiries included a request to the local authority – who will usually be the highway authority and responsible for keeping a map of all public footpaths – but the LA fail to confirm the existence of the public footpath or wrongly describe its position. Here the action will lie against the local authority.

What is his’s loss? If A would have gone ahead and paid just as much for the house then he has suffered no loss. But usually, it is not difficult to establish that had A known of the ‘blight’ – the footpath – he would have made a lower offer.

One may need the evidence of a surveyor when it comes to valuing the property with and without the footpath, but the claim is a good, sustainable claim.