Mind the Gap: Top 10 Tips where there is Unregistered Land between Adopted Highway and Development Land
- Undertake thorough investigations to establish ownership, use and rights of way.
- Inspect and obtain overlay plans – different planning drawings often place boundaries in different locations. Inspect the actual boundaries on the ground.
- Consider title indemnity insurance. It is important not to contact any potential owner of the strip as this could make it difficult to obtain insurance or invalidate insurance obtained.
- Pay a ransom - if the owner is known, it may be possible to negotiate the grant of appropriate rights in return for a payment, however, the owner of the ransom land may expect to receive up to one third of the value of the ‘unlocked’ development, but only if the other steps do not solve the problem, and do not approach the owner before applying for insurance.
- Adverse Possession – the owner of the adjacent site may be able to claim adverse possession if they have been in exclusive occupation of the strip for at least 12 years. This will depend on available evidence and whether someone is available to provide a statutory declaration for the full period
- Prescriptive rights - private rights of way can be acquired by prescription through showing 20 years continued use as a right. Again this would depend on the facts and a statutory declaration covering this period would be required.
- Rectification of Land Registry plans - the Registry has the power, on application, to alter the register to correct a mistake, including correcting a title plan. Sometimes it is possible to persuade an assistant registrar to exercise their discretion to grant an application however, more often, the Registry will fall back on the general boundaries rule that there is no limit to the amount of land that can fall within the scope of that rule
- The ad medium filum rule – this comprises two presumptions: that the owner of land fronting a road is the owner of the soil up to the halfway point of the road, with the surface of the public highway, if publicly maintainable, vesting in the highway authority; and that the soil up to the halfway point passes by any transfer of the land fronting the road. These are strong presumptions of law and are rebuttable by evidence to the contrary.
- Rely on the legal presumption, again rebuttable, that a highway extends to the whole width of the space between fences/hedges on either side of it and is not limited to the metalled part of the roadway. This is more difficult in practice as it is not a basis for rectification of title, so it cannot be the subject of an application to the Registry, nor the basis for a court to order it to rectify the title.
- Apply for adoption as public highway – where there is no known owner section 228 of the Highways Act 1980 allows the highway authority to adopt street works on a private street. The use of this power by the local highway authority is discretionary but may be agreed on relatively small areas.
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