Crossing the threshold: how to deal with unregistered land between your property and the public highway

17 / 12 / 2021

We have probably all spent more time behind our own front doors in the last 18 months than we would have liked. Stepping out and onto the pavement – or indeed waltzing in through the door of the workplace, coffee cup in hand – is something we may never take for granted in quite the same way again.

But have you ever really stopped to look at the front door step of your building, or the entrance to the office car park? Have you ever wondered exactly when you cross the threshold – at what point you leave the public highway behind and move onto private land? Most people (apart from property lawyers) generally have much more interesting things to think about – but like a lot of dull questions, this one is occasionally crucial.

Mind the gap

One of the first and most fundamental things to check when buying or renting a property is that you can get from the red line boundary of the land you are acquiring to the adopted public highway – meaning both that you can physically get there, and that you have all the legal rights you need to do so.

This means that either:

  • the red line boundary of your property must directly abut the public highway; or
  • if there is privately owned land in between your front door and the highway, you will be granted rights of access over it by the owner of that land (for example, rights of access over private estate roads on an industrial estate). 

If there is non-highway land between your property and the public highway, and you are not being granted rights over it as part of the transaction, then you have a potential problem. There is a risk that the owner of that intervening land may come forward at some point in the future and seek either to prevent you from accessing your property, or to extract money from you for the privilege. How seriously you take that risk will depend on a number of factors, including how much is known about the ownership of the intervening land, your own future plans for the property (including whether or not you will need bank finance) and your own attitude to risk.

Warning signs

Spotting gaps between the property and the public highway starts with a physical inspection. It is always a good idea to compare the red line plan showing the property you are acquiring against the physical extent of the site or building on the ground to check for any discrepancies – but this is particularly important when it comes to the entrances (or potential future entrances) to the property. Anything which looks as though it might separate the property from the metalled road is worth looking into. Is your greenfield development site separated from the road by a ditch, or a grass verge, or a belt of trees? What is the status of that strip of concrete outside the shop doorway? Likewise, any areas which appear to be maintained separately (or not at all) should be investigated. What is that rather potholed area at the entrance to an otherwise well-maintained industrial estate? And what was the gravelly area by the field gate where you parked for your site visit?

Alongside this, your solicitor will carry out searches to determine the exact extent of your seller’s or landlord’s ownership and the extent of the public highway. If there is a gap between the two, further searches can be carried out to ascertain whether that intervening land belongs to a third party or – as is often the case – it is unregistered, meaning that ownership is unknown, or at best uncertain.

Finding solutions

If you find a gap between your property and the public highway, the first step is to find out as much as possible from the seller about the background to the situation. What do the title deeds say? Has any third party ever claimed to own it?  Who maintains it? How long has the seller been using it? Has anyone ever tried to stop them, or given them permission to use it?

You then have a choice to make: either you try to prove title to the land, or you let sleeping dogs lie and look into indemnity insurance instead.

Proving title

One potential route to proving ownership is the legal principle known as ad medium filum, which states that any property adjoining a highway is deemed to include all the land up to the midpoint of that highway. However, it is worth remembering that this is not a hard and fast rule, and can be rebutted by evidence to the contrary (for example earlier conveyances of the land).

Alternatively, a landowner could look to put together a case that it has acquired title to the land by adverse possession (i.e. it has treated the land as its own for so long that it ought to be formally registered as the owner), or that it has acquired rights of way over it by long use.

Both approaches involve pulling together a body of evidence to show how the land has been used during the relevant time period (which varies slightly depending on the circumstances, but will generally be 12 years for an adverse possession claim over unregistered land, and 20 years for a right of way).

Both approaches also have their drawbacks when it comes to land adjoining the public highway. Where the land is not fenced off, as is often the case in this scenario, it can be difficult to persuade the Land Registry that the landowner has exercised sufficient control over it to justify being registered as the proprietor, and even a successful application will most likely result in possessory title, which may not satisfy a lender. It is sometimes easier to demonstrate that rights of way have been acquired, as all that needs to be shown is continuous use of the access (albeit for a longer time period), but even a successful application may run into future arguments about intensification of use, particularly if the intention is to develop the property. Rights acquired by a farmer for access to and from his farmland may not be sufficient to support development on that farmland of 100 new homes, for example.

Indemnity Insurance

The major downside in trying to prove title is that it may turn a potential problem into a very real one by alerting potential owners of the intervening land to their rights. If you are buying or renting an existing building, with no plans to re-develop, the best course of action will often be to leave well alone and obtain indemnity insurance instead (preferably at the seller’s/landlord’s expense).

As with all title issues, the decision as to whether to investigate or insure needs to be made early on, as insurers will often only offer terms on the basis that no approaches have been made to any third parties, including the Land Registry.

For developers, insurance may be tricky to obtain before planning permission has been obtained for the site, on the basis that this process is likely to flush out any third parties claiming to have an interest in the land. Two-stage policies are sometimes available (albeit it with a higher price tag) but developers often find themselves having to take this sort of title risk initially, and find other ways to address this through the sale contract terms and/or the price. 

Key points

  • One of the most important points to check on a site visit is the boundaries of the land.

It might be tempting to cut a deal with the relevant landowner, but this will make insurance impossible if the deal isn’t done.