This article was first published in Estates Gazette on 24 August 2013
Boundaries: Basements that extend under a highway are sometimes excluded from the Land Registry title plan.
One of the advantages of registered land is that it provides certainty as to ownership. It can come as a surprise, then, to learn that the Land Registry title plan does not determine the exact boundary between adjoining properties. It is only an approximation of the extent of the land owned. Perhaps even more surprising is that features that are clearly part of the property, such as basement vaults that extend under the highway, are sometimes excluded from registration. This may be a source of concern for buyers and lenders. Do they need to be worried and, if they want to resolve the discrepancy, how should they go about doing so?
There is an old common law presumption dating back several centuries that the owners of land on either side of a road own the subsoil up to the middle line (medium filum) of the road. A similar presumption applies to non-tidal rivers, where it is presumed that the riverbed is owned by the landowners on either side (though this aspect is not in scope here).
If the roadway is an adopted highway, the surface of the road, along with such airspace as is needed for pedestrian and vehicular access, vests in the highway authority. The subsoil, however, remains in the ownership of the adjoining owners as does the airspace above that which is needed for pedestrian and vehicular access. The presumption may be rebutted but it would require convincing proof.
Omitting to include the road on a transfer plan is not enough. It is worth briefly mentioning “charter streets”. These are roads within the City of London that date back to before 1667, of which there are a surprisingly large number. These roads are owned by the City of London Corporation and the medium filum presumption does not apply.
The Land Registry does not show precise boundaries. Its approach is generally not to include within the registered title roads adjoining the property or foundations, vaults or eaves that extend beyond the boundary line. It is possible for adjoining owners to determine the precise boundary but this is time-consuming and expensive (a detailed survey will need to be carried out) and is usually only done to resolve a dispute.
Where is the problem?
Armed with this information, most landowners will be pretty relaxed. It would not occur to them that, technically, they own one-half of the road outside their property. Why should they care? If the road is adopted, the council will be obliged to repair and maintain it. Statutory provisions set out the basis on which utility companies have the right to lay apparatus under the road and there is generally no need for them to obtain the consent of adjoining landowners.
Private roads, however, are another matter. Here, maintenance is a real issue. The impracticality of each owner being responsible for the portion of roadway in front of its property means that, in practice, the owners will often form a residents’ association to enable the job to be done properly.
This issue also arises where a property has basement vaults that extend out underneath the pavement or road. This is common in pre-20th century houses without a front garden, where the vault was often used to store coal, and in some commercial premises, such as pubs. When these properties were sold, the vaults were frequently not shown on the conveyance plan. As a result, when the land was registered, the Land Registry also omitted the vaults. Now, years later, a buyer or lender might query why the vaults are missing and seek to add them to the registered title.
The first response might be: why are they needed? The medium filum presumption means that the vaults belong to the property whether or not they are shown on the Land Registry plan. However, the presumption is rebuttable and, no matter how unlikely it is that the vaults could be claimed by someone else, lenders, in particular, are reluctant in this market to take a view. If the other registered titles in the terrace include the vaults, it becomes even harder to argue that the same should not apply to your property.
When these situations have arisen advice has been sought from the Land Registry as to the best way forward, since its practice guides do not mention what to do. The answer is that an application may be made for the vaults to be added to the title. This must be accompanied by a statement of truth or statutory declaration confirming that the vaults form part of the property and for how long this has been the position. The longer the period of time that can be given, the better. A detailed plan should be attached, showing the vaults. The fee is £40.
The Land Registry will then serve notice on the highways department of the local authority, giving it 15 working days in which to object. If no objection is received, the vaults will be added to the title. If an objection is received, the matter would have to be investigated further and, ultimately, referred to the Property Chamber for adjudication.
Matthew Williams, Partner, Fladgate LLP (email@example.com)
Roy Perrott, Professional Support Lawyer, Fladgate LLP (firstname.lastname@example.org)