If you have ever acquired development land, you will very possibly have encountered issues with site boundaries. This article explores one specific title defect commonly encountered where a title boundary does not quite follow the boundary of the adopted highway resulting in a small gap of “no man’s land” (typically unregistered) with unknown ownership.
Intervening third party land can greatly affect delivery of access and services to a site and so a developer will want to resolve the issue if the location of the “no man’s land” is in an area designated for access and services or in some other way needed to deliver the development.
One option is to take out indemnity insurance (if available) and leave it at that. However, this can cause further problems where, for example, an adopting authority refuses to adopt without registration of the “no man’s land” at HM Land Registry as a condition for adoption of roads and/or services. It is therefore prudent to consider whether registration is possible at the outset.
There are different ways to approach registration and your legal advisors will explain what, if any, options are available in the specific circumstances. This article considers some of those options and, in particular, the ad medium filum presumption that may help resolve this particular title defect and assist in getting the “no man’s land” registered where other options are not available.
Regardless of how you eventually deal with this issue, the first port of call in the process is usually a review of the title deeds to look for evidence to establish ownership of the legal title to the relevant area. Establishing ownership of the legal title may resolve the issue, particularly where you are buying land and it is discovered that the seller holds the legal title. However, there is always the risk that you establish third party ownership and find yourself dealing with a ransom strip which could be a real problem.
If ownership of the legal title cannot be established by a review of the title deeds, you could consider an application to HM Land Registry to amend the title boundary based upon the “general boundaries” principle (in summary, the principle that HM Land Registry are not 100% precise with their red line boundaries). A similar application could be made to the highway authority to request a change to the boundary of the highway (if adopted). From experience, such applications are rarely successful.
Other options are an application for first registration based upon missing or destroyed title deeds or an application for adverse possession. However, these types of application come with their own specific set of requirements and may not be appropriate for the following reasons:
Another option to consider is an application for first registration based upon the ad medium filum presumption that a piece of land adjoining a highway also includes the subsoil up to the middle point of the highway. The words ad medium filum are Latin and literally mean “up to the middle line”.
The ad medium filum presumption is generally considered strong and applies notwithstanding the fact that conveyances and/or transfers of the site refer to a plan that seemingly excludes the highway. However, it is important to remember that ad medium filum is only a presumption and can be rebutted by a superior claim such as person with paper title or if it is sufficiently clear that a previous vendor of the land intended to retain the soil of the adjoining highway. Your legal advisor’s review of the title deeds should help to establish if this is evident.
An ad medium filum application must be supported by a statutory declaration or statement of truth that your legal advisors will be able to prepare and which will need to set out the specific circumstances. When considering the application HM Land Registry may serve notice on nearby landowners and may wish to physically inspect the area of “no man’s land”. Any prospective indemnity insurer (see below) should be notified and their approval should be obtained prior to making the application because notifying a third party (even including the Land Registry) can invalidate existing or prospective indemnity insurance policies.
If the ad medium filum application is successful, HM Land Registry will almost certainly grant only a possessory title (as opposed to absolute title, the superior class of title) to the land and you should consider an indemnity insurance policy to mitigate future risk if one is not already in place. Your legal advisors will be able to obtain indemnity insurance quotations for you to consider.
Finally, you may also be interested to know that similar rebuttable presumptions apply to non-tidal rivers, streams, lakes and the sea-shore which can be important for other issues such as, amongst other things, drainage and extraction rights.
In all cases where there is a discrepancy with the title boundary professional advice should be sought at the earliest possible opportunity so that the full range of options can be considered in order to deliver the most cost effective, practical solution.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
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