Back to Basics: Owning the road

Livy Twiss uses a hypothetical example of an unadopted road to outline the law of adverse possession, how to upgrade title and the application of the ad medium filum rule for roads. Party A is the registered proprietor of two parcels of land. These are split down the middle by an unadopted road which is exclusively used by Party A. The road is unregistered and has been used by Party A for more than 20 years. Party A wants to redevelop the entirety of the two parcels of land, including the road, for a future sale.  What options are available to Party A to “tidy up” the title? Adverse possession Adverse possession needs actual possession of the property with an intention to continue, without the owner’s consent. As the land is unregistered, the claimant (and any predecessors) need to have been in adverse possession for at least 12 years (there are circumstances where differing timescales apply, but these fall outside the scope of this article). An application for adverse possession of unregistered land must be on form FR1 and submitted with a statement of truth or statutory declaration. If the owner appears to be a company, a company search should be undertaken to see if the same is dissolved and details of any charges obtained. This search result should be submitted with the application, along with a land charges search certificate for the applicant, the owner and any previous owners. Objections to the application can be made and the application cannot be completed until any objection is disposed of or considered groundless. If the objection is not groundless, the parties will be advised to settle. If agreement is not reached, the matter will be referred to tribunal. In some circumstances, the applicant may have to pay the owner’s costs that result from the application. Transitional provisions that deal with land registered as at 13 October 2003 (where adverse possession had already taken place for the required amount of time) falls outside the scope of this article.  What if the road had been registered? In the case of registered freehold land, adverse possession needs actual possession of the property with an intention to continue, without the owner’s consent. The claimant (and any predecessors) need to have been in adverse possession for at least 10 years. Alternatively, they will have been evicted by the registered proprietor less than six months before the application to HM Land Registry – and would have been in possession for at least 10 years prior to the eviction (unless the eviction was via a judgment for possession). An application for adverse possession must be on form ADV1 and submitted with a statement of truth or statutory declaration.  The statement of truth or statutory declaration must: be made less than one month before the application; provide evidence of the adverse possession and any eviction; provide a plan (if part only); confirm no current possession proceedings or judgment for possession within the last two years; confirm that no restrictions on application apply (see schedule 6, paragraph 8 of the Land Registration Act 2002); and confirm that the land has not been subject to a trust during the period of adverse possession. HMLR will notify the registered proprietor (and other relevant parties) of the application. A party that has an interest in a registered estate that could be affected by the registration of an adverse possession application can apply to be registered as a person to be notified in the event of such an application. An entry would be made on the registered title to this effect. The registered proprietor can: object to the application; consent to the application; or serve a counter-notice requiring that three conditions (see below) be met.  The application will be successfully registered if evidence of any one of the following three conditions being met is contained in the application and referred to in form ADV1 (see schedule 6, paragraph 5 of the Land Registration Act 2002): It would be unconscionable, owing to equity by estoppel, for the registered proprietor to take the land back from the applicant. This would be evidenced by both: a) the registered proprietor allowing the applicant to believe they owned the land; and b) as a consequence, the applicant taking detrimental actions of which the registered proprietor was aware. The applicant is otherwise entitled to be registered as the proprietor (ie under a will or contract). The applicant’s adverse possession application was rejected owing to a successful counter-notice from the registered proprietor and the applicant has reapplied due to remaining in adverse possession for a further two years since the rejected application. If no counter-notice is received, the application will be registered. An adverse possession application will not be accepted in relation to land that is adopted highway. If an application includes an area of land that is adopted highway, the application will proceed in relation to the land that is not adopted highway only. Upgrading title  There are four types of registered title: Absolute – the best and most commonly granted title. Absolute title is not granted where there is a lack of evidence or a title defect. Good leasehold – granted for a leasehold title where the superior title has not been produced to HMLR. Possessory – granted where the owner has claimed title by adverse possession or where the owner has been unable to provide documents evidencing title. Qualified – granted when there is a specific defect in the title. Such defect will be noted in the register. Only the following parties can apply to upgrade a title: the registered proprietor; a party entitled to be registered proprietor (ie personal representatives or transferees); the proprietor of a registered charge; or a party with an interest derived from the registered title to be upgraded.  Possessory title can be upgraded to absolute freehold or good leasehold after 12 years of registration as possessory title. A possessory or qualified title can be upgraded at any time if additional evidence can be provided to HMLR to deal with the defect in title. Good leasehold title can be upgraded to absolute leasehold if all reversionary titles – up to and including the freeholder – are provided to HMLR and the same are registered with absolute titles. Applications to upgrade a title are made on form UT1 with details of what class of title is to be upgraded, capacity in which the application is being made, basis for the application and confirmation that no adverse claims have been made. Ad medium filum  There are two legal presumptions when it comes to the ownership of roads: The owner of land abutting a road is the owner of the road from the boundary of their land to the middle line of the road (ad medium filum). If land abutting a road is transferred, half the road is included in the transfer if it can be proved (or presumed) that the road is also owned to the middle line. The “highway presumption” is defined as: “Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is that the soil of the highway usque ad medium filum [up to the middle line] passes by the conveyance, even though reference is made to a plan annexed, the measurement and colouring of which would exclude it.” (Berridge v Ward (1861) 10 CBNS 400, approved in Pardoe v Pennington [1996] PLSCS 35). If a third party opposes the ad medium filum rule being applied, it is for the defendant to prove the highway presumption is rebutted. “Applying case law and normal principles of construing contracts, the highway presumption will be rebutted if it is sufficiently clear, from the terms of the conveyance and/or from the surrounding circumstances, that the vendor was intending and/or the vendor had good reason at the time, to retain the soil of the adjoining highway.” (Commission for New Towns and another v JJ Gallagher Ltd [2002] EWHC 2668 (Ch); [2002] PLSCS 278). An application to alter a boundary line (to include part of the road abutting your land) needs to be submitted by form AP1 with evidence to justify the alteration (the process is the same whether the road is unregistered or within the boundary of another title number). If a road is adopted then the ad medium filum rule is subject to the surface of the road being vested in the Highways Authority. Potential outcomes Party A could apply for adverse possession or apply to amend the boundary lines under the ad medium filum rule. If an application is made for adverse possession, Party A will be registered with “possessory” title. An application could be made to upgrade the title after 12 years.  If an application is made under the ad medium filum rule, the class of title will remain the same across both parcels of land and road and will have immediate effect.  Livy Twiss is an associate at Brabners Photo © Stephan Cassara/Unsplash