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Missing pieces: the jigsaw of development sites

  • United Kingdom
  • Real estate
  • Real estate development and regeneration
  • Real estate planning

19-04-2021

When undertaking due diligence for a residential development site, it is imperative that all the pieces of the title jigsaw can be found and put together to assemble a seamless site with sufficient access. But it is so often the case that a thin sliver of land is missing along a boundary, or a small area of unregistered land in the middle of a site does not quite belong to anyone, or that the proposed access way falls slightly short of the highway. There are various approaches to address this sort of issue, but it is important to consider at the outset where the client wants to end up before starting down any particular route. Is it ownership that is needed to allow the development to progress? Or is it access? Claiming one now might prevent a claim of the other later; a claim for title based on adverse possession and a claim for a prescriptive right are mutually exclusive.

So first, be very sure that there is a problem. The useful but not definitive MapSearch service available through the Land Registry portal might suggest problems or provide comfort, but is for information only. Consider commissioning an illustrative plan from the Land Registry to facilitate matching up title plans. This is now available for as few as two titles and is a quick way to reach a definitive answer. It may be a long shot, but the illustrative plan might just show that the registered titles do meet in the middle or do make up all the jigsaw pieces of a fragmented title.

Might the general boundary rule be sufficient solution to the issue? There is no minimum or maximum amount of land that is included or excluded from a registered title by way of the general boundary rule. The red line on the title plan is only ever indicative of the legal boundary, unless a previous registered proprietor or neighbour has gone to the bother of a Land Registry boundary determination or has entered into an agreement as to boundaries between themselves. A purposive approach to a general boundary might provide sufficient comfort as to ownership for the use of landscaping or the like, but is unlikely to be enough to persuade a residential plot purchaser, or its mortgagee, that they will acquire good title to the whole plot.

Perhaps one of the boundary presumptions might assist. There are various presumptions that might apply, but they are only ever presumptions and might be disapplied by ownership or evidence to the contrary. Any one of the "hedge and ditch" presumption, ad medium filum for ownership to the half-way point of watercourses and roads or the various presumptions relating to highways might be sufficient to solve the issue.

Is there perhaps scope to apply to the Land Registry for a correction to be made to the title plan? The red edging on title plans not infrequently changed, ever so slightly but significantly, when the Land Registry switched to digital mapping. Perhaps a previously curved boundary that reached all the way to the adopted highway morphed into a straight red line falling short between one edition of the title plan and the next. Historical title plans are available from the Land Registry and both these and the title deeds that led to first registration might provide grounds for correction to a title plan. A situation such as this where the evidence is clear and the Land Registry agree to correct the title plan is often the best-case scenario. The general boundary rule and boundary presumptions are unlikely to lead to a change in the red line on the title plan and having all the development land actually falling within the red line is the aim.

As a last choice it might be that an adverse possession claim is appropriate. Alternatively indemnity insurance cover may need to be obtained where there is no paper title and insufficient time has passed on which to base an application for registration by way of adverse possession. An application for registration of title by way of adverse possession is challenging if the land in question is already registered. The Land Registry will serve notice on the registered proprietor alerting them to the application and giving them the opportunity to contest the application. The registered proprietor will have two years to regularise the position (to transfer the land, at a price, or grant a lease perhaps) or more likely take back possession. If those two years pass without the registered proprietor taking action, then the adverse possessor can make a second application for registration. For a prospective development, this is usually too long a period of uncertainty.

Registration of the acquisition of title by way of adverse possession of unregistered land may be more likely to succeed. But it is not enough to want the land or believe no one else asserts ownership; there has to be at least 12 years of demonstrable adverse possession. This might mean amassing evidence of activities of succeeding landowners, which is not easy. Asserting title based on adverse possession brings complications for both registered and unregistered land. For this reason, it is the last resort.

So, there are many potential solutions to the problem of missing title pieces, but it does pay to have all those involved in the development engaged in the solution. Possessory title might be sufficient for an edge of landscaping, but not for the site's retaining wall. A sliver of a gap between two registered titles might not matter much if it lies along the edge of a landscaping area, but not if it runs through the basement of an apartment block. The design of the development scheme needs to take into account the title limitations when pieces of the jigsaw just cannot be found, no matter how much we look down the back of the sofa.