Where you are developing land it is important to first check carefully the extent of land within your ownership.
We have recently acted on the sale of a development plot that had the benefit of planning permission for the construction of three residential dwellings.
The drawings submitted with the planning consent included two pieces of land to which the seller did not have paper legal title. One area was registered at the Land Registry and the other was unregistered land.
The registered land provided access to a substantial part of site and the unregistered area of land was required for the construction of one of the dwellings under the planning consent. Unless the seller could give title to these areas of land, it would have required a re-design of the development and a likely diminution in value of the site if fewer houses could be built.
Having visited the site and learned of the seller’s historic use of the two areas of land, we saw the potential to remedy the problem.
Title to land can be obtained over a period of time by making an application to Land Registry for adverse possession. The basic requirements to establish a claim for adverse possession are that a person must occupy and physically control land without the consent of the true owner.
In applying for adverse possession, the Land Registry has different requirements depending on whether the land is registered or unregistered.
For unregistered land, the applicant must be able to demonstrate possession of the land for at least 12 years prior to the date of the application. A statutory declaration or statement of truth detailing the evidence of the applicant’s entitlement to apply for registration will be required.
The Land Registry will generally notify owners of registered land in the vicinity of the land for which the application has been made, giving them an opportunity to comment upon or object to the application.
Where the application for adverse possession of unregistered land is successful, the applicant is generally granted a registered possessory title to the property.
A possessory title maybe upgraded to an absolute title after a further period of 12 years.
An application for adverse possession of registered land only requires 10 years possession.
As the land is registered, the Land Registry will notify the registered owner of the application in writing and the owner will have a period of time in which to object to the application.
If the application for adverse possession of registered land is successful, the applicant takes the land subject to the same matters that are recorded on the Land Registry title to it (other than, in most cases, mortgages).
This means that where the registered proprietor had been registered with absolute title (the best class of title available), the applicant will also be registered with absolute title. Likewise, where the previous proprietor had possessory title, the applicant would be registered with possessory title.
We have been able to get our client title to the two areas of the development site, which has made the site viable with its existing planning consent.
This highlights the importance of inspecting your property’s boundaries and seeking legal advice where there is a potential discrepancy at the outset of a development project in order to avoid difficulties and additional costs later on.
Ben Wheeler is a partner and acts for individuals and businesses on the acquisition and disposal of commercial property. If you have any queries, then you can contact Ben on 01872 265100 or email solicitors@stephens-scown.co.uk.