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Access Case Set for Further Hearing

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

There is a presumption in law that where a property adjoins a highway, the landowner owns the soil up to the middle of the highway unless it can be shown that this is clearly not intended to be the case.

Recently, the owners of a property in Devon sought to use this principle to persuade the Land Registry to amend the register in order to transfer from their neighbour to themselves the title to land that provided an access to their property from the street. The neighbour had not at any point been in physical possession of the access way, but it was shown as his on the plan registered at the Land Registry.

The access was not capable of being used by vehicles, being only suitable for pedestrian use. The adjudicator accepted that when the neighbour bought his property, the inclusion of the access land in the title deeds was an error, as it had incorrectly been shown as belonging to the vendor. The adjudicator also ruled that whilst the claimants had the right to bring the claim, on the facts the land in question was not their property but belonged to a third person not known.

The fact that the access could not be traversed by vehicles was sufficient to rebut the assumption that it should belong to the claimants.

The claimants appealed. The High Court agreed that they had the right to apply for the register to be corrected even though they had never owned the land in question. It concluded that the dispute was more than a simple boundary dispute and that, since the neighbour was not the original purchaser, rectification of the register would be required to effect a change. This is an important point since rectification is only permitted in exceptional circumstances.

In the absence of sufficient evidence regarding the impact on both parties of either altering the register or not altering it, the Court remitted the case back to the adjudicator to be redetermined after evidence on those points had been received.

In this case, a simple error has led to three hearings, and the costs incurred by both sides in the dispute must greatly exceed the value of the land in question. In the costs hearing on the case, the judge declined to allow the landowners to claim costs from their neighbour, even though they had achieved a ‘victory’ on the principal legal arguments.

Our advice may help you to resolve a boundary or access dispute amicably and at much less cost than use of the judicial process.

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