Very old building

[JanieB]

I’ve just had the chance to go round an old hotel in my town as a member of the council. It has been closed for 3 years. The last licencee just used it as a bar and ignored the rest of the building. New owners have bought it and were asking our advice. The original part of the building is pre Cromwell and the civil war. I was the only one to go round most of it. There was one staircase that was so perpendicular I wasn’t going to risk it. Going up I could probably have coped with but coming down no no.

The ground floor is pretty good. Needs a bit of decorating but could work as is. The rest……. I’ve seen better preserved buildings in Ephesus and Pompeii. Put a fireproof ceiling on the ground floor and set fire to the other floors would save a lot of manpower wages clearing it.

Anyway, there is a strip of land outside the building that everyone has assumed belonged to the hotel. It’s unregistered land It’s between the pavement (no dropped curb) and the building. It has always been used as part of the bar and was until recently defined with planters with customers able to use tables and chairs on it. Whilst the hotel has been shut, the planters have gone and drivers are using the space to park driving over the nondropped curb to do so. My question is that as this area isn’t registered, and until recently has been fenced off from the surrounding land are they elegible to apply for adverse possession, even though cars have been parking on (illegally) for 3 years.

 

[Michael55]

Don't take online legal advice

 

[Flyfisher]

Well, anyone is eligible to claim adverse possession but whether they are successful will depend on the particulars of their claim. The first thing to understand is that all land in the UK belongs to someone, even if it is unregistered. Unregistered really just means that Land Registry doesn't know who is the rightful owner and therefore cannot legally guarantee that ownership. So, registration or not has little to do with claiming adverse possession. Indeed, even registered land can be subject to an adverse possession claim.

The key requirement for an adverse possession claim is for someone to effectively 'take control' of the land, behave as if they do own it and exclude the legal owner (hence 'adverse'). If the hotel owner has 'occupied' the land, clearly marked it as their own (typically but not essentially a fence) and generally behaved as the owner (eg by erecting signs of ownership etc) for a period of 12 years then that would form a strong basis for an adverse possession claim. There's a lot of guidance information about the process and requirements on the Land Registry website, together with all the required forms.

Land registry is generally keen to have all land registered. Indeed, from 1990 (I think, or thereabouts) it became law to register all property transactions, the intention being to gradually ensure that all land becomes registered, but before then it was not a legal requirement to register a property. There are likely many forum members living in unregistered properties and in such cases their proof of ownership is the physical deeds to the property, whether held by them or by their mortgage company. When an unregistered property is sold nowadays, it's required that the property is registered as part of the transaction, normally by the seller, and if the physical deeds are available it's an easy enough procedure.

Of course, physical deeds can be lost or destroyed for all manner of reasons so there has to be a process to manage such circumstances. Again, lots of official info on the Land Registry website but the basic process is that the owner makes a registration claim based on all the information and documentary proof available, eg council tax payments, mortgage records, utilities, tax records, basically anything that shows the person has been occupying the property, plus a 'statement of truth' about the circumstances of how the deeds were lost. The more info the better. Land Registry will then assess the information provided and decide how to register the property. They may issue a 'Possessory Title', which can be challenged by anyone with a better claim to the property or they may issue a 'Title Absolute', which cannot be challenged and is absolute legal proof of ownership. Any owner of a Possessory Title can apply to upgrade it to Title Absolute after a period of 12 years.

Having said all that, I'm not a lawyer, have no legal qualifications and wholly endorse Michael55's comment in the previous post.
My comments are based purely on my own experience over the years of personally dealing with Land Registry for most of the scenarios described and while it is generally safer to use a lawyer for such things, I can personally attest that it isn't actually necessary. All the required forms are available on the Land Registry and Government websites together with extensive guidance notes, so much depends on how much time and effort you wish to spend on DIY versus how much money you wish to spend on a professional doing the job for you.
Much like renovating a period property really!

 

[sgking]

Can this strip be argued to be highway?There is case law establishing that highway cannot be adverse possessed.

 

[Flyfisher]

Possibly. I don't know but I'd suggest it's not relevant. More correctly, it might be relevant but it's not necessary to investigate before claiming adverse possession.

It seems to me that these sorts of issues can be dealt with in two ways. The first is to consider all the 'what-ifs', which will usually raise a whole load of questions that we won't be able to answer because we're not trained, qualified or experienced in such matters so we look to others for advice (fair enough) before ending up paying for expensive professional legal advice, which itself might have some uncertaincies.

The other approach is to just make an application to Land Registry for (in this case) first registration of the land in question. All the forms are readily available on the Land Registry website together with sufficient guidance notes to make it a fairly simply process and should cost less than £100 (again, full fee information available on LR website).

With this approach, any associated issues, such as the highway possibility raised above, will be discovered and dealt with by Land Registry using their own expensive professional advisers and if they turn out to affect the application then LR will notify you accordingly. You'll then be professionally advised of the issue and may then be able to work around the issue in some way, eg perhaps changing the area of land being registered. Worst case is that the registration is refused and you've lost less than £100.

The point is, LR is the statutory body and ultimate authority for such things, not professional legal experts. Also, Land Registry WANTS all land to be registered so they are on YOUR side. If your claim has merit they will help you get it approved. Alternatively, you can spend many £1000's for solicitors to prepare and submit your claim and handle any issues that arise but it will ultimately be the same process as far as LR is concerned. Worst case is that registration is refused but now you've lost many £1000s.