road to the rainbow

The perfect development site is yours for the taking – or rather, the paying for. It has everything you need – but unfortunately it also has something you don’t: existing roadways splitting the site into two parcels of land. You can’t find out who owns them and you’re wondering if the lack of obvious ownership is going to be fatal to your development.

Unused alleyway or well trodden path? 

The most overgrown of roadways can still miraculously be a well used thoroughfare. The roadways aren’t adopted by the local authority and the title deeds aren’t clear, so you may need to look to the ad medium filum principle to help you. This is a presumption that, in the absence of clear ownership of the subsoil under a roadway, the legal boundary of the land immediately abutting a roadway extends to the centre point of that roadway. As you will own all of the surrounding land – problem solved. This will apply even if the title documents for the land adjoining the roadway do not specifically include the roadway. It’s a strong presumption, but rebuttable – so keep an eye out for opponents to your development brandishing evidence to the contrary.

The great thing about ad medium filum is that it helps developers who are buying land to assemble a site on either side of a roadway by ensuring that title to that roadway is acquired as part of the purchase. Keep in mind, though, that building lines for proposed development sites may need to be carefully laid out to take account of any roadways owned by existing properties that will not be acquired as part of the development.

If you should want to make use of an existing roadway which you don’t own to gain access to the development, you will need to make sure you are granted appropriate rights from the owners of the land adjoining the roadway. But beware – this can come at a price.

…or rainbow’s end

There is usually a solution to access problems, but make sure you ask:

  • Is the road adopted?
  • Can you apply ad medium filum?
  • Do you need any rights of way?

And make sure there are no third parties waiting in the wings to claim a right of way. If you’re thorough, that access road can be the one that takes your development straight to the pot of gold.

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.