Whose land is it anyway?

Kary Withers, Simon Day and Aaron Macauley examine the recently introduced requirement for registered providers to have maintain a register of their assets.

Following changes to the Regulatory Framework, which came into force on 1 April 2015, Registered Providers in England are required to maintain a register of all their assets, including all non-domestic property, such as offices, pubs, shops and community centres.

The creation or maintenance of this register requires a close look at the property deeds which should be compared to the position on the ground. It is with surprising frequency that discrepancies between the two are identified. From realising that you are not the legal owner of the land you occupy or are receiving income from, to owning land which is being occupied by a trespasser, it is vitally important that Registered Providers act to avoid others gaining rights over your land by implication, or worse, by losing title to the land altogether.

Implied Rights of Way

A person can obtain a legal right (such as a right of way, a right to park etc.) over your land if they can demonstrate that they have exercised that right for a period of 20 years without your permission, and without using force or secrecy. Therefore, you should carry out regular inspections of your assets for evidence of any use of your land by others, such as a worn footpath over an open space. If such evidence is found it is important for you to stop timing running, for example by fencing the land, or erecting signs stating that any use is with your permission. This will only be effective if you take action before the 20 years period elapses.

Adverse Possession

If your land is being occupied by a trespasser, again urgent action needs to be taken to stop time running. If the trespasser has occupied the land for a period of 10 years (since 2003) it can claim legal title to your land, by adverse possession, if certain criteria are met. If possession proceedings are commenced by you before the trespasser applies to the Land Registry to be registered as the legal owner, you can defeat their claim even if they have the requisite 10 years.

Conversely, it may be the case that you are occupying land owned by another. As above, if you have done so for 10 years and meet certain criteria, you can apply to be registered as the legal owner of that land. Time is of the essence as you need to make the application to the Land Registry before the ‘paper’ owner applies to the Court for possession. This can be particularly helpful if, for example, an access needs widening to enable a development to proceed.

Alteration of the Land Registry Title

Errors on Land Registry plans can mean that land which should be in your title is in fact contained within that of your neighbours. In these circumstances, you can apply to the Land Registry for Alteration of the Register to correct the mistake and return the land to your title.

Ensuring that the Land Registry title is correct is vitally important. It can have an effect on the value of the property when you come to sell, or you could be at risk of a claim from a tenant if you have granted them a lease over land which you do not own.

Improving your Asset Management of commercial property

Although the obligation to maintain an asset register can be seen as cumbersome and costly, it can also provide the perfect opportunity to maximise the return from your commercial stock, which traditionally may have been a bolt-on to the mainstream residential and social housing stock.

Occasionally commercial property is acquired for investment purposes but usually it is acquired as part of a stock transfer or as a by-product of purchasing a residential block.

Having a centralised record of all commercial leases, lease termination dates, rent review dates and break dates, together with details of insuring and repairing obligations can ensure you maximise the potential of your non-domestic stock and minimise risk. You will also need to ascertain your statutory responsibilities in respect of each property in order to fully understand your risk.

In many cases the financial arm of a Registered Provider is tasked with collating the register, and as the information is often taken from many different IT systems following mergers and stock transfers it is not an easy task. In our view this cannot be done in isolation and your Asset Management team will need to have input.

Kary Withers and Simon Day are partners and Aaron Macauley is an associate at Clarke Willmott. Kary can be contacted on 0845 209 1469 or This email address is being protected from spambots. You need JavaScript enabled to view it..