11 October 2019 by Olivia Pisapia

Who owns under pavement cellars?

Property owners are always experimenting with ways to make use of new space in their homes. One increasingly popular way of creating useful space is the development of underground basements, including under pavement cellars. These underground basements that extend under the highway are very common in Victorian homes in central London and were historically used for keeping coal.

On the face of it, these underground vaults seem very obviously to be part of one’s home.  However, is it wise for a landowner to assume that the basement vault within their property actually belongs to them?

Unfortunately, all too often, these types of basements are actually excluded from the Land Registry title plan. This means that the land is unregistered and the owner is unknown.  This is despite the fact that, often, the only way to access these underground rooms is through the property itself.

In many cases, the issue of ownership of the vault does not come to light until the owner of the property decides to sell and the prospective buyer’s solicitor makes enquiries. Establishing ownership is made even more difficult because the Land Registry does not show precise boundaries. Its approach is generally not to include within the registered title any roads adjoining the property or foundations, vaults or eaves that extend beyond the boundary line.

So, what should you do if you own a property with a vault or if you are interested in buying a property with a vault but are unsure of its ownership?

There is an old common law doctrine known as medium filum, which is a presumption that owners of land own the subsoil up to the middle of the road. In theory, this means that the vault belongs to them regardless of what is registered and included on the title plan. Property owners should not rely solely on this presumption, as it can be challenged.  Although such a challenge will be costly and difficult, and would require a considerable amount of evidence to be successful, it is nevertheless a risk.

Best Advice

To afford you maximum security, it is best to ensure that the vaults are registered as part of your property. To do this, you should make an application to the Land Registry for the vaults to be added to the title.  Such an application must be submitted together with a legal document called a ‘statutory declaration’, which confirms information such as how long you (and any previous owners) have used the vaults, whether or not the use has been continuous and exclusive and whether the use has been as of right. The longer the period of time that can be given, the better. A detailed plan should also be attached, showing the vaults.

The Land Registry will then serve notice on the highways department of the local authority, giving it 15 working days in which to object. If no objection is received by the local authority within 15 days, then the vaults will be added to the plan and registered with the Land Registry. The fee for making an application is £40 and is well worth it in order to rectify the title and prevent any issues further down the line, should you come to sell the property.  If an objection is received, the matter would have to be investigated further and, ultimately, referred for adjudication.

If you are have an underground basement or are thinking of buying a property with one and would like to know more, please contact Jack on 020 7288 4711  or email  jacklambdon@boltburdon.co.uk.  Alternatively  please contact a member of our residential real estate team.

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