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4 Federation of Private Residents’ Associations Newsletter ASK THE FPRA Q A

Boundary Issue I am writing with a boundary dispute type of question. There is a former council depot adjacent to our block of flats. The developer who bought the land has submitted an application to build a large number of flats for students. The layout plan includes a pedestrian entrance – perhaps intended as a fire exit of some sort – which opens onto what is legally property belonging to our residents’ association. The Land Registry map for our property shows that technically the RA own the land that the pedestrian entrance will open onto. However that land is also a public highway and pavement. Can we stop the developer from creating a pedestrian access or indeed any kind of access across land that is technically ours? FPRA Legal Expert Nick Roberts replies:

I am afraid that I cannot offer you the advice that you would wish to receive. It is a clear principle of law that the owner of land which adjoins a highway has the right to access it. In law the term ‘highway’ includes footpaths, bridleways, and what we think of as public roads. In the typical case of an urban road both the pavement and the carriageway (and generally the verge, if any) are part of the highway. It is not at all unusual for someone (in this case your residents’ association) to be the owner of land which is subject to public highway rights. In the case of footpaths in rural areas, the path very frequently crosses land which is privately owned. Even with roads, there is a legal presumption (though it is only a presumption, and it can be rebutted by evidence to the contrary) that the owners of land on opposite sides of a road own the land over which the highway runs up to the middle line of the road. This is so, even though the Land Registry generally shows the legal boundary as running along any physical boundary e.g. a front wall or fence. If a landowner owns land on either side of a road – as will often be the case in rural areas – the road may well be owned by that landowner. Here the Land Registry is showing the highway as entirely within your land. The local authority as highway authority is generally considered to own only the surface of the highway, and sufficient depth below (and height above) to enable it to maintain the road. You retain ownership of the subsoil, and the airspace above it. Although more than a theoretical entitlement, it is not often that the landowner can make use of it in a meaningful way. An adjoining landowner (‘A’) is, however, entitled to have access to a highway only if his land actually abuts the highway (here including the pavement). If the landowner who owns the subsoil of the highway (owner ‘B’) also owns a strip of land

Issue No. 107 Winter 2013

Members of the committee and honorary consultants respond to problems and queries sent in by members

between the highway and the neighbouring land, then because B owns that land, he is entitled to prevent A from having access to the highway. The same applies if B happens to own the wall which separates A’s land from the highway. But, if this is the case, what one is saying in effect is that A’s land does not then abut the highway. It may be worth your closely examining the definitive map of the highway that you say that you have, but it looks to me as though the gateway that the developers are proposing to erect will open directly on to the close.

Reserve Funds Q A

On the advice of our accountants, our RMC has this year produced separate accounts for the service charge and the company. This has created a dilemma for the Company Board because we would like to hold a reserve fund in the company’s account, rather than the service charge account, in order to avoid the long-drawn-out S20, Landlord and Tenant Act 1987, consultation process when responding to a crisis. The Board now proposes to place a resolution before the next AGM authorising a levy of £150 per shareholder per year for the next five years. We would also propose reducing each leaseholder’s annual service charge by the same amount – effectively transferring the Sinking Fund from the service charge account to the company’s account. Is there any legal reason why we cannot do the above? FPRA replies: The advice that you have received reflects the way in which legislation aimed to protect flat lessees from inefficient (or dishonest) freeholders and their managing agents has a detrimental effect on RMCs like yourselves. This applies in particular to the rules that require that the service charge money for each estate must be held in a separate bank account and to be held in trust, which would protect leaseholders’ funds, particularly if the managing agent runs into financial trouble.

As to your proposed resolution, we would suggest that the service charge provisions in your lease make it difficult for money intended for use in ways envisaged by these provisions to be treated as anything other than service charge funds and held in the same way.

If all your 16 lessees are content to follow your proposals, this would probably work very well. However, if one of them (or a future one) runs into financial trouble and you have to contemplate legal action to collect dues, such action would have to be based on the terms of the lease and the law, so there could be problems. You mention Section 20. However, that law governs the spending on the property and not the way in which you raise

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