Adverse possession of Network Rail land

[Lindsayly]

We have recently learnt that our neighbour wants to try and buy some Network Rail land near us to build houses on. He says he's been trying to contact Network Rail for ages but has heard nothing back so is intending to try and claim the land through adverse possession.

The land in question is between our two houses and is overgrown but a wonderful habitat for wildlife.

He is going to say that he has been using the land for the last 19 years - which is completely untrue.

Are you able to make a claim of adverse possession on land owned by the railway? And if you the answer is yes, how would you challenge a false claim?

Thanks

 

[IanXC]

Well these are the people they should have been contacting about this:

Network Rail Property - Network Rail

Network Rail Property is the commercial division of the organisation accountable for the management of all our land and property assets.

www.networkrail.co.uk

It sounds to me like you want to prevent this development taking place? You could contact Network Rail's help desk to make them aware of this person's intentions?

Contact us - Network Rail

For safety issues call our 24 hour helpline: 03457 11 41 41 To report a crime call the BTP: 0800 40 50 40, 999 or text: 61016

www.networkrail.co.uk

 

[DarloRich]

These Land Registry guides may be helpful:

Practice guide 4: adverse possession of registered land

www.gov.uk

Practice guide 5: adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003

www.gov.uk

it is for the owner of the land to challenge any false claim. You could, of course, help the owner by providing with notice of the intended claim and by offering supportive evidence to them.

The courts don't take kindly to untrue statutory declarations btw!

 

[4-SUB]

If Network Rail are aware of their use of the land, then the possession may not be regarded as "adverse", especially if there has been an offer to buy the land...

Plus, is the land registered or not? If it is registered, he won't get very far I feel as the owner will be contacted in first instance.

Also, having evidence of actual use of land is strongly advised in case of adverse possession - either proving you have fenced it off to the exclusion of others including the true owner, and/or make material use with evidence - it sounds like he might not have. Just wanting to grab a strip of unused land is not enough.

Plus, even if successful, he will only get possessory title - with sufficient evidence, this can be overturned by the rightful owner - buying a house on land with possessory title isn't something I would do without substantial indemnity insurance...

(I have an adverse possession in the queue at the Land Registry for land at the back of our garden - the application went in over a year ago....it is glacial at the moment)

 

[pdeaves]

It sounds to me like you want to prevent this development taking place? You could contact Network Rail's help desk to make them aware of this person's intentions?

Contact us - Network Rail

For safety issues call our 24 hour helpline: 03457 11 41 41 To report a crime call the BTP: 0800 40 50 40, 999 or text: 61016

www.networkrail.co.uk

I will 'second' this. I have called the helpline before and they have always been decent people to deal with, knowledgeable and following up, etc.

 

[AndrewP]

I am not sure the same rules apply with railway land as it is covered by Act of Parliament so it may not be as easy as they think - especially if it is classed as operational.

If you want to stop this make an enquiry about purchasing it yourself - it will likely put wheels in motion about ownership

 

[reddragon]

Network Rail has a huge issue in the fact that most of it's land is not registered and often gets taken over by gardens etc.

The original enabling act plans & sections only provide a line of deviation not precise boundaries, so often only old OS maps are of any use.

I can tell you gaining access to land near a railway can be challenging because ownership is unknown.

I am not sure the same rules apply with railway land as it is covered by Act of Parliament so it may not be as easy as they think - especially if it is classed as operational.

If you want to stop this make an enquiry about purchasing it yourself - it will likely put wheels in motion about ownership

Railway property have ownership maps of operational railway land, but other land can be a little grey!

 

[Lindsayly]

Well these are the people they should have been contacting about this:

Network Rail Property - Network Rail

Network Rail Property is the commercial division of the organisation accountable for the management of all our land and property assets.

www.networkrail.co.uk

It sounds to me like you want to prevent this development taking place? You could contact Network Rail's help desk to make them aware of this person's intentions?

Contact us - Network Rail

For safety issues call our 24 hour helpline: 03457 11 41 41 To report a crime call the BTP: 0800 40 50 40, 999 or text: 61016

www.networkrail.co.uk

Well these are the people they should have been contacting about this:

Network Rail Property - Network Rail

Network Rail Property is the commercial division of the organisation accountable for the management of all our land and property assets.

www.networkrail.co.uk

It sounds to me like you want to prevent this development taking place? You could contact Network Rail's help desk to make them aware of this person's intentions?

Contact us - Network Rail

For safety issues call our 24 hour helpline: 03457 11 41 41 To report a crime call the BTP: 0800 40 50 40, 999 or text: 61016

www.networkrail.co.uk

Thank you, IanXC. I have emailed the Help Desk to let them know so hopefully should get a response from them soon.

These Land Registry guides may be helpful:

Practice guide 4: adverse possession of registered land

www.gov.uk

Practice guide 5: adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003

www.gov.uk

it is for the owner of the land to challenge any false claim. You could, of course, help the owner by providing with notice of the intended claim and by offering supportive evidence to them.

The courts don't take kindly to untrue statutory declarations btw!

Thanks, DarloRich - I will take a look at the guides. I've taken some photos as well of the site as it is currently to prove he's not using it at the moment.

If Network Rail are aware of their use of the land, then the possession may not be regarded as "adverse", especially if there has been an offer to buy the land...

Plus, is the land registered or not? If it is registered, he won't get very far I feel as the owner will be contacted in first instance.

Also, having evidence of actual use of land is strongly advised in case of adverse possession - either proving you have fenced it off to the exclusion of others including the true owner, and/or make material use with evidence - it sounds like he might not have. Just wanting to grab a strip of unused land is not enough.

Plus, even if successful, he will only get possessory title - with sufficient evidence, this can be overturned by the rightful owner - buying a house on land with possessory title isn't something I would do without substantial indemnity insurance...

(I have an adverse possession in the queue at the Land Registry for land at the back of our garden - the application went in over a year ago....it is glacial at the moment)

I think the land is registered to Network Rail - it borders a footpath that Network Rail own and maintain. The land that our house was built on (which backs onto it) also used to belong to Network Rail (bought by the people before us).

Interestingly we have a covenant in our deeds that says we are not allowed to dig a pond due to the railway tunnel so hopefully he wouldn't get permission to build a house that close to it anyway?

 

[DarloRich]

Thanks, DarloRich - I will take a look at the guides. I've taken some photos as well of the site as it is currently to prove he's not using it at the moment.

No problem - IRC: It is not so much use that is important but use to the exclusion of all others ( including the legal owner) that is important.

I think the land is registered to Network Rail - it borders a footpath that Network Rail own and maintain. The land that our house was built on (which backs onto it) also used to belong to Network Rail (bought by the people before us).

That isnt a given! You can easily check the position with a Land Registry search on line. Costs £8/12 ( cant recall which)

 

[AlterEgo]

Indeed, much railway land is unregistered. Network Rail may be the owner but vast tracts remain unregistered with the Land Registry.

 

[43066]

Indeed, much railway land is unregistered. Network Rail may be the owner but vast tracts remain unregistered with the Land Registry.

Which I suppose makes sense when it was purchased in the mid 19th century (before land registration became a thing) and hasn’t changed hands since.

 

[AlterEgo]

Which I suppose makes sense when it was purchased in the mid 19th century (before land registration became a thing) and hasn’t changed hands since.

Yes. And registering it all would be an enormous undertaking.

 

[Mcr Warrior]

Indeed, much railway land is unregistered. Network Rail may be the owner but vast tracts remain unregistered with the Land Registry.

This has caused an issue with the tarmacked track from the A628 Woodhead Road down towards the cottages near to the former Woodhead railway station. The track surface is badly potholed in places, but no one seems to know who owns it / is responsible for its upkeep!

 

[InOban]

If this land is disused, won't it have been passed via the Residuary Board to Highways England?

 

[reddragon]

If this land is disused, won't it have been passed via the Residuary Board to Highways England?

Yes, but only if they know about it.

 

[172007]

We have recently learnt that our neighbour wants to try and buy some Network Rail land near us to build houses on. He says he's been trying to contact Network Rail for ages but has heard nothing back so is intending to try and claim the land through adverse possession.

The land in question is between our two houses and is overgrown but a wonderful habitat for wildlife.

He is going to say that he has been using the land for the last 19 years - which is completely untrue.

Are you able to make a claim of adverse possession on land owned by the railway? And if you the answer is yes, how would you challenge a false claim?

Thanks

I would be tempted to say half has been managed by you for 19 plus years. Say you have managed it as a habitat by clearing tree growth and promoting wild flowers. If the person wants to build houses they will need to by your half.

 

[tspaul26]

Are you able to make a claim of adverse possession on land owned by the railway?

Anyone can make a claim. As to whether it would be successful then the answer is ‘it depends’.

Can’t really be much more help as it will be very fact specific (character of the land, where it is located, when and why it was acquired, under what power and so on).

There is also no decided case on a fundamental underlying legal question at the moment which creates further uncertainty.

And if you the answer is yes, how would you challenge a false claim?

You wouldn’t as you are not the true owner.

However, if Network Rail are minded to contest the matter then they may well seek your assistance as a witness to rebut whatever it is that your neighbour avers in his evidence.

 

[4COR]

I would be tempted to say half has been managed by you for 19 plus years. Say you have managed it as a habitat by clearing tree growth and promoting wild flowers. If the person wants to build houses they will need to by your half.

The point is that you need to actively use the land and be able to prove it - allowing it to go to wild for 19 years wouldn't be sufficient!

I do not know if it is possible for an adverse possession to be claimed by multiple parties - and if it was, I would expect both parties would need to agree: the neighbour is highly unlikely to do this if it costs them half the cost of the land!

Indeed, much railway land is unregistered. Network Rail may be the owner but vast tracts remain unregistered with the Land Registry.

This. Registration is a specific action with respect to land - and easy to check via a search with the Land Registry. Ownership does not mean registration - registration is a huge effort for so much land!! If unregistered, then the 12 year rule comes into effect, with the caveats as stipulated in law.

 

[DarloRich]

I would be tempted to say half has been managed by you for 19 plus years. Say you have managed it as a habitat by clearing tree growth and promoting wild flowers. If the person wants to build houses they will need to by your half.

that would fail to secure possessory title.

allowing it to go to wild for 19 years wouldn't be sufficient!

interesting question if you fenced it off all those years ago and left it "fallow" so to speak. ( this is all starting to feel like a seminar! Don't set me an essay for Wednesday )

 

[leytongabriel]

You may find the Commnity Planning Alliance helpful. Lots of experience in fighting proposed developments.

 

[Kingham West]

Network Rail is a statutory undertaker , from memory the BTC act 1949 ( check the Act date as they were annual ) , made adverse Possession impossible , the land was as noted above taken under Acts of Parliament .
I am not sure why the BTC put it in annual Bill, but no doubt someone can enlighten us .

 

[Grecian 1998]

Claims to adversely possess public highway land have not succeeded as a matter of public policy, although I'm not aware of any which have gone to the Court of Appeal as yet. That doesn't stop people from occupying highway land and the Highways Agency are unlikely to bother seeking to recover control unless the encroachment is serious enough to merit action, but it does stop the occupier ever gaining title.

I'm not aware of any specific case law, but I suspect the same will be true of Network Rail land. Ultimately if it was possible to adversely possess NR land, a situation could potentially arise where NR couldn't carry out their statutory obligations effectively (granted that isn't the case here but it is a hypothetical scenario). That is clearly not a desirable situation.

S.16 of the Railway Regulation Act 1840 (which is still in force) also effectively makes it a criminal offence to occupy railway land, albeit it appears NR would need to ask them to leave and the occupier would need to refuse before it becomes illegal. Again from a public policy perspective, no Court is likely to allow adverse possession which can only take place illegally.

I don't think there is anything to stop someone making a claim for AP of NR land, but I very much doubt it would get far. I suspect part of the reason there is no obvious case law is simply because no-one is able to get very far.

Disclaimer: I do work in the area of boundary disputes, but obviously none of the above is stated in any kind of professional capacity.

 

[tspaul26]

Network Rail is a statutory undertaker , from memory the BTC act 1949 ( check the Act date as they were annual ) , made adverse Possession impossible , the land was as noted above taken under Acts of Parliament .
I am not sure why the BTC put it in annual Bill, but no doubt someone can enlighten us .

It is not quite that simple and the 1949 Act is not an express bar to adverse possession.

I’m not sure that I quite understand what you mean by the phrase “put it in annual Bill”.

Claims to adversely possess public highway land have not succeeded as a matter of public policy, although I'm not aware of any which have gone to the Court of Appeal as yet. That doesn't stop people from occupying highway land and the Highways Agency are unlikely to bother seeking to recover control unless the encroachment is serious enough to merit action, but it does stop the occupier ever gaining title.

The law regarding highways is different.

On the assumption that you are referring to a highway maintainable at public expense (since all highways are by definition public), adverse possession is defeated by the automatic statutory vesting of the highway in the highway authority. It is not simply a matter of the courts deciding such cases on policy grounds.

I'm not aware of any specific case law, but I suspect the same will be true of Network Rail land. Ultimately if it was possible to adversely possess NR land, a situation could potentially arise where NR couldn't carry out their statutory obligations effectively (granted that isn't the case here but it is a hypothetical scenario). That is clearly not a desirable situation.

The law is different.

There is some case law, but nothing directly on point. The cases that we do have would not allow one to say with any certainty that adverse possession of railway land is intrinsically impossible.

S.16 of the Railway Regulation Act 1840 (which is still in force) also effectively makes it a criminal offence to occupy railway land, albeit it appears NR would need to ask them to leave and the occupier would need to refuse before it becomes illegal. Again from a public policy perspective, no Court is likely to allow adverse possession which can only take place illegally.

The offence is not made out unless and until there is a refusal to quit the railway following a request by an authorised officer.

There are also cases which have quite narrowly construed the meaning of ‘the railway’ in the context of other similar offences.

Illegality is not an absolute bar to adverse possession in any event.

Disclaimer: I do work in the area of boundary disputes, but obviously none of the above is stated in any kind of professional capacity.

I am a solicitor specialising in (amongst other things) railway regulation and have had cause to examine this specific issue in detail very recently.

 

[4COR]

interesting question if you fenced it off all those years ago and left it "fallow" so to speak. ( this is all starting to feel like a seminar! Don't set me an essay for Wednesday )

Fencing off is a different matter, though not conclusive in its own right! But I don't think this is the situation here.

 

[Snow1964]

My parents were offered a parcel of land by the railway in 1970s, and incorporated into their front garden.

The road outside went over a railway and the parcel was the slope (effectively there were two triangular plots each side of the road, as Road climbed to go over the bridge). I think it had been rented to them but the railway had decided they no longer wanted to collect the token rent.

Our neighbour (whose house was next to the railway cutting), never bought his. And to this day it is a sloping piece of ground between the road and his front fence. I have always wondered how many of these parcels of land still belong to the railway, but are effectively in limbo. The upper fence (a Southern railway concrete posts with wire boundary) by the road was removed years ago, so perhaps ownership was given to highway authority. Just thought it would illustrate how some of these weird parcels of land historicaly existed

 

[Kingham West]

It is not quite that simple and the 1949 Act is not an express bar to adverse possession.

I’m not sure that I quite understand what you mean by the phrase “put it in annual Bill”.

The law regarding highways is different.

On the assumption that you are referring to a highway maintainable at public expense (since all highways are by definition public), adverse possession is defeated by the automatic statutory vesting of the highway in the highway authority. It is not simply a matter of the courts deciding such cases on policy grounds.

The law is different.

There is some case law, but nothing directly on point. The cases that we do have would not allow one to say with any certainty that adverse possession of railway land is intrinsically impossible.

The offence is not made out unless and until there is a refusal to quit the railway following a request by an authorised officer.

There are also cases which have quite narrowly construed the meaning of ‘the railway’ in the context of other similar offences.

Illegality is not an absolute bar to adverse possession in any event.

I am a solicitor specialising in (amongst other things) railway regulation and have had cause to examine this specific issue in detail very recently.

Annual Parliamentary Bills , put in by BTC and BRB , it covered acquisitions and need for regulation changes , replaced by TWO etc , to some extent .
The matter arose in the Ackman Street to Grendon Underwood Village Green Enquiry , and later arose in the related, Newhaven Harbour Commissioners Village Green appeal which went to the Supreme Court if I remember correctly.
Basicly you can not create a village green on the land of a statutory undertaker , however during the hearing it became apparent that you can on land belonging to BRB (R), as it was.
If the enquiry had gone the other way , emergency legislation would obviously have been needed .
Presumably this issue must have been tested in case law .

 

[Skie]

Send a letter to NR asking them to trim any overhanging branches and state that the land is overgrown and needs tending. Gives NR evidence the land isn’t being managed/used by your neighbour and if it is overgrown or a mess they might actually tidy it (haha, yeah right).