How to plug the gap in the road

The gap in the road, more commonly known as the ransom strip, is a problem that cannot be ignored and can, as the name suggests, be expensive to fix.

Housing development sites are generally sites on which historically, there has been little or no housing. They have never required access for the number of homeowners, visitors, bin lorries, workmen, delivery drivers and construction vehicles which come hand in hand with new housing or indeed for the services pipes and cables which must be brought into the site to service the new homes. If the strip of land at the access to the site is not owned by the developer, all of those vehicles, pedestrians and service media must have the right to cross the strip to enter the site and reach the new homes.

Housing development sites often involve site assembly piecing together several titles and making sure all the jigsaw pieces fit together leaving no gaps or holes. It is especially important to make sure that the entrance and exit from the site is connected to a public road with no ransom strip in between.

What happens when the pieces don't fit together and there is a potential ransom strip across which access is needed?

There are options which depend on whether the owner of the strip can be found or not so identifying the owner of the strip is a key aspect.

If the owner can be identified, negotiations can be commenced to buy it. This is the cleanest way forward but can be an expensive option, depending on the bargaining power of each of the parties. If the strip is the key to unlocking the whole development site and the only available point to enter, the owner of the strip may well seize the opportunity to name their price and set the ransom. It has been known for owners selling off land to deliberately retain a ransom strip for this very purpose and ransom payments have been known to be in the 6 figure bracket.

The second option is to negotiate the right to take access over the strip with the owner, that is, not buy the strip outright but instead take a servitude right over it. Care must be taken if this option is pursued to make sure that the rights granted cover all potential uses of the strip. For example, it must cover construction vehicles as they may not be included automatically. It must also cover the installation of any services which are to be connected to those in the public road. The owner of the strip may look to control the amount of development on the land by specifying the number of houses that can use the access strip. Again, that may not be the wisest way forward for the developer as planning permissions may change, development plans may change and the number of houses eventually built exceed the number planned initially.

The third option to explore is the possibility that servitude rights of access already exist. If the owner of the site has been taking access without the consent of the owner of the strip and has not been interrupted or stopped from doing so for at least 20 years, there could be a prescriptive right of access. If that is the case, the extent of the prescriptive right must be considered. A prescriptive right may be available but the extent of the right to take access may be limited to the type of access and route used for the past 20 years.

If the owner of the land refuses to sell or grant the access rights needed in time, adoption of the access strip for maintenance by the local authority will allow access to be taken. If the local authority cannot be persuaded to add the strip to their list of roads adopted for maintenance, it will probably mean back to the drawing board to reconfigure the site and find another access.

If the owner of the strip no longer exists or cannot be found, the solutions suggested in our article on how to deal with ownerless land must be explored. If, for example the company that owned the strip has been dissolved and no longer exists, the strip will have fallen to the Crown as bona vacantia. It is possible to apply to the Crown through the King's Lord Treasurer Remembrancer to buy the strip.

If the owner cannot be found, title indemnity insurance may be obtained to insure against a future challenge by the owner of the strip. If this option is chosen, it is important that potential owners are not approached and alerted to the plans for the strip as this can invalidate the insurance.

Another possibility when the owner cannot be found is to register a prescriptive application to acquire the land. This entails notifying every possible owner (if any can be found), occupying the land for at least one year and registering a prescriptive title. The Keeper at Registers of Scotland also repeats the notification of possible owners so choosing this option may result in blocking the insurance option.

Doing nothing at all and bashing on could result in trouble and even more expense for the developer. If the owner of the strip is opposed to the planned development, they could seek interdict from a court and bring the development to a halt. The developer could then be facing court expenses and a ransom payment on top to allow the development to proceed.

Ransom strips can unfortunately do what they say on the tin and cost a lot of money. There are options but choosing the right one must be done carefully.