In this post I will talk legal stuff. It is utterly compelling and could be turned into an award winning novel. You may, however, think otherwise. The fault lies firmly with Robbie Cheadle/Roberta Eaton for writing about the Great Fire of London. It brought all this back
In my years as a property lawyer in the City of London I found myself involved in some of the iconic buildings of the period, alongside some mundane ho-hum structures, many listed buildings, a few ancient monuments and countless rules and customs and practices that revealed the absurdities of how our legal system has developed over the centuries.
Trying to explain to a client, often an impatient, moneyed, egocentric, self aggrandising developer that unfortunately the site they’d allowed their rapacious optics to alight upon wasn’t a simple knock-it-down-and-stick-it-up-quick turn of a profit but a rather fascinating curio that was impacted, even in the 21st century by some Seventeenth case involving the church, a widow and exploding bloomers. It didn’t make me popular.
If you were inventing a legal system that was fit for purpose in this modern world of ours, it wouldn’t be the English and Welsh version of the Common Law. At least as it applies to land.
Our land law has developed through a mix of ancient rights, case law, statue, legal fiction, precedent and sheer bollocking bloody-minded surrealism. It was probably fine in 1066 when Billy Conkers claimed it for his own with his French take on the Veni, Vidi, Vici concept – I came, I stuffed it up Harry-boy and it’s all mine…
All the lands of England and Wales were his to divi up. After that it was a slippery slope through fee simples, fee tails, escheats, cesqui qui trusts, profits a prendre, rights of mast and turbary and panage, incorporeal heriditaments, rules against perpetuities and accumulations, courts of law and equity… and they’re just the ones you still need to be aware of…
But these were chapters one through four of the basic Janet and John Get A Mortgage learner we property worzels have to absorb. No, if you do any sort of building in the City of London you need to bear in mind a Charter of 1667 between the newly restored and broke King Charles II and the Mayor Aldermen And Burgesses of the City of London (believe it or not, that’s still the official title for the local authority that manages the public affairs of the richest municipal area in the country). Charlie had just got back to kingly control having seen the Cromwell interlude end a few years earlier. There’d been the odd European war too and now his capital, having been decimated by the plague had burnt down in the Great Fire.
He needed money – I mean barrow loads of the stuff, wonka on a scale not hitherto known. So he did a deal with the ‘Have I got an offer for you’ wideboys of the City. They’d get to own and control all the roads and rebuild them, nicely widened while he got on with rebuilding the buildings. A bit dry and dull, you’d think, wouldn’t you?
Wind the clock on. There are maxims a plenty in the English and Welsh legal system, one being the Law Abhors a Vacuum. This has nothing to do with road sweeping, or an allergic reaction to all forms of household cleaning but to legal ownership of said land. Because our legal system developed over centuries, before satellite mapping allowed for fractions of a widget to be used to identify boundaries, a set of presumptions grew up to try and help neighbouring land owners identify precisely where the boundary ran. If you had a plan with a thick red line on it the exact placement of a boundary could be troubling. There was the hedge and ditch presumption… no, not now class.
These things were rebuttable; they applied unless there was better proof of who owned what bit.
Which brings me to roads. Especially ancient roads. Roads that have been there since time immemorial – which in case you didn’t know was set by a statue of 1275 as being 1189 – I know, I know can that really still be relevant. Believe it, sweet pea.
See the problem is that no one knows who laid out, sat the Mall or Whitehall. They’ve been there for, like, ever. The properties that front all these roads – which let’s face it make up most of the roads in England and Wales – it’s only new bypasses and housing estates were ownership can be shown by a paper title – have none with any sort of paper title proving ownership.
The Crown – really HM Government – could claim ownership but the Courts have never been keen on that so they came up with another rebuttable presumption – the Ad Medium Filum one. Which posits that, unless someone else can come up with a bit of paper showing ownership, the people who own the property facing the road own it up the the mid point.
Of course this is mostly a nice theory but since the Highways authority controls the use and maintenance of the road (via a superceding statuary right under various Highways Acts) it’s not like you can block it and build on it.
Over and under it, is a different matter and, in the City where buildings are eye-wateringly valuable a few subsoil and air rights are pretty attractive.
Our developer eyes the possibility of a large basement running under half the highway, maybe a balcony. Better still he has land on either side of the road and can bridge it. Oh frabjous day callooh callay.
But hang on a momentito. Wasn’t there something about 1667 earlier?
Well done, Swot Minor, take a biscuit.
Indeed someone found this wretched parchment, languishing in the Guildhall Library and told the city who thought… hmm, doesn’t this deed rebut the presumption? After all the roads were given to the City Fathers weren’t they?(interesting side note, there are no ‘roads’ in the city because the word ‘road’ only came into common usage after the ‘roads’ had been laid out and named, so we have streets a plenty and ways and lanes but no (well maybe now a couple) of roads). And there’s no evidence anyone can adduce to the contrary to rebut the presumption. So Bingo says the City, they’re ours.
Hang on, says the Crown as successor to Charles II, the roads as we see them today, are you sure they are exactly the same as they were? There have been three devastations that leave a black layer in London’s subsoil – a pillage by Boudicca the Great Fire and the Blitz – but countless rebuildings and reorganisations. Some of it must be ours because if it was built on land we then owned (the Charter declared the lands not transferred in 1667 to be the Kings. And who can prove it wasn’t?
This argument went to Court and the Court decided that if the roads weren’t most likely the City’s then they were the Crown’s.
And so, if you build so mach as millimetre – or in one case I had fourteen inches – overhanging the highway the City will come after you. And how do they know you might be encroaching? They are the planning authority, too. You have to supply them plans; plans which they insist identify and overhangs. And if you do, you then receive a lovely little letter from the lawyers reminding you that, if your client does decide to build his scheme, he needs to come and have a chat about the necessary payment.
You drop the client an email.
In almost every case he (for it often was in my day) says ‘Can you enlighten me, Geoff?) In truth it was more usually some variant on ‘What. The. Actual. Fuck?’
And I’d offer him tea and copious opiods and hope that, when it was built and let and hugely profitable he’d still pay my bill despite my having been responsible for a significant proportion of the right side of his brain leeching out of his ears.