Land registration – Alteration of register – Mistake – Appellant appealing by way of rehearing against decision of First-tier Tribunal directing Land Registrar to cancel application to alter register – Whether appellant satisfying tribunal of mistake to be corrected – Whether mistake proven on facts – Appeal dismissed
The appellant applied to the Land Registry to alter the proprietorship register in respect of a property at 3 Montem Lane, Slough, Berkshire. The application sought the replacement of Q’s name as registered proprietor with her own. Although he was given due notice of the application, Q neither responded nor objected. However, the application was opposed by the respondent local authority which had brought criminal proceedings against Q and other individuals (including the appellant) and, with a view to seeking a confiscation order pursuant to the Proceeds of Crime Act 2002, had obtained a restraint order restricting dispositions of the property without its prior consent. The respondent had sought to freeze the property as it was identified as a valuable asset which once sold would facilitate the payment of a substantial sum by Q in the confiscation proceedings. The restraint order was protected by the respondent entering a restriction in the proprietorship register.
The appellant had to satisfy the First-tier Tribunal (FTT), on the balance of probabilities, that each of the statutory conditions had been met and that the FTT should therefore alter the register in her favour. She contended that there was a mistake on the register in that Q should not have become registered proprietor because the document which had led to his entry on the register (form TR1), despite outward appearances, had not been signed by her nor had its execution been properly attested. The FTT directed the registrar to cancel the appellant’s application to alter the register but the appellant was granted permission to appeal by way of re-hearing.
Held: The appeal was dismissed.
(1) In order to establish that there was a mistake, the appellant had to prove that the TR1 form was not signed by her; or, if it was, it was signed under duress of circumstances; or was not properly attested. If the appellant had not signed the TR1, she would have remained the registered proprietor of the property. The problem faced by the appellant was that she had made a number of statements in the context of her application for benefits and in the course of the criminal proceedings which did not support, and positively undermined, the position she now adopted. Furthermore, the appellant’s responses to questions before the tribunal gave further weight to the unreliability of her evidence as a whole. The alternative contention that, if the signature was that of the appellant it was extracted by means of duress was a complete non-starter. At no stage had she elaborated upon her claim that she might have been deceived into signing the form or signed the form under some kind of duress. There was no evidence of abuse upon which a finding of duress could conceivably be based.
(2) As to whether the TR1 form had been properly attested, the FTT felt able to compare the signature on the TR1 purporting to be that of the witness (S) with that on his passport in assisting it to its conclusion that the signature on the TR1 was not his. No expert had been asked to make that comparison, and those were the only two signatures available to the FTT. The FTT correctly stated that it was entitled to look at any material which had a probative value. However, that was not the same as accepting such material as being true and reliable. Taking account of all the evidence, the appellant had not come close to satisfying the tribunal on the balance of probabilities, as she had to, that the signature on the TR1 was not that of S. As she had failed to prove that the signatures on the TR1 were not those of the appellant and S respectively, she could not establish that the entry of the name of Q onto the register was wrong. There was therefore no mistake and the FTT’s direction to the registrar to cancel the appellant’s application was correct. The appeal therefore had to be dismissed: Norwich & Peterborough Building Society v Steed [1993] Ch 116 and NRAM Ltd v Evans [2017] EWCA Civ 1013; [2017] PLSCS 154; [2018] 1 WLR 639 applied.
(3) The tribunal disagreed with the conclusions of the FTT on the true scope and extent of the powers of alteration of the register contained in Schedule 4 to the Land Registration Act 2002. The approved test in NRAM Ltd v Evans required a court or tribunal to consider whether, had it known the true facts at the time of the registration of an instrument, the Land Registry would have done something different. By section 25(1) of the 2002 Act, a registrable disposition only had effect if it complied with such requirements as to form and content as the rules might provide. Rule 58 of the Land Registration Rules 2003 provided that a transfer of a registered estate had to be in prescribed form and by Schedule 9 to those Rules that form had to be executed as a deed. The general formalities for the execution of deeds were laid down by the Law of Property (Miscellaneous Provisions) Act 1989, section 1(3)(a) of which required a person executing a prescribed form to sign it in the presence of a witness who attested his or her signature. It followed that a failure to attest the form properly would result in the disposition failing to have effect, and being void. The disposition, had it failed to satisfy the prescribed formalities, would have therefore been void not voidable, and would have remained so at the time the disposition was presented to make Q the registered proprietor. Had the true facts been known to the registrar, namely that the disposition was void, the registrar would have done something different: he or she would have refused to enter Q on the register as proprietor. The registration of the transfer would have been a mistake but alteration of the register was not automatic, and the registrar (or the FTT) had to apply Schedule 4 in order to decide whether to alter the register on being satisfied that a mistake had been made.
Justin Bates and Ayesha Omar (instructed by Orrick Herrington & Sutcliffe LLP) (all acting pro bono) appeared for the appellant; Scott Stemp (instructed by Slough Borough Council) appeared for the respondent
Eileen O’Grady, barrister
Click here to read a transcript of Akhtar v Slough Borough Council
