Land registration – Rectification – Standard of proof – Respondent applying to alter register of title to his property by removing garage and driveway from appellant neighbour’s title – Appellant objecting and matter referred to First-tier Tribunal – FTT finding mistake on register – Appellant appealing – Whether FTT wrongly ignoring need to find two mistakes by omission and inclusion of disputed land on respective titles – Appeal allowed
The respondent bought his property at 4 Beancroft Road, Bedford, in 2000 believing that it included a garage and driveway (the disputed land) as stated in the estate agent’s brochure. The respondent said he parked on the drive and made use of the garage for storage without objection until 2019, when the appellant bought number 2 and objected to the respondent parking on the drive. In May 2019, the appellant put up a retractable bollard to prevent him from doing so.
In June 2019, the respondent applied to HM Land Registry to alter the register of title to his property and that of the appellant, by removing the garage and driveway (the disputed land) from the title to number 2 and including the disputed land in the title to number 4. The appellant objected and the matter was referred to the First-tier Tribunal pursuant to section 73 of the Land Registration Act 2002. No document of title to number 4 more recent than 1946 was produced. The FTT found there was a mistake on the register and directed the registrar to give effect to the application.
The appellant appealed, contending the FTT was wrong to find that there was a mistake on the register because it had, amongst other things, ignored the need to find two mistakes: both the omission of the disputed land from the title to number 4 and its inclusion in the title to number 2.
Held: The appeal was allowed.
(1) The omission and inclusion of the disputed land were not two sides of the same coin. The respondent had to prove not that there were two separate mistakes on the register but that, on the balance of probabilities, it was more likely than not to have happened. Where there were other possible explanations for the omission of the disputed land from number 4 and its inclusion in number 2, some information about the two suggested mistakes on the register was required to show that that was the most probable of the possible explanations.
One possible explanation was that the disputed land was sold to number 2, which could have happened at any time before the respondent bought in 2000, either at the same time as a transfer of the whole or as a separate transaction. The FTT said there was nothing to suggest that such a transaction took place; but it was not for the appellant to prove that it had. Rather, it was for the respondent to show that the mistake (which was actually two independent mistakes) was more likely to have happened than a sale.
Another possible explanation was that number 4 was registered first, the disputed land was omitted by mistake, and later the disputed land was acquired by the owner of number 2 by adverse possession and then incorporated in the registered title of the whole. There was plenty of time for that to have happened between 1946 and 2000, and there was no reason why there would be any trace of it on the register today (there was no information as to what the register looked like in 2000).
In either case, the estate agent in 2000 could have included the garage in the text of the advertisement in error; The respondent did not say that he had been told by his vendor that the disputed land was part of the property.
(2) The Upper Tribunal had considered carefully whether the respondent’s use of the garage and drive since 2000 was itself evidence of a mistake on the register. But the respondent explained his belief that he owned the disputed land by reference only to the estate agent’s particulars. He did not suggest that a previous owner had told him that the disputed land was within the title, nor that he had legal advice to that effect. His belief and his activity added nothing to the information available about the title because they were explained by the estate agent’s particulars. Further, the FTT made no finding that the appellant’s predecessor in title acquiesced in or failed to protest about the respondent’s use; it made a finding of fact only about what the respondent did, not about what his neighbour thought about it.
Accordingly, the FTT’s finding that there was a mistake, without any finding as to what happened and when, meant that its conclusion was unexplained. Moreover, on the evidence before the FTT there was no basis on which the judge could have found that those two mistakes happened on the balance of probabilities. The FTT’s decision would be set aside, and the registrar directed to reverse the alteration made in response to the FTT’s order and to reject the respondent’s application to alter the register.
(3) It was important to note that the UT had not found that that there was no mistake on the register; only that the respondent had not proved that the disputed land was omitted from his title by mistake and was included within the appellant’s title by mistake. He failed to prove that because he did not have enough information about the titles to the two properties. He did not look at historic copies of the register of title, which were available for inspection or find out when first registration of the two properties took place.
It was most unlikely that the information he provided was the limit of what could possibly be found. Proper research into the two titles might well have either provided an explanation for the state of the two titles in the form of a sale or adverse possession, or enabled him to demonstrate that two mistakes actually happened. As it was, all that he proved was that the state of the register in 2019, and presumably when he bought in 2000, was inconsistent with the state of his title in 1946 and much might have happened to change the title legitimately since then. Title to registered land depended upon registration and not on deeds, and the fact that the registered title was inconsistent with pre-registration deeds some decades old was not by itself evidence that there was a mistake on the register.
Harrison Denner (instructed by Wayne Leighton Solicitors, of Borehamwood) appeared for the appellant; Matthew Feldman (instructed by Neves Solicitors, of Luton) appeared for the respondent.
Eileen O’Grady, barrister