Registered title Appellant disputing inclusion of strip of land — Whether appellant’s complaint to be treated as application to rectify or boundary dispute under r 284 of Land Registration Rules 1995 — Whether application against registered proprietors in possession — Rectification refused — Appeal dismissed
The respondents entered into negotiations to purchase a property, consisting of a house and garden, that adjoined a brickworks owned by the appellant. The vendors, P and M, had themselves purchased the property in 1995 from the appellant’s predecessor in title, which had owned both sites. Their title had been registered, but the attached file plan did not include a strip of land that lay in front of the house, separating it from the road. Ownership of the strip had historically been disputed by previous owners of the two sites. The respondents indicated that they were not prepared to proceed with the purchase unless their title included the strip. P and M therefore applied to the Land Registry to rectify the title to include it, and the file plan was amended accordingly. Contracts were exchanged and the respondents took up occupation of the property.
The appellant later wrote to the Registry claiming that it owned the strip. The Registry treated that letter as an application for rectification to restore the file plan to the previous version, and as an objection to the registration of the respondents’ title as it stood. Accordingly, P and M continued as registered owners for the time being. The Registry’s deputy solicitor subsequently decided to cancel the appellant’s application. Although he considered that the 1995 transfer to P and M was unambiguous and did not include the strip, and that rectification would correct an error by removing the strip from the title, he found that P and M were the registered proprietors in possession of the land. Thus, by section 82(3)(c) of the Land Registration Act 1925, he could not rectify unless he were satisfied that it would be unjust not to do so. He found that it would not be unjust, and accordingly declined to rectify.
The appellant appealed under r 300 of the Land Registration Rules 1925, contending that the deputy solicitor had erred in, inter alia: (i) treating the dispute as a substantive property dispute and not as a boundary dispute under r 284; and (ii) finding that the registered proprietors were in possession, since they had never enclosed the strip and any acts that had been carried out were insufficient to show possession.
Held: The appeal was dismissed.
The deputy solicitor had correctly proceeded on the basis that the appellant’s application was for rectification. The application had not been made under r 284; the appellant’s case had been that it sought rectification, and it was too late now for it to claim that the application should have been approached under r 284. In any event, r 284 provided for applications by the registered proprietor, a status that the appellant did not hold at the time of application.
It was clear from the authorities that a registered proprietor of land was to be regarded as being in possession of that land, by the sole fact of being the registered proprietor, unless and until it was dispossessed: Kingsalton Ltd v Thames Water Developments Ltd [2001] EWCA Civ 20; (2001) 1 P&CR 15 applied. Accordingly, it was irrelevant that P and M had never enclosed the strip or carried out acts demonstrating possession. The deputy solicitor had been correct to find that they had not been dispossessed by anything acts carried out by the respondents, whose occupation of the property was pursuant to their contract with P and M and was not adverse to P and M’s possession. At all material times, therefore, P and M had been the registered proprietors in possession. The section 82(3)(c) test therefore applied, and the deputy solicitor had been entitled to find that, in all the circumstances of the case, it would not be unjust not to rectify.
Josephine Hayes (instructed by JW Godfrey & Co, of Berkhamsted) appeared for the appellant; Philip Glen (instructed by Blatch & Co, of Southampton) appeared for the respondents.
Sally Dobson, barrister