The Land Registration Act 2002 confers “title by registration”. Once registered, title is guaranteed and the legislation protects third parties that acquire an interest in land in reliance on the register.
The Land Registry can alter the register to correct mistakes, but has limited powers to do so if a correction would prejudicially affect the title of a proprietor in possession. In such cases, the Land Registry must obtain the proprietor’s consent unless he fraudulently or negligently caused or substantially contributed to the mistake or it would be unjust not to make the alteration. Where the Land Registry can correct the register, it must do so, unless there are exceptional circumstances that justify leaving the register unaltered.
Paton v Todd [2012] EWHC 1248 (Ch) provides useful guidance on the impact of these rules. The case was brought by landowners whose garden consisted of two separate titles, divided by an accessway that led to a yard with development potential. The Land Registry had included the accessway in the title to the neighbouring yard on first registration, but it had become clear that no one could prove that they owned it. The landowners pressed for registration in their favour (on the basis of the statutory presumptions that apply where land fronts a road) or to have the accessway removed from their neighbour’s title. This raised several legal issues of interest.
The court ruled that the landowners had failed to make a case for registration in their favour. Was this enough to prevent them from applying to correct the register, when they had not established ownership of the land themselves? The judge held that a person applying for alteration of the register need not establish an interest in the land himself: Mann v Dingley [2011] PLSCS 106.
What of the fact that the owner of the yard had bought the land in reliance on the register? The judge decided that this would not prevent the correction of the mistake because the registration in his name was also a mistake or flowed from, and should be treated as part of, the original mistake: Barclays Bank plc v Guy (No 2) [2011] 1 WLR 681.
Were the landowners applying to re-draw the general boundaries shown on the title plan? If so, this would constitute an alteration to, as opposed to rectification of, the register, and could be effected without the proprietor’s consent. The judge found in favour of the registered proprietor on the ground that he was dealing with something more than a dispute about an accurate depiction of a general boundary.
However, the proprietor was not in physical possession of the accessway. Consequently, he would need to show exceptional circumstances that would justify a refusal to rectify the register. Depriving the land of an identified owner did not qualify as an exceptional circumstance. However, the fact that the applicants for rectification did not own the land themselves, but were seeking to de-register it, did.
The judge returned the case to the Deputy Adjudicator, with guidance – that will be required reading for practitioners making similar applications – on the questions that were relevant and the evidence required to decide whether the circumstances would justify a refusal to correct the register.
Allyson Colby is a property law consultant