It is rare for the courts to have to deal with a neighbour dispute with a time line dating back 800 years. However, that was the fate of the Court of Appeal in Walker v Burton [2013] EWCA Civ 1228; [2013] PLSCS 239. The case concerned applications to close the registers of title to the Lordship of the Manor of Ireby and 362 acres of moorland, known as Ireby Fell, which had formed part of the waste of the manor.
The applicants had a measure of success. The title to the Lordship was closed because the applicants were able to show that the registered proprietors, who had recently moved into the village, had purchased the title to a Lordship that had been extinguished by the seventeenth century. However, the court refused to undo the registration of Ireby Fell, which led to further litigation in Blakemores LDP (in administration) v Scott [2015] EWCA Civ 999; [2015] PLSCS 275.
The applicants had had notice of the applications for registration, but failed to object at the time, and now claimed that their solicitors had been negligent because they had failed to advise them of the consequences of not doing so. The case turned on the effect of a provision in the Land Registration Act 2002 that ought perhaps to be at the forefront of every practitioner’s mind when advising a landowner who has received notice of an application for registration that could affect him.
The 2002 Act restricts the court’s power to alter registers of title to land to correct mistakes if the correction would prejudicially affect the title of the registered proprietor in possession. In such cases, the proprietor must consent to the alteration, unless he fraudulently or negligently caused or substantially contributed to the mistake or it would be unjust not to make the alteration.
The question of protecting the registered proprietor in possession of land did not arise in the case of the Lordship of the Manor because it was an incorporeal hereditament – but was fairly and squarely before the court when it was considering the application to close the registers of title to Ireby Fell. The court noted that the registered proprietors had honestly and reasonably believed in their ownership and exercised its discretion to allow the registration to stand.
This then was the nub of the applicants’ case. They complained that their solicitor’s negligence had turned a clear right to have the Ireby Fell title closed into a matter for the discretion of the court and that their solicitor should have advised them that, unless they objected to the application for registration before the deadline to do so expired, it would be much more difficult to undo the registration due to the rules that protect proprietors in possession.
The court was dealing with a preliminary issue and the litigation has yet to reach its conclusion. Meanwhile, practitioners need to be alive to the point raised in this case, but may also wish to remind potential objectors that section 77 of the 2002 Act requires them to act reasonably or run the risk of being liable in damages.
Allyson Colby, property law consultant