Adverse possession — Mistake – Appellant obtaining transfer of title to land on ground of adverse possession – Respondent successfully applying for rectification of register on basis of mistake — Whether judge erring in holding that land registrar having jurisdiction to correct mistakes other than procedural errors — Appeal dismissed
In 1996, the respondent purchased a field and a small area of the adjoining land for development and was registered as the proprietor. In 2005, the appellant applied to the local land registry to register the field in his name, claiming adverse possession pursuant to Schedule 6 to the Land Registration Act 2002. Notice of the application was served on the respondent, as the original owner. He failed to reply and the field was registered in the appellant’s name.
The respondent applied to the deputy adjudicator, under para 5(a) of Schedule 4 to the 2002 Act, to rectify the title and to re-register him as the owner of the field on the basis that the appellant’s registration had been a “mistake” because he had not been in adverse possession of the field for the requisite 10-year period. Under para 6 of Schedule 4, no alteration affecting the title of a proprietor could be made without consent unless he had contributed to the mistake by fraud or lack of proper care.
The adjudicator heard oral evidence from witnesses and visited the site. She concluded that the appellant had not fulfilled the criteria for adverse possession so that para 6 did not apply, thus allowing the title to be altered without the appellant’s consent. The appellant appealed under section 111 of the 2002 Act, arguing that para 5(a) was directed only to mistakes of a procedural nature.
Henderson J held that the adjudicator had erred in saying that both limbs of para 6(2) had been satisfied. In particular, a finding regarding limb (a) (fraud or lack of proper care) required a clear pleading and proper investigation, which had not happened. He therefore reassessed the position under limb (b), concluding that it would be unjust if the alteration were not made: [2010] EWHC 573 (Ch); [2010] PLSCS 86. The appellant appealed.
Held: The appeal was dismissed.
(1) Paragraph 1(1) of Schedule 6(1) provided that a party might apply to the registrar to be registered if it had been in adverse possession of an estate. Parliament could not have intended that a party that had not been in adverse possession would be entitled to obtain registered title. A registration obtained by a party that was not entitled to apply for it would be a mistake. Returning the register back to the condition it was in prior to the application would be correction of a mistake within the meaning of paras (1) and (5) of Schedule 4 and there was no reason for limiting such a correction to a mistake arising from an official error in the course of examining the application, as the appellant had contended.
Further, the proposed construction would invite fraud. A dishonest applicant, perhaps knowing that the registered proprietor would be unable to submit a NAP form in time could falsely claim that it had been in adverse possession for 10 years. The fact that there was no possibility of extending the prescribed time meant that parliament either intended that the rectification power could cover such a case or that the true owner could lose its land for want of a form sent in time, which was wholly improbable.
It was impossible to draw a rational distinction between a mistake induced by fraud and one arising from a wrong application. The reason for the mistake, namely that the registrar had received false information, was the same in both cases. It would be strange if a registered proprietor could be at risk of losing its land to a squatter that had never been in adverse possession.
(2) It was common ground that the adjudicator had by implication misdirected herself on the burden of proof. The judge considered whether the error invalidated the adjudicator’s and held that the decision on the facts did not turn on the onus and correctly concluded that there should be no remission.
The legal onus of proof lay on the respondent. His evidence showed that the appellant’s claim to have been in exclusive possession for 10 years or more was wrong; the appellant was unable to prove otherwise. Moreover, the adjudicator’s holdings did not arise from any question of onus of proof; they resulted from her seeing and hearing key witnesses and evaluating the effect of that and the written evidence that she had accepted without challenge.
(3) It was common ground that the adjudicator had overlooked the fact that the appellant had, by the time of the application, assumed possession of the land. Thus, para 6(2) of Schedule 4(6)(2) applied. Putting aside subpara (a), the judge considered whether it would be unjust not to re-register the respondent as title holder and concluded that it would be, as a matter of simple justice. The appellant had made an unjustified attempt to obtain title and unless the register was altered the respondent would lose his property. The only factor to suggest that it would be unjust to do so was that the respondent had failed to return the NAP form. However, mere failure to operate bureaucratic machinery was nothing as against the respondent losing his land and the appellant obtaining it when he had not been in adverse possession.
Helen Galley (instructed by MA Law LLP) appeared for the appellant; Thomas Weekes (instructed by Taylor Vinters, of Cambridge) appeared for the respondent.
Eileen O’Grady, barrister
