Land – Adverse possession — Mistake – Appellant obtaining transfer of title to land on ground of adverse possession – First registered proprietor successfully applying for rectification of register on basis of mistake — Whether land registrar having jurisdiction to correct anything other than procedural mistakes — Appeal dismissed
In 1996, the respondent purchased the appeal site (the field) and a small section of adjoining land at its south-west corner and was duly registered as the proprietor. When the respondent bought the field, it was in a neglected state. However, he had had no immediate use for the land, which he had bought for its development potential.
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, which together with sections 96 to 98 had introduced a new adverse possession regime for registered land. Notice of the application was served on the respondent, as the original owner. The respondent failed to reply and, on the evidence before the registrar, the field was registered in the appellant’s.
The respondent applied to the deputy adjudicator, under para 5(a) of Schedule 4 to the 2002 Act, to rectify the registered title and to re-register him as the owner of the field on the basis that the appellant’s registration as proprietor had been a “mistake” because he had not been in adverse possession of the field for the required 10-year period. Under para 6 of Schedule 4, no alteration affecting the title of a proprietor could be made without the proprietor’s consent unless he or she had contributed to the mistake by way of fraud or lack of proper care.
The adjudicator heard oral evidence from witnesses and visited the site. She said that the question was whether the appellant could prove that he had been in adverse possession of the field for the requisite period. She rejected his argument that of a procedural irregularity because he had served the required notice and the registrar had been satisfied that he was entitled to adverse possession. She concluded, inter alia, that the appellant had not fulfilled the criteria for adverse possession and para 6 of Schedule 4 did not therefore apply, thus allowing the title to be altered without the appellant’s consent.
The appellant appealed under section 111 of the 2002 Act, arguing, inter alia, that para 5(a) of Schedule 4 was directed only to mistakes of a procedural nature.
Held: The appeal was dismissed.
The adjudicator’s conclusion that the appellant had not been in possession of the field during the relevant period could not be faulted. She was obliged to review and evaluate all the evidence before her and she had not failed to discharge that duty, having had the advantage of a site visit and of hearing evidence from witnesses.
The jurisdiction of the registrar under para 5(a) should not be confined to the correction of procedural mistakes. The precondition in para 1(1) of Schedule 6 to the 2002 Act referred to a factual test (that is, 10 years’ adverse possession) that had to be satisfied, and on which a squatter’s right to apply for registration was predicated. The paragraph did not state that a squatter might apply for registration if he could produce prima facie evidence of adverse possession during the 10-year period, or if he could persuade the registrar that his claim was likely to succeed. Those might be appropriate threshold tests for determining whether the application should be allowed to proceed, but a procedural filter of that nature should not be confused with the substantive test, which was clear and unqualified.
It followed that the procedure set out in paras 2 to 5 of Schedule 6 was not necessarily conclusive of the appellant’s entitlement to be registered. Although an applicant would automatically be registered under para 4 if no counternotice was served requiring the application to be dealt with under para 5, the former proprietor could still argue that the registration was a mistake on the ground that the applicant had not satisfied the test of 10 years’ adverse possession.
The policy of the 2002 Act limited the circumstances in which a squatter could acquire title to registered land and offerred greater security of title for a registered proprietor. In the light of that policy, it would be strange if a registered proprietor could, for the first time, be at risk of losing its land to a squatter that had not been in adverse possession. It would also be a disproportionate penalty for failing to serve a counternotice.
The appellant’s interpretation of the 2002 Act would be an invitation for fraud. It would potentially reward a dishonest applicant that succeeded in persuading the registrar that it had been in adverse possession by lying about its use of the land. Once a registrar had been persuaded to allow the application to proceed, the applicant would be entitled to registration if, for whatever reason, the registered proprietor did not serve a counternotice.
If a para 4 registration of a squatter that could not satisfy the adverse possession test did not involve a rectifiable mistake, the former proprietor would be precluded from claiming an indemnity for its loss, pursuant to section 103of and Schedule 8 to the 2002 Act. So far as material, the circumstances set out in para 1(1) of Schedule 8 in which a party was entitled to claim an indemnity would depend on a mistake having been made. In the absence of a mistake, no right to an indemnity could arise. Such an interpretation of the 2002 Act would fail to strike a fair balance between the demands of the general interest of the community and the requirement to protect the former owner’s fundamental rights, and so would breach Article 1 of the First Protocol of the European Convention on Human Rights: see JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2008] 1 EGLR 111, in [53].
Accordingly, section 3 of the Human Rights Act 1998 would require the court, if possible, to adopt an interpretation of the 2002 Act that enabled the register to be rectified in such circumstances. That could be achieved by construing the concept of “mistake” in para 5(a) so as to include a case where the adverse possession test in para 1(1) of Schedule 6 had not been satisfied, but the applicant had nevertheless been registered under para 4.
Alan Steinfeld QC and Helen Galley (instructed by MA Law LLP) appeared for the appellant; Tom Weekes (instructed by Taylor Vinters, of Cambridge) appeared for the respondent.
Eileen O’Grady, barrister