Purchaser of unregistered land aware of burdensome restrictive covenants – Purchaser’s application for official search made against correct name, but misdescribing property in certain respects – Purchaser receiving clear certificate – Title to burdened land subsequently registered – Whether owner of land otherwise benefiting from restriction entitled to order for rectification – Rectification ordered
In 1960 a predecessor (DM) of the defendant, the owner of certain unregistered land near Southampton, conveyed part of that land (the plaintiff’s land) together with a house, “Seven Oaks”, to a predecessor of the plaintiff. The conveyance contained covenants by DM restricting building operations on adjoining land retained by him (the defendant’s land). Shortly afterwards the purchaser’s solicitors applied to register the covenants under the Land Charges Act 1925 and did so against the name of DM, stating that the land affected was in the county of Hampshire, in the parish of Ower, or place or district of Brooks Hill, Ower, and that it was known as land adjoining “Seven Oaks”, Salisbury Road, Brooks Hill, Ower, Hants. In fact, and as stated in the conveyance, the land was situated in the parish of Eling, there being no parish by the name of Ower.
In 1965 an intending purchaser (C) of the defendant’s land caused a land charges search to be made against the name of DM, correctly stating that the land affected was land in the parish of Eling, Hants, but adding further geographic details that were not strictly correct. On October 21 1965 a clear search certificate was returned to C, who shortly thereafter took a conveyance of the defendant’s land, which recited that it was subject to the covenants given in the 1960 conveyance. On November 16 1989 the plaintiff was registered as proprietor of the plaintiff’s land. On March 11 1997 C became the registered proprietor of the defendant’s land. In September 1997 C died and the land devolved upon the defendant. In January 1998 the plaintiff took out a summons seeking an order that the registered title to the defendant’s land be rectified so as to record the existence of the covenants. The defendant contended that C had taken the land free of the covenants either because the 1960 registration had been defective or by reason of section 17(3) of the Land Charges Act 1925, which declared the search certificate to be conclusive. The plaintiff took issue on both points and further maintained that even if C had taken the land free of the covenants, the court should nevertheless order the desired rectification in exercise of the discretion conferred by section 82 of the Land Registration Act 1925.
Held The register should be rectified.
1. Both the 1960 registration and the 1965 search were effective despite the errors made in the respective applications. The register of land charges was essentially a names register and no error had been made as to the name of DM: cf Oak Co-operative Building Society v Blackburn [1968] Ch 730. As regards the description of the land, neither application had deviated from the description in the conveyance to the extent of creating a “reasonable cause for misunderstanding”: cf Du Sautoy v Symes [1967] Ch 1146. Consequently, as a result of the certificate, C had taken the land free of the covenants.
2. The rectification and indemnity provisions contained in sections 82 and 83 of the Land Registration Act 1925 made a small but necessary inroad into the general rule that entries on the register should not be disturbed: see generally Norwich and Peterborough Building Society v Steed [1993] Ch 116. Since no allegation of fraud or want of proper care had been made against the registered proprietor, the applicant had to show that it would be “unjust not to rectify the register against him”: see section 82(2)(c). Although the discretion had to be exercised sparingly, the court was satisfied that rectification should be ordered, bearing in mind that C was fully alive to the existence of the covenant and that there was no evidence that the price reflected the unencumbered value of the land. A refusal to rectify would result in an undeserved windfall for the defendant, whose proper course was to claim an indemnity against the registrar.
Andrew Francis (instructed by Blatch & Co, of Totton) appeared for the plaintiff; Timothy Harry (instructed by Bernard Chill & Axtell, of Southampton) appeared for the defendant.
Alan Cooklin, barrister
