Transfer of land — Common intention of parties — Parcel of land included in transfer by mistake — Whether claimant entitled to rectification of transfer and land register — Claim allowed
The claimant owned land (the James Hay land) that it wished to redevelop. It entered into an agreement under which a part of that land together with adjoining land belonging to another vendor, was to be sold to a developer. The heads of agreement contemplated that the developer would, within one year of completion, construct a road to adoptable standards into and over the James Hay land, so as to link up with a road to be built on the adjoining land. The eventual contracts and transfer to the developer included three parcels of the claimant’s land: namely the one envisaged by the heads of agreement, another required for sightlines, and a third that formed part of the site of the new roadway. Pursuant to a separate arrangement between the developer and the defendant, the developer then vested the entire acquired site in the defendant.
By 2003, the roadway had been constructed to adoptable standards and part had been adopted by the highway authority. The claimant was exploring the possibility of developing the retained James Hay land for residential use, and, in that connection, it needed to be able to offer the remainder of the roadway for adoption. At that point, the claimant realised that it was not itself in a position to offer for adoption that part of the roadway that was vested in the defendant, and that it would need the latter’s co-operation in order to do so.
The claimant sought rectification of the transfer, and consequential rectification of the land register, on the ground that the transfer had erroneously included an area of land that the parties had not intended to be transferred. The defendant resisted the claim on the ground that, whatever might have been agreed or intended by the claimant and the developer, it had never itself had the intention of acquiring anything other than what had ultimately been transferred to it. The dispute centred on the third parcel of land included in the transfer.
Held: The claim was allowed.
The claimant was entitled to have the transfer plan rectified. On the facts, it had shown that: (i) the parties had shared a common intention in respect of the amount of land to be transferred by the claimant; (ii) there had been some outward expression of accord in relation thereto; (iii) the intention had continued at the time of the transfer; and (iv) by mistake, the transfer had not reflected that common intention: Swainland Builders Ltd v Freehold Properties Ltd [2002] EWCA 560; [2002] 2 EGLR 71; [2002] 23 EG 123 applied.
Because the defendant was a proprietor in possession for the purposes of para 3 of Schedule 4 to the Land Registration Act 2002, the register could not be rectified unless the court was satisfied that it would be unjust not to so order. The court was so satisfied. The defendant was the accidental owner of a small parcel of land that it had never intended to acquire and that it had no use for, save as a means of extracting a ransom payment from the claimant. However legitimate such a stance might be commercially, it did not commend itself to the court as meritorious. It would be harsh if, having found that the claimant was entitled to rectification of the transfer, the court were to deny it rectification of the register.
Gary Cowen (instructed by Burges Salmon, of Bristol) appeared for the claimant; David Hodge QC (instructed by Blake Lapthorn Linnell, of Fareham) appeared for the defendant.
Eileen O’Grady, barrister
