Land Register — Rectification — Respondent registered as owner of land — Whether appellants entitled to rectification — Whether necessary to show actual occupation — Section 82(1)(a) and (3) of Land Registration Act 1925 — Appeal allowed
The first appellant, S, acquired a farm by a conveyance dated September 1982. The conveyance, which was in similar terms to an earlier one in 1968, contained a verbal description of the land conveyed and a plan that was stated to be for identification purposes only. The plan excluded an area of land in the shape of an axe-head, which S none the less used for his farming business. The respondent acquired an adjoining parcel of land in 1998. She mistakenly believed that the sale to her included the axe-head. When she first registered her title, the plan did not include the axe-head, but she later applied successfully to the Land Registry to extend her registration to cover it.
In subsequent proceedings brought by the respondent over a right of way, an issue arose as to the ownership of the axe-head. S sought rectification of the Land Register, pursuant to the court’s discretion under section 82(1)(a) of the Land Registration Act 1925. The judge found that the respondent had not acquired the axe-head by the 1998 conveyance, but only upon the extension of her title upon application to the Land Registry. However, he considered that as the respondent was a proprietor in possession, the court was required to apply section 82(3). That subsection provided that rectification should not be ordered against a proprietor in possession, save for the purpose of giving effect to an overriding interest or an order of the court, unless the proprietor had substantially caused or contributed to the error by fraud or lack of proper care, or it would otherwise be unjust not to rectify. The judge found that S did not have an overriding interest due to his lack of actual occupation at the date of the 1998 conveyance, and he held that it would not be unjust to refuse rectification. Accordingly, he rejected S’s rectification claim. S appealed.
Held: The appeal was allowed.
1. The verbal description of the land in the 1968 conveyance, when compared with that in an earlier conveyance, indicated that the axe-head must have been conveyed. The verbal description prevailed over the plan, given that the plan was stated to be for identification purposes only: Wiggington & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 and Scott v Martin [1987] 1 WLR 841 applied. When combined with the absurdity of the former owner of the farm wanting to sell the land but retain a landlocked part of it to which he would have no right of access, it followed that the axe-head was conveyed by the 1968 conveyance, and, therefore, also by the 1982 conveyance. As a result, S had had the paper title to the axe-head since 1982, even though it was not in his registered title.
2. The court was not obliged to apply section 82(3) when considering whether to exercise its discretion to rectify under section 82(1)(a). This was because of the words of exception in section 82(3), namely “except for the purpose of giving effect to… an order of the court”. However, in exercising its discretion, the court should have regard to the policy of the Act in section 82(3) and give particular weight to the fact that the registered proprietor was in possession. It was also important to consider whether the registered proprietor had been at fault in any relevant respect: Kingsalton Ltd v Thames Water Developments Ltd [2001] EWCA Civ 20; [2002] 1 P&CR 15 applied. Despite the significance of the policy in the 1925 Act favouring registered proprietors in possession, in the particular circumstances of the case the balance weighed in favour of ordering rectification.
Nigel Thomas (instructed by Aaron & Partners, of Chester) appeared for the appellants; David Porter (instructed by Fieldings Porter, of Bolton) appeared for the respondent.
Sally Dobson, barrister
