Common mistake requires proof of the parties’ subjective intention, not what might objectively seem to be their intention on the basis of documents and other evidence.
The Upper Tribunal (Lands Chamber) have considered this principle allowing an appeal for rectification of the land register in Khurshid v Sam-Yorke [2025] UKUT 178 (LC).
The case concerned land in Reading acquired by the appellant’s father-in-law upon which he built and subsequently sold two detached houses on adjacent plots. 11 Thornton Road was sold in 2017 and 39 Gordon Place was sold to the respondent in 2019.
The title to 39 Gordon Place comprised a number of different parcels of registered land resembling, in the tribunal’s words “a piece of pastry made by sticking the trimmings together after one has made a pie”. The TR1 had no plan attached. By mistake, when selling the property, the appellant’s solicitor had included another plot of land 44 metres away and separated from it by the length of 11 Thornton Road and a road. At all times the disputed land remained fenced with a locked gate to which the appellant held the only key.
The appellant sought rectification of the TR1 on the basis of common mistake to reflect the agreement to buy and sell only 39 Gordon Place. The respondent objected arguing that the sale was intended to include the disputed land. The First-tier Tribunal concluded there was no convincing proof of a common intention to exclude the disputed land from the sale. Rectification was refused.
Rectification is an equitable remedy in the discretion of the court or tribunal. Common mistake requires the parties to a contract or other document to share a common intention which by mistake was not reflected in the document. It is what the parties actually intended which needs to be proved not what might objectively seem to be their intention on the basis of the documents FSHC Group Holdings Ltd v Glas Trust Corporation Ltd [2019] EWCA Civ 1361.
The tribunal decided there could hardly be better evidence of the parties’ intentions to buy and sell 39 Gordon Place only, than the estate agents particulars or the memorandum of sale neither of which included the disputed land. The correspondence was typical of a perfectly ordinary domestic conveyancing transaction and bore no resemblance to the sale of a vacant plot of land with development potential. The FTT had fallen into error and wrongly disregarded the ample evidence of the parties’ intentions and their accord.
Louise Clark is a property law consultant
