Title to land – Access road – Alteration of register – Land Registration Act 2002 — Land used as access way registered in name of respondent – Appellants applying for alteration of register to remove land from respondent’s title and add it to their own – Whether access way conveyed to appellants – Whether legal presumptions as to ownership of soil of road applying – Whether exceptional circumstances justifying refusal to alter register – Appeal allowed – Application remitted to deputy adjudicator
In 2005, the respondent purchased a plot of land, comprising part of a yard together with an area of land (the disputed land) that gave access to the adjoining road. The land had been unregistered until the vendors obtained first registration of title in 2004. In 2007, the appellants applied for first registration of title to their property, a cottage that fronted onto the road. At the same time, they applied to alter the register by removing the disputed land from the respondent’s title; they claimed that that land had been conveyed to them along with their cottage in 1981 and should be included in their title on registration. The respondent served a notice of objection and the Land Registry referred the matter to the deputy adjudicator. The parties agreed for the matter to be determined on written submissions without a hearing.
The adjudicator held that the 1981 conveyance, properly construed, did not include the disputed land. He found that neither the appellants nor the vendors on the 2005 sale had ever held an unregistered title to the disputed land and that, prior to first registration, the land was owned by an unknown third party. He held that the respondent was not a proprietor in possession for the purposes of para 6(2) of Schedule 4 to the Land Registration Act 2002 but concluded that there were “exceptional circumstances”, within para 6(3), that justified a refusal to alter the registered title since, if the register were altered, the land would be left with no known owner; moreover, rectification would serve no practical purpose. He directed that the appellants’ application be cancelled accordingly. The appellants were subsequently registered with a title that comprised two areas separated by the disputed land.
On appeal from the adjudicator’s decision, the appellants contended that the 1981 conveyance did include the disputed land by virtue of a legal presumption that a conveyance of land abutting a road included the soil of the road up to the halfway point. They argued that the disputed land was a road and that, since the land on each side of it had been conveyed to them, they owned all the soil of that road.
Held: The appeal was allowed.
(1) Two relevant presumptions applied to ownership of the soil of a road. The first was that the owner of land adjoining a highway also owned the soil of half of the highway up to the middle line. The second, which applied for the purpose of construing a conveyance, was that where a conveyance of land adjoining a highway was made by a grantor who owned land on one side of it, but who could be proved, or was presumed, also to own the soil of the highway up to the halfway line, then that half of the highway soil was presumed to be included in the grant: Giles v County Building Constructors (Hertford) Ltd (1971) 22 P&CR 978 applied. Both presumptions applied in the case of a public road. There was authority for the first presumption applying also in the case of a private or occupation road: see Holmes v Bellingham (1859) 7 CBNS 329 and Smith v Howden (1863) 14 CBNS 398. The second presumption had been held to apply to an easement of way or a bridleway as well as a highway: see St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 1 WLR 1572 and Pardoe v Pennington (1996) 75 P&CR 264; [1996] PLSCS 35. Both presumptions could be rebutted, the first by acts of ownership inconsistent with the application of the presumption and the second either by internal evidence within the conveyance or by practical and common sense factors that would have been known to the parties at the time of the conveyance: Holmes, Beckett v Leeds Corporation (1872) 7 Ch App 421 and Commissioner for New Towns v JJ Gallagher Ltd [2002] EWHC 2668 (Ch); [2003] 2 P&CR 24; [2002] 01 EG 67 (CS) applied.
In the instant case, the second presumption could not apply to the 1981 conveyance since that presumption depended on the conveying party owning the disputed land. Neither the terms of the 1981 conveyance nor those of relevant earlier conveyances established that the disputed land was in the ownership of the conveying party at that time. Such ownership could not be established by applying the first presumption. There was no evidence that the disputed land had been a street or road at any relevant time and the records of the highway authority did not show it to be a highway maintainable at public expense. There was no evidence that any of the conveying parties to the various conveyances had title to the disputed land so as to be in a position to convey it. That being so, there was no room for the operation of the second presumption. Consequently, the appellants had no title to the disputed land.
(2) There was authority for the proposition that an applicant for alteration of the register did not have to have an interest in the registered land: Mann v Dingley [2011] PLSCS 106 applied. On that assumption, the appellants could apply for alteration of the respondent’s title even though they could not show that they had ever owned the disputed land. Under para 5(a) of Schedule 4 to the 2002 Act, the registrar was entitled to alter the register for the purposes of correcting a mistake. It had been a mistake to register the vendors on the 2005 sale as registered proprietors of the disputed land when they did not have title to it. An alteration of the respondent’s registered title to remove the disputed land from it would involve rectification of that title, within the meaning of para 1 of Schedule 4. Although neither parties had raised a point on the issue, it was arguable that there was jurisdiction to rectify as against someone in the respondent’s position, as a successor in title of the original mistakenly registered proprietors, on the ground that it was necessary to correct the original mistake or that the registration of the respondent flowed from, and was part and parcel of, the original mistake: Barclays Bank plc v Guy (No 2) [2010] EWCA Civ 1396; [2011] 1 WLR 681; [2010] 50 EG 312 (CS) considered.
(3) Rectification of a registered title was governed by para 6 of Schedule 4. The deputy adjudicator had been entitled to find that para 6(2) did not apply since the land was not in the respondent’s possession within the meaning of that paragraph, in the sense of him being physically in possession of it at the time of the application to rectify. Accordingly, the case fell to be dealt with under para 6(3), such that the application for rectification had to be approved unless there were exceptional circumstances that justified not making the alteration. The deputy adjudicator in the instant case had erred in his approach to para 6(3). In the absence of evidence from the parties, his consideration of the practical effect of rectification was speculation on his part. He should have begun by considering the consequences for both parties of altering or not altering the title. That required an assessment of evidence from the parties on matters such as the respondent’s development plans for the yard and whether he had believed he was acquiring an indefeasible title to the disputed land. The appropriate course was to remit the matter to the deputy adjudicator for him to determine those questions, with the benefit of a hearing, in the light of the court’s judgment and any fresh material placed before him by the parties.
The appellants appeared in person; David Taylor (instructed by Peter Peter & Wright Solicitors, of Bude) appeared for the respondent.
Sally Dobson, barrister
