Innocent buyer from fraudster registered as proprietor – Whether committing trespass against person previously shown as proprietor
Barely days before the new-broom Land Registration Act 2002 came onto the statute book (26 February 2002), the Court of Appeal was called upon to explore the innermost workings of the Land Registration Act 1925 – which will continue to affect many cases long after the new Act is brought into force.
Reducing Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] 10 EG 155 (CS) to a model, imagine that you are the registered proprietor of a property that, for the present, you are leaving well alone. You wake up to learn that possession has been taken by Strangeface Ltd, which, when challenged, produces a land certificate showing that it was registered as proprietor following a recent purchase. Investigation reveals that both Strangeface and the Land Registry were duped by a fraudster, who had, as it were, stolen your name for the purpose of flogging the property.
In response to your allegation of trespass, Strangeface claims that it had, at all times, the stronger right to possession. The case for Strangeface rests primarily upon sections 20 and 69 of the 1925 Act, which, dealing respectively with the effect of a disposition and the effect of registration, declare that the grantee/ proprietor takes the legal estate subject only to certain specific exceptions.
Applying Malory, the case for Strangeface would be rejected for the reasons stated in our summary. Whether those reasons are sound is another story. The defendant, Cheshire Homes, has petitioned for leave to appeal to the House of Lords. The betting in this corner of the web is that leave will be forthcoming.
Because of the trespass decision, the court did not pronounce conclusively upon whether a right to apply, under section 82 of the Act, for an order rectifying the register could be asserted as an overriding interest. The prevailing view was that it could; but see the related issues considered in
For the same reason, the case yields little authority on whether such an order would operate retrospectively to the date upon which the wrongful occupation was taken.
Innocent buyer from fraudster registered as proprietor – Whether committing trespass against person previously shown as proprietor
Barely days before the new-broom Land Registration Act 2002 came onto the statute book (26 February 2002), the Court of Appeal was called upon to explore the innermost workings of the Land Registration Act 1925 – which will continue to affect many cases long after the new Act is brought into force.
Reducing Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] 10 EG 155 (CS) to a model, imagine that you are the registered proprietor of a property that, for the present, you are leaving well alone. You wake up to learn that possession has been taken by Strangeface Ltd, which, when challenged, produces a land certificate showing that it was registered as proprietor following a recent purchase. Investigation reveals that both Strangeface and the Land Registry were duped by a fraudster, who had, as it were, stolen your name for the purpose of flogging the property.
In response to your allegation of trespass, Strangeface claims that it had, at all times, the stronger right to possession. The case for Strangeface rests primarily upon sections 20 and 69 of the 1925 Act, which, dealing respectively with the effect of a disposition and the effect of registration, declare that the grantee/ proprietor takes the legal estate subject only to certain specific exceptions.
Applying Malory, the case for Strangeface would be rejected for the reasons stated in our summary. Whether those reasons are sound is another story. The defendant, Cheshire Homes, has petitioned for leave to appeal to the House of Lords. The betting in this corner of the web is that leave will be forthcoming.
Because of the trespass decision, the court did not pronounce conclusively upon whether a right to apply, under section 82 of the Act, for an order rectifying the register could be asserted as an overriding interest. The prevailing view was that it could; but see the related issues considered in PP 2002/79.
For the same reason, the case yields little authority on whether such an order would operate retrospectively to the date upon which the wrongful occupation was taken.
