Land registration – Alteration of register – Mistake – Schedule 4 to Land Registration Act 2002 – Applicant applying under Schedule 4 to alter register to remove area of land from respondent’s registered title and include it in his own – Land located at entrance to driveway forming sole means of access to applicant’s land – Whether evidence showing mistake in Land Registry plan – Application allowed
The applicant was the registered proprietor of a property in Girton, Cambridge, which he had purchased in 1991. The respondent owned a small parcel of land to the south east of the applicant’s property, having purchased it from the same vendor in 1995.
Access to the applicant’s property was over a driveway from the main road; however, a part of the driveway at the entrance was shown on the Land Registry plan as being included within the respondent’s title. The applicant applied, under Schedule 4 to the Land Registration Act 2002, to remove that area from the respondent’s title in order to correct a mistake, on the grounds that the plan to the registered title did not show the correct position of the driveway entrance and the disputed land in fact formed part of the applicant’s property.
The applicant argued that the mistake had probably arisen when, in 1987, the vendor had moved the driveway and created the plot now belonging to the respondent. He pointed to the fact that the transfer to the respondent was made subject to an express right of way in favour of other land which the vendor had previously sold, but no right of way in favour of the applicant’s property; he argued that, had any part of the driveway formed part of the respondent’s plot, then an express right of way would surely have been granted. He also gave evidence that, when he first purchased his property, there had been a 6ft high fence between it and the respondent’s plot, demarcating the correct boundary, although most of the fence had since blown down in a gale.
The respondent contended that the Land Registry plan correctly recorded the position. He claimed that the vendor had told him that the disputed land formed part of the plot. He maintained that any use of the disputed land by the applicant had been with the consent of the vendor and later of the respondent himself.
Held: The application was allowed.
On the evidence, no part of the driveway formed part of the respondent’s plot. The plan attached to the transfer to the applicant showed the driveway as belonging exclusively to the applicant’s property. The plans in support of the planning application to move the driveway in 1987 were consistent with it being part of, and only used for, that property.
The tribunal did not accept the respondent’s evidence that the vendor had told him that the disputed land formed part of his plot; nor that, at any point, he had given the applicant permission to use that land. That evidence was not consistent with the express right of way granted over the plot in favour of other neighbouring land or with the respondent’s evidence relating to his own purchase. The respondent’s conveyancing solicitors would surely have dealt with that issue had he told them about it. Moreover, it was hard to see why the applicant would have purchased land where part of the only access to it belonged to someone else, without an express right of way over all of it. The position of the fence, which marked the boundary of the plot, was also consistent with the applicant’s case.
The Land Registry had made a mistake when the plan for the title of the respondent’s plot was drawn up. The subdivision of the vendor’s land into various smaller plots over time might have been a causative factor. Although the disputed land was only a small part of the respondent’s plot, and an even smaller part of the applicant’s property, it did not fall within the margin of possible error arising from the fact that filed plans showed general boundaries only. This was properly a case for altering the register.
Martin Collier (instructed by Miller Sands, of Cambridge) appeared for the applicant; the respondent appeared in person.
Sally Dobson, barrister