It is rare for the courts to have to deal with a neighbour dispute with a time line dating back 800 years. However, this was the fate of the Court of Appeal in Walker v Burton [2013] EWCA Civ 1228; [2013] PLSCS 239.
The case concerned the title to 362 acres of moorland. The land was registered in the name of a couple who purchased a 17th century manor house at the edge of the village of Ireby. They also acquired, and were registered with, the title to, the Lordship of the Manor. The moorland formed part of the waste of the manor. “Waste” in this context refers, in general, to manorial lands that were less fertile and were therefore usually left open, uncultivated, and unoccupied. The Burtons claimed that the moorland was also theirs, because it was the waste of their manor and, in due course, were registered as the proprietors by the Land Registry.
The villagers had rights of common over the land, which had been protected by registration for over 30 years. However, they were convinced that the Burtons had “a phony title resurrected by a 19th century usurper” and were unhappy that they had erected gates and were controlling the use of the moorland, as well as objecting to cars being parked on grass verges in the village. As a result, they spent a great deal of time, effort and money proving that title to the Lordship had reverted to the Crown in the 17th century and that its registration in the name of the Burtons had been a mistake.
Their next step was to claim that the registers of title to the Lordship and the moorland should both be closed. However, they were successful only in relation to the Lordship. The court agreed that this might seem odd, but explained that the Land Registration Act 2002 differentiates between land and Lordships of the Manor, which are classed as incorporeal heriditaments. The Land Registry has limited powers to alter the registers of title to land to correct mistakes if a correction would prejudicially affect the title of a registered proprietor in possession. In such cases, the Land Registry must obtain the proprietor’s consent, unless he fraudulently or negligently caused or substantially contributed to the mistake or it would be unjust not to make the alteration.
The Burtons were proprietors in possession and had honestly and reasonably believed in their ownership. The villagers did not have, or claim to have, title to the moorland. This was not an obstacle to their application because a person applying to alter the register need not establish an interest in the land himself. However, the court believed that it was preferable that the land should be registered to someone, rather than being left in limbo. The Burtons had invested in and managed the moorland, and had discouraged harmful practices, such as tipping and the use of motorised vehicles. In the circumstances, it would not be unjust to allow the registration to stand.
It is interesting to contrast the decision with Paton v Todd [2012] EWHC 1248 (Ch); [2012] PLSCS 104, where the court refused to allow someone who was not the true owner to retain title to land. Crucially, in that case, however, the registered proprietor was not a proprietor in possession, so different rules applied.
Allyson Colby is a property law consultant