Land register – Claimant registering possessory title – Defendant council objecting to registration – Defendants applying to rectify register – Whether defendants having standing to seek alteration of register – Appeal allowed
The claimant, following his application under section 3(2) of the Land Registration Act 2002, was registered with possessory title as the first registered proprietor of land described as forming part of a foreshore. The land had been designated as a site of special scientific interest and the claimant managed it under the supervision of English Nature. By virtue of section 11(7) of the 2002 Act, registration with possessory title had the same effect as registration with absolute title, except that it did not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietor’s titles subsisting at the time of registration or then capable of arising.
The defendants wrote to the land registrar, stating that they wanted rectification or closure of part of the title on the basis that the claimant had not, as he claimed, established the title by adverse possession. The matter was referred to an adjudicator who ordered a preliminary issue to be determined as to whether the defendants’ application should be cancelled because they had not asserted that they had any estate, right or interest adverse to, or in derogation of, the claimant’s title at the time of registration or then capable of arising; nor could they show that their application had been made in exercise of a statutory power or function.
The adjudicator accepted the defendants’ argument that, since no express textual restriction in the 2002 Act limited the category of parties that could apply for alteration of the register, no such restriction was to be implied. He therefore refused to cancel the application for alteration of the register.
On the claimant’s appeal, the question arose for the High Court as to whether the defendants’ application to alter the register was a matter of private or public law.
Held: The appeal was allowed.
The claimant’s original application to be registered as proprietor of a parcel of land raised questions of private law only. The effect of the closure of the title would be to remove from the claimant a freehold estate that was vested in him by virtue of the 2002 Act, which was a question of private rights. The effect of registration under the 2002 Act was to record, confer and delimit those rights. The application in the present case raised a question of private law rights only. The fact that those rights were recorded in a public register did not change their fundamental nature: Wilson v Keeper of the Registers of Scotland 1999 SCLR 872 considered.
The common law required an applicant to have standing and the adjudicator had the power, under r 24 of the Adjudicator to Her Majesty’s Land Registry Practice and Procedure Rules 2003, which he or she should exercise, to strike out an application made by a party that did not have standing. Since the defendants had no standing at common law, the adjudicator ought to exercise his power under r. 24 and remove them as a party from the objection.
Matthew Hutchings (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the claimant; William Goldstein (instructed by Thurnhills Solicitors, of Preston) appeared for the defendants.
Eileen O’Grady, barrister