COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
THE HON MR JUSTICE HENDERSON
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE JACOB
THE RT HON LORD JUSTICE TOMLINSON
| Steven John Baxter
|- and -
|Thomas Francis Mannion
Mr Tom Weekes (instructed by Taylor Vinters) for the Respondent
Hearing date: 25 January 2011
Crown Copyright ©
Lord Justice Jacob (giving the first judgment at the invitation of Mummery LJ):
What happened in this case
 …I can see no good reason to confine the jurisdiction of the registrar to the correction of a procedural nature. In my opinion there is a mistake in the register, which the registrar has power to correct, if any statutory condition which a prerequisite for registration, is shown not have been satisfied. ..
And, a little later in the same paragraph:
The precondition refers to a factual test (ten years adverse possession) which has to be satisfied, and upon which a squatter's right to apply for registration is predicated. The paragraph does not say that a squatter may apply for registration.
Points on this appeal
(a) Henderson J was wrong about correcting a mistake;
(b) Henderson J was wrong about the consequences of his decision concerning onus;
(c) Henderson J was wrong when he held that it would be unjust not to make the alteration.
(a) The meaning of "correcting a mistake"
10.2 (of the consultative document) If a system of registered title is to be effective, those who register their titles should be able to rely upon the fact of registration to protect their ownership except where there are compelling reasons to the contrary. All that should be required of them is to keep the Registry informed of their address for service. As we explain below, the land registration system enables registered proprietors to be protected against adverse possession in ways that would be very much harder to achieve where title is unregistered."
2.74 (of the final report) The essence of the new scheme in the Bill is that it gives a registered proprietor one chance, but only one chance, to terminate a squatter's adverse possession. In summary, a squatter will be able to apply to be registered as proprietor after 10 years' adverse possession. The registered proprietor and certain other persons (such as a chargee) who are interested in the property will be notified of the application. If any of them object, the squatter's application will be rejected, unless he or she can establish one of the very limited exceptional grounds which will entitle him or her to be registered anyway.
14.34 (of the final report). Where a notice is served by the registrar (as explained in paragraph 14.32) and no counter-notice is served on him within the time prescribed, the registrar must approve the squatter's application to be registered as proprietor of the land in place of the existing proprietor. We explain the effect of such registration below, at paragraph 14.71.
The court has power to order the alteration of the register for the purpose of correcting a mistake. The mistake may consist in a mistaken entry on the register or the mistaken omission of an entry which should have been made. Whether an entry on the register is mistaken depends on its effect at the time of registration. So the entry of an estate or interest purportedly arising under a void disposition is a mistake. The entry made on the register does not reflect the true effect of the purported disposition when the entry was made. However, the entry of a person as having acquired an estate or interest under what proves to be a voidable disposition is not a mistake. Unless it had been rescinded at the time of registration, the disposition would be valid and it would not be a mistake to enter the disponee as the proprietor of the estate or interest under it. An entry cannot retroactively become a mistake. It cannot be argued therefore that the rescission of a voidable transaction retroactively makes the entry which recorded the disposition a mistake. That would undermine the policy of the Act.
It is implicit from this, Ms Galley suggested, that all that matters for the purpose of deciding whether there was a mistake is the position at the time of registration.
10.2 We then put forward proposals for a wholly new substantive system of adverse possession that would apply only to registered land, and which is consistent with the principles of title registration. This would offer much greater security of title for a registered proprietor than exists under the present law, and would confine the acquisition of land by adverse possession to cases where it was necessary either in the interests of fairness or to ensure that land remained saleable.
As the Judge observed, "it would be very strange if a registered proprietor could be at risk of losing his land to a squatter who had never been in adverse possession."
10.61…. Rectification is confined to cases where a mistake is to be corrected. This will not include every case which is at present treated as rectification. It will not therefore cover cases where the register is altered to give effect to rights that have been acquired over the land since it was registered, or where the register was originally correct, but subsequent events have made it incorrect.
This is far from suggesting any special meaning of mistake to be corrected.
If an applicant was registered under the scheme provided by the LRA 2002 and it then transpired that he had not in fact been in adverse possession for 10 years, his registration would be a mistake, and there would, therefore, be grounds for an application for rectification of the register: see LRA 2002, Sch. 4 paras 2(1)(a), 5(a).
So the opinion of the architect of the Act is dead against Ms Galley's contentions. That clearly has considerable weight in view of Mr Harpum's deep connection with the Act and its drafting.
(b) The onus point
(c) The "unjust point"
Lord Justice Tomlinson:
Lord Justice Mummery:
Alteration of register
s.65 Schedule 4 (which makes provision about alteration of the register) has effect.
Disapplication of periods of limitation
s.96 (1) No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered.
(2) No period of limitation under section 16 of that Act (time limits in relation to redemption of land) shall run against any person in relation to such an estate in land or rentcharge.
(3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him.
Registration of adverse possessor
s.97 Schedule 6 (which makes provision about the registration of an adverse possessor of an estate in land or rentcharge) has effect.
1 In this Schedule, references to rectification, in relation to alteration of the register, are to alteration which—
(a) involves the correction of a mistake, and
(b) prejudicially affects the title of a registered proprietor.
Alteration otherwise than pursuant to a court order
5 The registrar may alter the register for the purpose of—
(a) correcting a mistake,
6 (1) This paragraph applies to the power under paragraph 5, so far as relating to rectification.
(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor's consent in relation to land in his possession unless—
(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or
(b) it would for any other reason be unjust for the alteration not to be made.
(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.
Right to apply for registration
1 (1) A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.
Notification of application
2 (1) The registrar must give notice of an application under paragraph 1 to—
(a) the proprietor of the estate to which the application relates,
(2) Notice under this paragraph shall include notice of the effect of paragraph 4.
Treatment of application
3 (1) A person given notice under paragraph 2 may require that the application to which the notice relates be dealt with under paragraph 5.
(2) The right under this paragraph is exercisable by notice to the registrar given before the end of such period as rules may provide.
4 If an application under paragraph 1 is not required to be dealt with under paragraph 5, the applicant is entitled to be entered in the register as the new proprietor of the estate.
5 (1) If an application under paragraph 1 is required to be dealt with under this paragraph, the applicant is only entitled to be registered as the new proprietor of the estate if any of the following conditions is met.
(2) The first condition is that—
(a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and
(b) the circumstances are such that the applicant ought to be registered as the proprietor.
(3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate.
(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application.
(5) In relation to an application under paragraph 1(2), this paragraph has effect as if the reference in sub-paragraph (4)(c) to the date of the application were to the day before the date of the applicant's eviction.
Right to make further application for registration
6 (1) Where a person's application under paragraph 1 is rejected, he may make a further application to be registered as the proprietor of the estate if he is in adverse possession of the estate from the date of the application until the last day of the period of two years beginning with the date of its rejection.
(2) However, a person may not make an application under this paragraph if—
(a) he is a defendant in proceedings which involve asserting a right to possession of the land,
(b) judgment for possession of the land has been given against him in the last two years, or
(c) he has been evicted from the land pursuant to a judgment for possession.
7 If a person makes an application under paragraph 6, he is entitled to be entered in the register as the new proprietor of the estate.
Restriction on applications
8 (1) No one may apply under this Schedule to be registered as the proprietor of an estate in land during, or before the end of twelve months after the end of, any period in which the existing registered proprietor is for the purposes of the Limitation (Enemies and War Prisoners) Act 1945 (8 & 9 Geo. 6 c. 16)—
(a)an enemy, or
(b)detained in enemy territory.
(2) No-one may apply under this Schedule to be registered as the proprietor of an estate in land during any period in which the existing registered proprietor is—
(a) unable because of mental disability to make decisions about issues of the kind to which such an application would give rise, or
(b) unable to communicate such decisions because of mental disability or physical impairment.
Effect of registration
9 (1) Where a person is registered as the proprietor of an estate in land in pursuance of an application under this Schedule, the title by virtue of adverse possession which he had at the time of the application is extinguished.