Abbey National Plc v Sadeghian & Anor

A registered proprietor with the legal estate is entitled to seek possession from persons with no established interest, subject to any overriding interests. A challenge based on disputed historic fraud or an allegedly defective transfer should be pursued by rectification of the register. Without a rectification application, the possession court may proceed on the basis of the registered title. Adequate notice and representation at the original hearing may defeat a complaint that the order was made in the defendant’s absence.

Abbey National sought possession of a property as its registered proprietor against Ali and Elizabeth Sadeghian. The property had previously been transferred to a relative in connection with a mortgage transaction, and was later transferred to Abbey National by consent in earlier possession proceedings. Ali Sadeghian disputed the validity of the transfers, alleged that money paid to the solicitor had discharged the mortgage, and complained that the possession order was made in his absence.

His Honour Judge Fricker QC made the possession order at Leeds County Court on 26 January 2001. A later application to re-enter the property was dismissed by District Judge Spencer. The Court of Appeal considered whether there was an arguable basis for challenging possession without an application to rectify the register.

1. Application dismissed. There was no real prospect of a successful appeal against the possession order.
2. At the time of the order, Abbey National was the registered proprietor and freeholder. It therefore held the legal estate, subject to any overriding interests, and was entitled to deal with the property and seek possession. The defendants had no established interest which displaced the registered title.
3. Ali Sadeghian’s allegations concerning the 1990 transaction involved disputed factual questions, including whether he had executed the transfer and whether he had participated in any fraud. Those questions could not be determined on this application. If his account were correct, he might have a claim for rectification under the Land Registration Act 1925, section 82. However, no application for rectification had been made. The county court judge was therefore entitled to proceed on the basis of Abbey National’s registered title.
4. The complaint that the possession order was made in Ali Sadeghian’s absence provided no sufficient ground for appeal. He had been represented by counsel and solicitors and had received three months’ notice of the relevant hearing window.
5. The order was accordingly left undisturbed. The formal order was: application dismissed.

• Court of Appeal (Civil Division): Application for permission to appeal out of time dismissed: [2001] EWCA Civ 1420.
• Leeds County Court: His Honour Judge Fricker QC ordered possession on 26 January 2001.
• Leeds County Court: District Judge Spencer dismissed an application to re-enter the property on 9 April 2001.