Bennett & Anor v Lewis & Anor

For land-registration purposes, actual occupation bears its ordinary meaning. Physical acts such as edging, turfing, cultivating and constructing upon land may establish actual occupation, even where another person later enters the land or leaves a vehicle on it. Where actual occupation gives rise to an overriding interest under section 70(1)(g) of the Land Registration Act 1925, and the registered title includes land belonging to the claimant, rectification follows in the circumstances considered. An appellate challenge to factual interpretation of an unscaled plan requires a real prospect of demonstrating error; a legitimate interpretation supported by the plan will not readily be disturbed.

The claimants, Mr and Mrs Bennett, sought rectification of their registered title to include a disputed strip of land adjoining Unit 4 at Gorse Farm. The defendants, Mr and Mrs Lewis, were registered proprietors of land that included the strip. His Honour Judge Boggis QC, sitting in the Chancery Division, ordered rectification in the claimants’ favour on 30 July 2001.

The defendants applied for permission to appeal and a stay. They challenged the judge’s interpretation of an unscaled transfer plan and his conclusion that the claimants had been in actual occupation of the strip, giving rise to an overriding interest. They also challenged the rectification order.

1. Permission and disposition. The application for permission to appeal was refused. There was no real prospect of successfully challenging either the boundary finding or the rectification decision.
2. Interpretation of the transfer plan. The judge had recognised that the first transfer plan was not accurately to scale. Nevertheless, it was legitimate to conclude from the face of the plan that Unit 4 extended beyond the low brick wall into the amenity land. The inaccurate plotting of neighbouring buildings did not undermine that conclusion.
3. Actual occupation. Actual occupation under section 70(1)(g) of the Land Registration Act 1925 bears its ordinary meaning. The claimants’ acts of edging and turfing the land, cultivating part of it, and building a mock well were sufficient to establish actual occupation. The defendants’ later placement of an unroadworthy vehicle on the strip, and the claimants’ failure to remove it, did not negate that conclusion.
4. Overriding interest and rectification. On the facts found, the claimants had an overriding interest. The court considered it material that the defendants knew the claimants claimed the strip as their own. Once that overriding interest was established, the registers required rectification so as to reflect the claimants’ title.

The order was: application refused.

• Court of Appeal (Civil Division): On 6 December 2001, permission to appeal against the order of His Honour Judge Boggis QC dated 30 July 2001 was refused.
• Chancery Division: Ordered rectification of the parties’ registered titles to include the disputed seven-foot strip in the claimants’ title and exclude it from the defendants’ title.