N Allee & Co v Hodson

Rectification requires proof that the written instrument contains a common mistake in expression and does not reflect the parties’ true agreement. Although the standard remains the balance of probabilities, the evidence must be sufficiently strong to overcome the inherent probability that a signed conveyance and its plan record the parties’ intention. A person’s occupation of land is not adverse where it takes place under the owner’s permission or licence. On the facts, the conveyance accurately retained the disputed land for the claimant, and the defendants’ use of it was permissive. The claim to rectification therefore failed, as did the claim based on adverse possession.

The claimant appealed from an order of the Oxford County Court, made by Recorder Marshall-Andrews QC on 23 February 2001. The recorder declared that the claimant was the freehold owner of land behind nos. 9 and 11 Ock Street, Abingdon. The defendants, solicitors who had acquired no. 7 Ock Street under a 1978 conveyance, sought declarations that they owned most of the disputed land and consequential rectification of the conveyance and Land Register.

The defendants argued that the disputed land had been mistakenly excluded from the conveyance and that they had acquired title by adverse possession. The central issues were whether the conveyance failed to express a common intention and whether their use of the land had been adverse rather than permissive.

1. Appeal dismissed with costs. The claimant remained the owner of the disputed land.
2. Rectification corrects a mistake in the expression of an agreed transaction, not a mistake in the transaction itself. The general rule is that the mistake must be common to all parties. The party seeking rectification must prove the case on the balance of probabilities, but the evidence must be strong enough to counter the probability that a signed written instrument records the parties’ intention.
3. The conveyance defined the land sold by reference to an attached plan. The plan expressly marked the disputed land as land retained by the claimant and had been signed by three of the four defendant partners. The surrounding evidence, including the claimant’s need to retain land for possible loading and unloading, supported the conclusion that the conveyance reflected the parties’ true intention. Mr Hodson’s evidence did not establish any contrary agreement or common intention. Rectification of either the conveyance or the register was therefore unavailable.
4. The defendants’ use of the disputed land did not amount to adverse possession. The recorder was entitled to find that the land had been cultivated and used with the claimant’s consent, amounting to a bare licence. Under Part 1 of Schedule 1, paragraph 8(4) of the Limitation Act 1980, occupation is not to be treated as permissive merely because it is not inconsistent with the owner’s enjoyment, but an implied permission may be found where justified by the actual facts. The finding of permission was justified here.
5. Since the occupation was permissive, the adverse possession claim failed. It was unnecessary to decide whether the defendants also had the necessary intention to possess. The court also accepted that a right of way could include a right to load and unload, although the relevant 12-foot strip would not have provided the same space as the disputed land.

• Court of Appeal (Civil Division) — [2001] EWCA Civ 951: appeal dismissed with costs.
• Oxford County Court — Recorder Marshall-Andrews QC, order dated 23 February 2001: declaration that the claimant was the freehold owner of the disputed land.