Diep v Land Registry

Under the Land Registration Act 2002, the registrar may adopt a cautious policy when an application for absolute title rests on adverse possession and the paper owner or the nature of competing interests has not been established.

Possessory title is appropriate where the statutory conditions for absolute title are not satisfied. The registrar may take account of possible undisclosed interests, including leasehold reversions, disabilities and interests in remainder, and of the statutory indemnity scheme. A decision applying that policy will not be unlawful or irrational merely because the possible competing claims are unlikely.

The claimant, the registered proprietor of adjoining premises, applied to register land occupied by him and his predecessors for more than 12 years. The Land Registry was willing to register possessory title but refused absolute title because the paper owner had not been identified and possible competing interests could not be excluded.

The registrar’s decision was reviewed and upheld on different reasoning. The claimant brought judicial review proceedings, challenging the decision and the Land Registry’s published policy. The central issue was whether the registrar had acted unlawfully or irrationally in applying that policy.

1. Claim dismissed. The registrar’s decision to register possessory title only was lawful and rational.
2. Under section 9 of the Land Registration Act 2002, absolute title is available where the registrar considers that the applicant’s title is such as a willing buyer could properly be advised to accept. Possessory title is available where the applicant is in actual possession and no other class of title is available.
3. The Land Registry’s policy that absolute title will generally be granted in adverse-possession cases only where the paper title is known and the owner has consented or could have no valid grounds for objection was a lawful application of the statutory scheme. The policy did not make consent an inflexible legal requirement.
4. The statutory provisions, including the effects of possessory and absolute registration and the power to upgrade title after 12 years’ possession, supported a cautious approach. Schedules 4 and 8 provided for compensation where registration displaced an interest through mistake. The Act therefore balanced the commercial value of secure, marketable title against the risk of claims on public funds.
5. The registrar was entitled to take an ultra-cautious view. Possible claims by a leasehold reversioner, a person under a disability, a remainderman or the Crown were unlikely but not wholly fanciful. The claimant had also failed to establish sufficiently who might have a paper claim to the land.
6. The claimant was ordered to pay the respondent’s costs, summarily assessed at £9,900. Excessive time claimed for document work was disallowed, and correspondence concerning a possible settlement was disregarded.

The registrar was willing to register possessory title but not absolute title. The decision was reviewed and upheld for different reasons. Permission for judicial review was initially refused on the papers but was later granted by Dobbs J. The High Court (Administrative Court) dismissed the claim.