Baxter v Mannion

Registration of a squatter under Land Registration Act 2002, Schedule 6, paragraph 4 may be rectified if the substantive precondition of ten years’ adverse possession was not satisfied, even where the registered proprietor failed to serve a counter-notice. The statutory procedure does not convert an unqualified applicant into a person entitled to registration.

On an application for rectification, the burden lies on the applicant for rectification to prove the mistake. A mistaken direction on the burden of proof does not require remittal where it made no practical difference to the factual conclusion. Where the registered proprietor is in possession, rectification may be ordered if it would otherwise be unjust for the register not to be altered.

The appellant obtained registration of a field under Schedule 6 to the Land Registration Act 2002, following the respondent’s failure to serve a counter-notice within the statutory period. The respondent later applied for rectification, contending that the appellant had not been in adverse possession for the required ten years.

The deputy adjudicator accepted the respondent’s evidence, ordered restoration of the respondent’s title, and treated the appellant’s related right-of-way claim as falling away. The appeal concerned whether registration could constitute a mistake, the burden of proof, the factual finding on adverse possession, and the application of Schedule 4, paragraph 6(2).

1. Appeal dismissed. The registration was capable of being a mistake under Schedule 4, paragraph 5(a), if the appellant had not satisfied the substantive requirement in Schedule 6, paragraph 1(1). The registrar’s threshold assessment of whether an application should proceed did not replace the statutory requirement of actual ten years’ adverse possession.
2. The failure to serve a counter-notice did not make registration conclusive. The former proprietor could still seek rectification on the ground that the applicant had never been entitled to apply for registration. This interpretation was consistent with the statutory policy of protecting registered title and avoiding the risk of fraudulent applications.
3. The burden on the rectification application lay on the respondent to prove, on the balance of probabilities, that there was a mistake. This differed from the position on the original adverse-possession application, where the burden lay on the squatter. Although the adjudicator appeared to have misstated the burden, the error did not affect her evaluation of the evidence or the result.
4. The findings that use of the field for grazing was discontinuous, that the land was poorly maintained, that access remained possible, and that there was no indication of exclusive possession supported the conclusion that the appellant lacked both factual possession and the necessary intention to exclude the world at large.
5. The appellant had been physically in possession after registration, so Schedule 4, paragraph 6(2) applied. The adjudicator’s treatment of fraud and lack of proper care was inadequate, and such findings require clear articulation and procedural fairness. However, it was unjust for the register not to be rectified under the second limb of paragraph 6(2), because the appellant had never been entitled to registration and no countervailing factor justified allowing him to retain title.
6. The respondent was entitled to regain title. Any loss suffered by the appellant could be addressed through the indemnity provisions in Schedule 8.

The appeal lay to the High Court under section 111 of the Land Registration Act 2002 from the decision of a deputy adjudicator to HM Land Registry dated 5 February 2009. The High Court dismissed the appeal.