Baxter v Mannion

Under Land Registration Act 2002, Schedule 6, an applicant may seek registration through adverse possession only if the factual requirement of ten years’ adverse possession is met. Registration obtained without that prerequisite is a mistake in the register. It may be rectified under Schedule 4 even where the registered proprietor did not return the Land Registry counter-notice in time.

The statutory notice procedure promotes certainty in ordinary cases. It does not enable a person who was never in adverse possession to acquire another’s land merely because the true owner failed to operate the procedure. Where the applicant is in possession, failure to alter the register is unjust if it would otherwise deprive the original proprietor of the land on that basis.

Mr Baxter applied to be registered as proprietor of a field owned by Mr Mannion. He asserted that he had possessed it adversely for ten years. The Land Registry notified Mr Mannion, but he did not return the required form by the deadline. Mr Baxter was consequently registered as proprietor.

Mr Mannion then sought rectification of the register. A deputy Adjudicator found that Mr Baxter had not established exclusive possession or the necessary intention to exclude others, and ordered rectification. Henderson J upheld that decision: [2010] EWHC 573 (Ch).

On Mr Baxter’s second appeal, the central issues were whether registration following an unopposed application could be a correctable mistake, whether any error as to the burden of proof mattered, and whether it was unjust not to alter the register.

1. Appeal dismissed. Jacob LJ gave the judgment, with which Tomlinson LJ and Mummery LJ agreed.

2. Schedule 6 paragraph 1(1) of the Land Registration Act 2002 makes ten years’ adverse possession a factual prerequisite to an application for registration. A person who has not in fact been in adverse possession is not entitled to apply. Registration of that person is therefore a mistake, and restoration of the former proprietor is rectification under Schedule 4 paragraphs 1 and 5(a).

3. The power to correct a mistake is not confined to an official or procedural error in examining the application. Treating an unchallenged application as immune from rectification would permit a dishonest or mistaken applicant to obtain land despite lacking the statutory prerequisite. The absence of any power to extend the counter-notice period reinforced, rather than displaced, the availability of rectification. The ordinary notice procedure still provides certainty where a genuine adverse possessor applies.

4. The legal burden lay on Mr Mannion. His prima facie evidence that Mr Baxter had not enjoyed exclusive possession shifted the evidential burden to Mr Baxter. The Adjudicator’s findings rested on her assessment of the witnesses and were not affected by the earlier misdirection concerning the burden of proof.

5. Mr Baxter was in possession when rectification was sought, so Schedule 4 paragraph 6(2) applied. It was nevertheless unjust, within paragraph 6(2)(b), not to alter the register. Mr Baxter had never established adverse possession, while Mr Mannion would otherwise lose his field. Mr Mannion’s failure to return the form in time did not make that result unjust.

• Court of Appeal (Civil Division) — dismissed Mr Baxter’s second appeal: [2011] EWCA Civ 120.
• Chancery Division — Henderson J upheld the deputy Adjudicator’s order for rectification and rejected Mr Baxter’s appeal: [2010] EWHC 573 (Ch).
• Land Registry adjudication — the deputy Adjudicator found that Mr Baxter had not established adverse possession and ordered rectification in favour of Mr Mannion.