Paton & Anor v Todd

A conveyance plan used for identification may assist construction, and evidence of the physical layout at the relevant date may be admitted. Highway presumptions require appropriate ownership history. The presumption of ownership supplies presumed half-width ownership where history is unknown; the conveyancing presumption requires common ownership and a grantor able to convey. A footpath on foot alone may fall outside those presumptions. Section 62 of the Law of Property Act 1925 ordinarily concerns rights rather than corporeal title. Under Schedule 4 to the Land Registration Act 2002, rectification is a duty unless exceptional circumstances justify refusal. That is a structured two-stage inquiry requiring evidence of the consequences for each party. Unsupported speculation is insufficient.

Mr and Mrs Paton appealed from a Deputy Adjudicator's decision dated 1 June 2011 refusing to alter Mr Todd's registered title to land shown as the blue land. They claimed that their 1981 conveyance of Clome Cottage included the land, relying on construction, highway presumptions and section 62 of the Law of Property Act 1925. The court also had to determine whether the requested alteration was rectification and, if so, whether exceptional circumstances justified refusing it under Schedule 4 paragraph 6(3) of the Land Registration Act 2002. The central issue was whether the existing evidence justified leaving the registered title unchanged.

The appeal was allowed. The issue whether exceptional circumstances justified refusing rectification was remitted to the same Deputy Adjudicator, together with the earlier costs decision.

1. The 1981 conveyance did not convey the blue land. The operative words, plans and physical layout showed that the land conveyed consisted of parcels on either side of an accessway, while the accessway itself was excluded. The blue land was not owned by the vendors and therefore could not pass under the conveyance.
2. The two highway presumptions were distinct. One concerned presumed ownership where the conveyancing history was unknown. The other was a canon of construction requiring common ownership and a grantor able to convey. Neither presumption applied here. A public footpath on foot alone did not have the character or purpose needed to attract them, and section 62 of the Law of Property Act 1925 could not transfer title to the corporeal soil.
3. The court proceeded on the basis that an applicant need not establish an interest in the registered land. Removing the blue land would resolve a property dispute, not merely correct a general boundary. It was therefore rectification under Schedule 4 to the Land Registration Act 2002.
4. Mr Todd was not a proprietor in possession. Physical possession required exclusive physical custody and control at the date of the rectification application. An unenclosed accessway available for, or used by, others did not satisfy that requirement.
5. Under Schedule 4 paragraph 6(3), the court had to ask separately whether exceptional circumstances existed and whether they justified refusing rectification. The fact that the Patons did not own the land could be exceptional, but the consequences of alteration or refusal had not been established by evidence. The Deputy Adjudicator had relied on speculation and an overbroad view of land-registration policy. The proper evaluation required evidence about the parties' interests, Mr Todd's belief when acquiring the title, access, development, insurance and other practical consequences.
6. Procedural fairness required Mr Todd to have an opportunity to give and have tested evidence on the critical matters. The appellate court therefore remitted the issue rather than deciding it against him on an incomplete record.

1. High Court (Chancery Division): appeal allowed and the rectification issue and costs remitted to the same Deputy Adjudicator.
2. Deputy Adjudicator to HM Land Registry: decision dated 1 June 2011. The application to alter Mr Todd's registered title was cancelled because exceptional circumstances justified refusing rectification; costs were awarded against the Patons.