Walker & Ors v Burton & Anor

Under Schedule 4 to the Land Registration Act 2002, a mistake in registration does not, by itself, justify rectification. Where the registered proprietor is in possession, the statutory conditions must be satisfied.

Physical possession of open moorland requires an appropriate degree of control assessed objectively by reference to the nature and use of the land. Lack of proper care must have caused or substantially contributed to the mistake. The ordinary competent solicitor undertaking work of the relevant kind provides the standard of care.

In deciding whether it would be unjust to leave the register unaltered, the court must consider the interests of any person or body deprived by the registration, together with expenditure, reliance, delay and the practical consequences of alteration.

The appeal concerned the registration of Ireby Fell and the lordship or manor of Ireby. The respondents had been registered as proprietors of both titles. The deputy adjudicator ordered closure of the Lordship Title but refused to close the Fell Title.

The appellants challenged the refusal on three grounds: possession, lack of proper care and injustice. They also argued that, absent the respondents’ registration, the Fell was vested in the Crown or the Duchy of Lancaster. The respondents accepted that their title to the Fell depended on the Lordship Title and that, but for registration, the Fell would have been Crown or Duchy property.

The central questions were whether the respondents were in possession, whether their conduct substantially contributed to the mistaken registration, and whether it would be unjust not to alter the register.

1. Appeal dismissed. The respondents remained registered proprietors of the Fell. The description in the Proprietorship Register stating that they were Lord of the Manor of Ireby was to be removed.
2. For the purposes of paragraph 6(2) of Schedule 4 to the Land Registration Act 2002, possession required an appropriate degree of physical control. The assessment was objective and depended on the nature and situation of the land and the manner in which land of that kind was commonly used. Open moorland required a lower degree of control than actively farmed or urban land. The respondents’ licences, management of grazing and shooting, sign and personal use established possession by May 2007.
3. The appellants bore the burden of proving that lack of proper care caused or substantially contributed to the mistaken registration. The relevant standard was that of the ordinary competent solicitor undertaking work of the kind concerned. The statutory threshold was substantial contribution; it was not enough that conduct was merely part of the historical causal chain.
4. The respondents and their solicitors had submitted the documents in their possession and had made clear that they could not certify investigation of title in the usual way on a transaction for value. They had not misled the Land Registry. It was reasonable, in the circumstances, to regard the Stinting Agreement as compelling evidence and there was no duty to undertake the exhaustive historical investigation later conducted in the litigation. Lack of proper care was not established.
5. The Crown or Duchy interest was material. The deputy adjudicator had not given sufficient regard to the fact that, but for registration, the Fell would have remained vested in the Crown or Duchy. Nevertheless, after reviewing the matter afresh, the court held that the appellants had not shown that it would be unjust to leave the register unaltered. The Crown and Duchy had not intervened or sought restoration, while the respondents had managed the Fell, incurred expenditure and entered agreements concerning its use.
6. The court distinguished Baxter v Mannion: this was not a case where a dispossessed rightful owner opposed retention of land obtained through a false adverse-possession claim. The mere fact of mistake and consequent deprivation of a Crown or Duchy interest did not, without more, require rectification.
7. Future cases in which registration may affect a Crown or similar interest should involve timely express notice to the relevant body.

• High Court (Chancery Division): appeal from the deputy adjudicator to HM Land Registry dismissed. The deputy adjudicator’s refusal to close the Fell Title was upheld, subject to removal of the description that the respondents were Lord of the Manor of Ireby.
• Adjudicator to HM Land Registry: the Lordship Title was ordered to be closed, but the application to close the Fell Title was cancelled.