Fiaz Akhtar v Slough Borough Council

An applicant seeking alteration of the register under Land Registration Act 2002, Schedule 4, bears the burden of proving the alleged mistake on the balance of probabilities. Where the alleged mistake depends on an invalid transfer, unsupported assertions of forgery, duress or defective attestation will not suffice.

In obiter, the Tribunal explained that registration pursuant to a void disposition, including one invalid for want of proper execution, is a mistake because the registrar would have refused registration if aware of the true facts. A voidable disposition is different: unless rescinded before registration, its registration is not a mistake.

Fiaz Akhtar v Slough Borough Council was an appeal by way of rehearing from the First-tier Tribunal (Property Chamber). Mrs Akhtar had applied to alter the register for 3 Montem Lane by replacing the registered proprietor, Mr Qureshi, with herself.

She alleged that the transfer leading to Mr Qureshi’s registration had not been signed by her, or had been signed under duress, and had not been properly attested. The Council opposed the application. It relied principally on the inconsistency of Mrs Akhtar’s earlier accounts and on handwriting evidence. The central issue was whether she had proved a mistake in the register for the purposes of Schedule 4 to the Land Registration Act 2002.

1. Appeal dismissed. Mrs Akhtar had not proved that either signature on the 2007 TR1 was not genuine. She had therefore not established that Mr Qureshi’s registration was wrong or that there was a mistake requiring correction.

2. The applicant bore the burden of proving the asserted facts on the balance of probabilities. The Tribunal found Mrs Akhtar’s evidence wholly unreliable. Her numerous earlier statements denying any proprietary interest in the property materially undermined her current case. The handwriting evidence of Dr Pugh, the only expert to examine the 2007 TR1, supported the conclusion that Mrs Akhtar had signed it.

3. There was no evidential basis for the alternative allegation of duress. Nor did the untested and sparse statement of the purported witness, Mr Siminiuc, establish on the balance of probabilities that he had not signed the transfer.

4. Obiter, the Tribunal held that the First-tier Tribunal had erred in its approach to “mistake”. Applying NRAM Ltd v Evans [2017] EWCA Civ 1013, a registrable disposition that is void for want of proper execution would make the resulting registration a mistake. If the registrar had known the true facts, the registrar would have refused the entry. A possible later requisition and a possible cure of the defect could not alter that conclusion.

5. By contrast, a voidable disposition remains valid unless and until it is rescinded. Its registration is therefore not a mistake merely because it may later be avoided. Even where a mistake is shown, alteration under Schedule 4 is not automatic; the statutory conditions governing the power and duty to alter must still be applied.

• Upper Tribunal (Lands Chamber) — appeal by rehearing dismissed: [2019] UKUT 308 (LC).
• First-tier Tribunal (Property Chamber) — directed the registrar to cancel Mrs Akhtar’s application to alter the register. No citation is stated in the judgment.