Amirtharaja & Anor v White & Ano

For adverse possession, physical control must be accompanied by a clear intention to possess the land and exclude the paper owner, so far as reasonably practicable. Acts such as locking a gate may remain equivocal where they are equally referable to protecting a right of way or securing adjoining property. In such cases, clear and affirmative evidence of the intention to possess is required. A mistake under the Land Registration Act 2002 concerns the substance of the registered title, assessed by asking whether the registrar would have made the same entry if aware of the true state of affairs. Procedural defects, such as failure to give notice, do not necessarily constitute a mistake requiring rectification.

The appellants appealed from an order of His Honour Judge Holmes in the County Court at Southend directing rectification of the register under the Land Registration Act 2002. The disputed passageway lay between buildings owned by the appellants and provided access between an access road and the respondents’ property.

The respondents relied principally on a statutory declaration by their predecessor, asserting adverse possession. The appeal concerned the weight and effect of that evidence, whether the predecessor had the requisite intention to possess, whether the first registration of the passageway was a mistake, and whether exceptional circumstances or alleged abuse of process affected the relief.

1. Appeal allowed. The declaration and order rectifying the register were set aside, and the respondents’ action was dismissed.
2. Adverse possession requires factual possession and an intention to possess. The intention must be to possess in one’s own name and on one’s own behalf, excluding the world at large, including the paper owner, so far as reasonably practicable.
3. Where the claimant’s acts are equivocal, clear and affirmative evidence of the intention to possess is required. The existence of a right of way may make enclosure or a locked gate equivocal, because the acts may protect access rights or adjoining property rather than exclude the owner. Littledale v Liverpool College remained good law on that point. The first-instance judge failed to address the intention requirement separately or to analyse the equivocal nature of the acts.
4. The statutory declaration was made decades after the relevant events, after the dispute had arisen, and by a person who had not transferred the passageway with the property. It had to be weighed against the contemporaneous survey report and the earlier declaration by the James brothers. On the evidence, the use described was consistent with access and storage, and did not establish the requisite intention to possess.
5. A mistake under the Land Registration Act 2002 is assessed by asking whether the registrar would have made the same entry, or made it in the same form, had the true state of affairs been known at the time. The judge had improperly reinterpreted the evidence available to the registrar. Failure to notify a former registered proprietor was a procedural defect, not a substantive mistake requiring rectification.
6. The application to adduce new title documents and amend the grounds of appeal was refused under CPR 52.21(2). The evidence could have been addressed at trial and its admission would have required further factual investigation. The observations in Singh v Dass supported that conclusion.
7. The court declined to determine the issues concerning exceptional circumstances because rectification was not otherwise required. It nevertheless rejected the allegation that the proceedings were a nullity or an abuse of process arising from the inclusion of a deceased claimant.

• High Court (Chancery Division): Appeal from the order of His Honour Judge Holmes in the County Court at Southend made on 4 October 2019. The appeal was allowed and the order for rectification was set aside.