Kayalaipilai Suhitharan v Henryk Jan Iwaskiewicz

An applicant for rectification of the register must prove, on the balance of probabilities, that the register contains a mistake. Where adjoining properties have separate registered titles, an alleged omission from one title and corresponding inclusion in the other are not necessarily one error. The applicant must establish that each asserted mistake is more probable than legitimate explanations, such as a later sale or adverse possession.

Title to registered land depends on registration, not historic deeds. A discrepancy between the register and old pre-registration deeds does not, without sufficient evidence about the intervening title history, prove a mistake.

The respondent applied to alter the registered titles of 2 and 4 Beancroft Road by transferring a garage and driveway from the appellant’s title to his own. The First-tier Tribunal (Property Chamber) found a mistake on the register and directed alteration.

The appellant appealed, contending that the respondent had not proved the asserted mistakes. The evidence showed that deeds before 1946 supported the respondent’s historic title, but did not establish what had occurred before first registration or thereafter. The appeal also raised, if necessary, the effect of the appellant’s possession of the driveway under Land Registration Act 2002.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The registrar was directed to reverse the alteration made under that decision and to reject the respondent’s application.

2. The respondent bore the burden of proving, on the balance of probabilities, that the register contained a mistake. The alleged exclusion of the disputed land from number 4 and its inclusion in number 2 were separate mistakes, because the properties had separate titles and there was no evidence that they first registered through a single sale of part. One alleged error did not make the other probable.

3. The First-tier Tribunal erred by finding a mistake without determining sufficient facts about what had happened and when. The evidence did not show that two complementary conveyancing errors were more likely than other lawful explanations, including an intervening sale or adverse possession. The respondent’s use of the garage and drive added nothing because it was explained by estate-agent particulars. Historic deeds, nearly eighty years old, were insufficient on their own to prove a mistake in a registered title.

4. The Tribunal rejected the suggested application of Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. There was no enhanced standard of proof, or special requirement for cogent evidence, merely because two mistakes were alleged.

5. As an alternative finding, had a mistake been established, paragraph 6(2) of Schedule 4 to the Land Registration Act 2002 would have applied to the driveway, of which the appellant was in possession, although not to the garage. The driveway could not have been removed unless it was unjust not to alter the register; the evidence did not establish such injustice.

• Upper Tribunal (Lands Chamber): Allowed the appeal and set aside the First-tier Tribunal’s direction to alter the register.
• First-tier Tribunal (Property Chamber), ref 2022/0396: Found that the register contained a mistake and directed the registrar to give effect to the respondent’s application.