The Upper Tribunal considers what constitutes valid evidence of a mistake on the title register.
In this appeal from the First-tier Tribunal (FTT), the Upper Tribunal considered a case between two neighbours involving what was said to be an error on the title register.
Mr Iwaskiewicz made an application to the Land Registry to alter the register to the title to his property, 4 Beancroft Road, by removing a garage and driveway ("the disputed land") from the title to number 2 Beancroft Road and including it within the title to number 4.
Mr Suhitharan (owned of number 2) objected, and the matter was referred to the FTT pursuant to section 73 of the Land Registration Act 2002. Having considered the application, the FTT found that there had been a mistake on the register and directed the registrar to give effect to the application.
Mr Suhitharan appealed the FTT's determination on two grounds. The first ground was that the FTT decision was wrong for a number of reasons. They key points that were the crux of this appeal are:
(a) The Judge had ignored the need to find two mistakes – both the omission of the disputed land from the title to number 4 and its inclusion in the title to number 2; and
(b) The Judge failed to establish the nature (including the timing and manner) of the mistake.
Mr Suhitharan's second ground of appeal was made pursuant to Paragraph 6(2) Schedule 4 of the Land Registration Act 2002, which provides a potent protection for the registered proprietor in possession of land (i.e. unless he has caused or substantially contributed to the mistake by fraud of lack of proper care, or it would be for any other reason unjust for the alteration not to be made, the title cannot be rectified without his consent).
Ultimately, the Upper Tribunal considered that Mr Suhitharan succeeded on his first ground of appeal, on the basis that the FTT was wrong to make a finding of mistake without any finding as to what happened and when, which was a result of the lack of sufficient evidence provided by Mr Iwaskiewicz.
The only documentary evidence provided in support of Mr Iwaskiewicz's position was the particulars of sale supplied to him by the estate agent at the time of his purchase. Mr Iwaskiewicz did not suggest that he had received incorrect legal advice at the time of his purchase, nor did he suggest that the previous owner of the property had told him that the disputed land was within his title.
This finding meant the FTT's conclusion was unexplained. The Upper Tribunal raised the following questions:
"why is it more likely that two conveyancers made independent and complementary errors (a matching omission and inclusion) than that an estate agent made a mistake in 2000? Why was it more likely that two such errors were made than that the two neighbours at some stage before 2000 agreed a sale of the garage?"
For the same reasons, the Upper Tribunal found that there was no basis on which the FTT Judge could have found that these two mistakes (an omission and inclusion in the title) had happened on the balance of probabilities. The appeal was therefore successful. This meant that the second ground of appeal did not arise.
Key takeaway - where you (or your client) are seeking to rectify what you believe to be an error on the title register, the burden of proof rests with you. You will be best served by investigating the full history and tracing the path to current registration of the land, providing full disclosure to both the Land Registry and the FTT as soon as possible. As the Judge noted, the fact that the registered title is inconsistent with pre-registration deeds some decades old is not by itself evidence that there is a mistake on the register.
