Horace Parshall v Clara Hackney (2013)
Rectification and indemnification were the only remedies for mistakes resulting from concurrent registration of land in two different titles; nobody with registered title to land could, at the same time, establish possessory title, because their occupation of the land would not be unlawful. Time did not, therefore, begin to run for the purposes of adverse possession until rectification had taken place. The Limitation Act 1980 did not apply to the statutory right of rectification.
The appellant property owner (P) appealed against a decision ( EWHC 665 (Ch)) that the respondent property owner (H) had acquired possessory title to a piece of land which had long been a part of P's property, and which had been the subject of an error at the Land Registry.
The disputed land had been part of P's property for almost a century. In 1980, it had mistakenly been included in the registered title of both parties' properties. The problem was further compounded in 2000 when the Land Registry computerised its title plans and accidentally excluded the disputed land from P's title. Those mistakes went undetected until 2008 when P applied to rectify the register by having the disputed land removed from H's title. H's case was that, having taken possession of the land in July 1988, she had acquired it by adverse possession and that P's action to recover it was statute-barred. The court was required to decide which of prior registration or adverse possession was the better title, and whether the land register should be rectified. A deputy adjudicator to the Land Registry, refusing rectification, found that possessory title had been acquired by H, even though she and her predecessors had, throughout the relevant period, been registered as the proprietors of it. The High Court agreed that H had acquired possessory title, although its reasons were different. As the case raised an important point of principle involving the separation of legal and beneficial ownership in relation to adverse possession, permission for a second appeal was granted.
The success of the appeal turned on whether P had been dispossessed of the disputed land in July 1988 and whether H had been in adverse possession of it in the period up to 2003. There had been no dispossession in July 1988 because H's taking of possession of the disputed land had not been unlawful; she had had registered title to it and, therefore, her possession could not have been adverse to P. Consequently, time did not begin to run against P in July 1988, Buckinghamshire CC v Moran  Ch. 623, Malory Enterprises Ltd v Cheshire Homes (UK) Ltd  EWCA Civ 151,  Ch. 216 and JA Pye (Oxford) Ltd v Graham  UKHL 30,  1 A.C. 419 considered. P, however, did not have a completed cause of action for the recovery of the disputed land because he could not plead a better title to it than H. Therefore, in the same way as time did not begin to run against P in July 1988, nor did it start to run in favour of H. The legal position was that the two registered titles co-existed on the register unless and until the register was rectified. It was in H's interests to overlook the concurrent registration issue and rely instead on a possessory title, but it was not open to her to ignore the legal fact of concurrent registration or its consequences. Mistakes of concurrent registration were liable to be rectified in accordance with the procedures in the Land Registration Act 1925. The question of rectification was, therefore, logically prior to the determination of the question of possessory title. The land register was a system of state-guaranteed registered title and legislation provided machinery for the correction of mistakes in order to protect proprietors' interests and prevent injustice. It was that machinery which had to be used to establish the true title to registered land before any question of potential possessory title arose. The Limitation Act 1980 did not apply to the statutory right to apply to rectify the land register. The fact that P had a right to apply for rectification, which he had not exercised, did not give him a right of action to recover possession of the disputed land from others who had a concurrent registered title to it (see paras 25, 27, 31-37, 41-47, 83-102 of judgment).
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26 Mar 2013
Court of Appeal
Mummery LJ, Patten LJ, Treacy LJ
LTL 26/3/2013 :  EWCA Civ 240
Christopher Pymont QC