Summary

A registration of a land charge in the Land Charges Register against the correct name of the estate owner where the land, as described, was a version of the land fully described in the conveyance, constituted an effective registration.

Facts

Defendant's appeal from the order of HH Judge Colyer QC (sitting as a deputy judge of the Chancery Division) made 26 October 1998. The Charges Register, in respect of her property, was to be rectified pursuant to s.82 Land Registration Act 1925 ('LRA') by the entry of covenants contained in a schedule to a conveyance of property to the claimants' predecessor in title dated 18 January 1960.

By that conveyance, a Douglas Marriott had conveyed to a Dennis Collin Thorne a plot of land described in the conveyance as "all that piece or parcel of land situate in the Parish of Eling in the county of Hants...together with the...dwellinghouse...known as 'Seven Oaks' Salisbury Road, Brook Hill, Ower". Mr Marriott had retained a field known as "plot 2". The conveyance contained, for the benefit of the land conveyed, a covenant which was essentially restrictive of building on plot 2. By an application of 20 January 1960 Mr Thorne's solicitors applied to register the restrictive covenants as class D(ii) land charges against the name of Mr Marriott as "affecting land in the County of Hants in the Parish of Ower or place or district of Brooks Hill, Ower known as land adjoining "Seven Oaks", Salisbury Road, Brooks Hill, Ower, Hants". The late Mr Cooper, the defendant, purchased plot 2 (the land which had been retained by Mr Marriott) on 4 November 1965. Prior to completing that purchase Mr Cooper's solicitors had applied for an official search of the land charges register against Mr Marriott's name in respect of land described as being "in the County of Hants, in the parish of Eling in the place or district of Totton, Southampton, known as a piece of land in Salisbury Road, Totton, Southampton". A clear search certificate was obtained. The conveyance described plot 2 and made clear that the conveyance was subject to the covenants in the 1960 conveyance. In 1989 the claimants purchased Seven Oaks from Mr Thorne. In 1997 the defendant applied for a voluntary registration of his title and was duly registered as proprietor of plot 2, free of the covenants.

The claimants took out their originating summons in 1998 seeking rectification of the register pursuant to s.82 LRA. The judge held that: (i) the covenants had been effectively registered as class D(ii) land charges; and (ii) the search carried out by Mr Cooper's solicitors in 1965 had been effective because the description given of the land had been sufficiently unambiguous making it practicable for the Land Registry to find the entry. Though the application had not been as carefully drafted as it could have been the class D(ii) land charge should have been revealed. In those circumstances the covenants were not binding. However the judge then considered rectification under s.82 LRA and held that to not so order would give the defendant an undeserved and unbargained for windfall. The defendant appealed contending that the judge had erred in: (i) finding that the covenants were validly registered; (ii) finding that the official search had been effective; and (iii) the exercise of his discretion in ordering rectification.

Held

(1) It was accepted by both parties that, on the findings made, the judge had not had the jurisdiction to have ordered rectification under s.82(3) LRA. The judge appeared to have misconstrued s.82(3) as enlarging his discretion under s.82(1). The power to order rectification was limited to those cases listed in subsections (a) to (h) of s.82(1) (see Norwich and Peterborough Building Society v Steed (1993) Ch 116) and the effect of s.82(3) was to curb the exercise of discretion, not enlarge it. (2) The judge had correctly found that the registration of the covenants as class D(ii) land charges had been effective. Registration had been made against the correct name (see s.10 Land Charges Act 1925 which had been in force at the relevant time). The land in question had been described as a version of that given in the documents. The reasoning of Russell LJ in Oak Co-operative Building Society v Blackburn (1968) Ch 730 at p.743E-F in relation to versions of the full name, applied equally to a version of a full description of the land. (3) The judge had been wrong to have found that the 1965 search had been effective. The application to search against Mr Marriott's name had not followed the description of the land in the title deeds. The land was not in Totton. It was in Ower which was near Totton. A closer inspection of the application showed that there was no reference to the land being at Ower or that it adjoined Seven Oaks, both of which had been present in the description of the land in the title deeds. The application gave scope for misunderstanding and was accordingly ineffective. Accordingly, the clear official search certificate could not be relied upon (see Du Sautoy v Symes (1967) Ch 1146 at p.1168A) and Mr Cooper took subject to the covenants. (4) Given this conclusion, the court did have a discretion to order rectification under s.82(1)(h) LRA. In this case it was just to order rectification because the conveyance of plot 2 to Mr Cooper had been expressly subject to the covenants and the price paid had not suggested that the land was unencumbered.

Appeal dismissed. Application for permission to appeal to the House of Lords refused.