Summary

The balance weighed in favour of granting rectification of title to the defendants who held the paper title to the disputed land despite the significance of the policy of the Land Registry Act 1925 in favour of the registered proprietor in possession.

Facts

Appeal by the defendants from the decision of HH Judge Maddocks by which he resolved a dispute concerning the ownership of a parcel of land ('the axe-head') in favour of the claimant ('J'). The axe-head adjoined property ('Cornhill Farm') owned by the defendants, and land owned by J ('the garage site'). A number of conveyances existed regarding both properties. It was clear that the axe-head had formed part of Cornhill Farm but was used by the previous owners of the garage site for parking and turning of vehicles. In 1968 Cornhill Farm was conveyed to Mr Borne ('B') ('the 1968 conveyance') but the axe-head was not included in the plan that was annexed "for identification" purposes. In 1982 Cornhill Farm was conveyed to the first defendant ('S') ('the 1982 conveyance'). This purported to convey to S all that was conveyed to B under the 1968 conveyance. In May 1998 J purchased the garage site. The file plan attached to the conveyance for the garage site that was registered at the Land Registry excluded the axe-head. However, by a series of correspondence between the Land Registry and solicitors acting for J and the defendants, J's title was extended to include the axe-head. Whilst the defendants disputed J's ownership to the land, following an error by their solicitor, the Land Registry made the extension to J's title. J commenced proceedings seeking: (i) a declaration that she was the owner of the axe-head; and (ii) an injunction and damages for the defendants' purported trespass on and obstruction of the site. By a counterclaim the defendants sought rectification of S's title under the Land Registration Act 1925 to include the axe-head. The judge found that J was the owner of the title to the axe-head and that the defendants had trespassed on the land and caused an obstruction. The issues on appeal were, inter alia: (a) whether the judge had erred in finding that the axe-head land was excluded from the land conveyed to S under the 1982 conveyance; (b) whether the judge had erred in refusing to rectify S's title; and (c) if so, whether it was appropriate to rectify S's title to include the axe-head.

Held

(1) On the issue of title, the judge's reasons were brief and imprecise. He grouped together the conveyancing history without having regard to the changes in use of the axe-head and the surrounding parcels of land in 1968 and 1982. Furthermore, the judge disregarded important evidence of a previous owner of the garage site that he considered the owner of Cornhill Farm to be the owner of the axe-head. The true position was that there was a parallel to be drawn between the 1968 and 1982 conveyances and it could not be doubted that all that was conveyed in 1968 was the same as was conveyed to S in 1982. (2) It was well established that where there was a verbal description of parcels of land to be conveyed and a map was used, then it could be specified in the conveyance whether the verbal statements or the map prevailed. If delineation on the plan was "for identification only" purposes, a verbal description of the land prevailed. If however the verbal description was not enough, then the plan could be used as assistance (see Wigginton & Milner Ltd v Winster Engineering Ltd (1978) 1 WLR 1462). In the 1968 conveyance, the verbal description of the land conveyed prevailed over the plan attached since the plan was for "for identification" only. It was clear from the description of the land that the axe-head had to have been included in the 1968 conveyance. It followed, on the basis that the 1982 conveyance conveyed all that was included in the 1968 conveyance, that in 1982 the axe-head was conveyed to S. (3) On the issue of rectification of title, the judge considered that the relevant date was J's acquisition of the garage site in 1998. That was a surprising finding since the judge also found that J did not acquire the axe-head until the extension of her title by the Land Registry in 2000. It was hard to see any date other than the date of registration by the Land Registry as the relevant date for J's acquiring the axe-head for the purpose of rectification. Accordingly, the judge had erred in his approach to rectification. (4) Despite the significance of the policy of the Act in favour of the registered proprietor in possession, the balance in the instant case weighed in favour of granting rectification to the defendants. S had held the paper title to the axe-head for a number of years and the site had been used by the defendants for their own use in the course of their business. Contrary to the judge's findings, there was clear evidence that the axe-head was used by the defendants since they acquired Cornhill Farm. The site only appeared to have been omitted from the 1982 conveyance because of an inaccurate plan attached to it. Furthermore, J knew or ought to have known that she did not have the paper title to the axe-head. The inclusion of the axe-head in J's title by the Land Registry was an administrative act taken in the erroneous belief that there was no dispute over the site. (5) Accordingly the judge's decision would be set aside and S's title rectified to include the axe-head.

Appeal allowed.