Land registration - alteration of the register and the presumption of ownership where land adjoins a road
- The principle that the owner of land adjoining a highway also owns the soil up to the middle of the highway does not apply to a footpath
- Anyone can apply for the register to be altered; it is not necessary to have an interest in the relevant land
- A boundary of a registered title may be altered by the court under the 'general boundaries' rule
- However, this may not be the case where the dispute is a 'property dispute' rather than a 'boundary dispute'
Facts of Paton v Todd
In Paton v Todd, P argued that an accessway which was included in T's registered title should in fact form part of P's title.
A Land Registry adjudicator ruled that the accessway should not have been included in T's title when it was first registered. However, he also held that P did not own the accessway either. This meant that, prior to its mistaken registration in T's name, the accessway was owned by an unknown third party.
The question was whether, in the circumstances, P was entitled to apply for the accessway to be removed from T's title. The adjudicator held that P was entitled to do so, but on the facts refused to amend T's title. P appealed to the High Court.
Ownership where land adjoins a highway
There is a presumption that the owner of land adjoining a highway also owns the soil up to the middle of the highway. The presumption applies in relation to private, as well as public roads. There is also a presumption that a conveyance of land adjoining a highway will include the soil up to the midway point of the highway if the landowner can be shown, or is presumed, to own it. Both presumptions can however be rebutted.
The accessway in Paton v Todd was not capable of being used by vehicles, but only on foot. The court thought that it was difficult to apply either of the two presumptions above to a footpath. The way in which a footpath comes into existence was very different from the way in which a public or even a private road comes into existence.
P could not therefore rely on the presumptions to establish title to the accessway.
Entitlement to apply to alter the register
In Wells v Pilling Parish Council, it was decided that an application to alter the register is an issue of private (as opposed to public) law, and as such an applicant must have sufficient 'standing' (meaning entitlement) to make the application. It was conceded in that case that this meant having an interest in the land in question.
However, in July 2011, the High Court in Mann v Dingley decided that there was no requirement that an applicant for alteration of the register had to show an interest in the registered land. The court in Paton v Todd therefore proceeded on the basis that P could apply for alteration of T's title even though P could not show that they ever owned the accessway.
Should the register be altered?
The register can be altered for the purpose of correcting a mistake. In this case, a mistake had clearly occurred when the accessway was included in the title on first registration. However, T was not the applicant for first registration but had bought the land subsequently from the first registered proprietor. The court was prepared to assume, without deciding, that it had the power to correct the mistake as against T.
The court has more limited powers to correct a mistake where the correction would amount to rectification, and the registered proprietor is in possession of the land in question. Rectification is defined in the Land Registration Act 2002 as the correction of a mistake which would prejudicially affect the title of a registered proprietor. However, in a line of decisions including Derbyshire County Council v Fallon, Strachey v Ramage and Drake v Fripp, the court has ruled that an alteration to the boundary on the filed plan will not necessarily prejudicially affect the title of the proprietor. This is because the boundaries shown on the filed plan are general only and do not show the precise location of the boundary.
In the present case the court thought that the dispute over the accessway was more than just a boundary dispute, and ruled that the alteration would amount to rectification. Since T was not in possession of the accessway however, this had no bearing on the outcome.
Under the Land Registration Act, the court was obliged to alter the register unless there were 'exceptional circumstances' which justified its not doing so. The Land Registry adjudicator considered that there were exceptional circumstances, essentially because if the register was altered the land would be left with no known owner. The High Court disagreed.
The High Court acknowledged that the fact that P did not themselves own the land which they were seeking to remove from T's title could amount to an exceptional circumstance preventing alteration. However, it did not think that this circumstance alone justified the alteration not being made. It ruled that the correct approach was to consider the effect on both parties of both an alteration and a refusal to alter the register. This would involve for example consideration of what T wished to do with his remaining land and the effect on those proposals of the accessway being removed from his title.
Since the High Court did not have the necessary evidence before it to evaluate these matters, it remitted the case back to the Land Registry Adjudicator for re-determination.
Things to consider
In previous cases on the general boundaries rule (see above) we have commented that there appears to be no limit to the extent of land which can be affected by the rule. Paton v Todd is interesting because it shows the court moving away from this view where the dispute can be more accurately categorized as a 'property dispute' rather than a 'boundary dispute'.
The difference between the two types of dispute will be a matter of fact and degree, but the court commented that the ratio of the area of the land in dispute to the area of the other land in the registered title may be a relevant consideration. With respect, this would seem to be a difficult basis on which to draw the distinction, as the extent of land within an individual registered title may simply be an incident of its conveyancing history. The court went on to say that this was not the only factor to consider, and in this case the fact that the disputed land was an accessway gave it additional importance with the result that it could be said that an alteration of the register would prejudicially affect T.
Following Paton v Todd, it now also seems clear that anyone may apply for an alteration to be made to the register. This conclusion tallies with the express position under the Land Registration Act in relation to objections to an application to the Land Registry. Under section 73 of that Act, anyone can object to an application, but someone who objects without reasonable cause may be liable in damages for any loss caused.
The above analysis was written by Sarah Dawe, associate in Wragge & Co's Real Estate group.
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