Rectification against a registered proprietor in possession (LRA 2002 Sch 4)
When Caleb bought his registered freehold house in Exeter, England, in 2023, HM Land Registry mistakenly included in his title a three-metre strip of garden that belonged to his neighbour, Joan, and removed it from her title. Caleb did not know of the error, gave no misleading information, and took proper care throughout. Since moving in he has fenced the strip into his garden and used it every day. Joan has now discovered the mistake and applies to the registrar for the register to be altered to restore the strip to her title. Caleb does not consent.
Which of the following best describes how the application will be dealt with?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: It cannot be altered without Caleb's consent unless it would for some other reason be unjust not to, as he is in possession and did not cause or contribute to the mistake by fraud or lack of proper care.
THE RULE TO REMEMBER
Rectification against a registered proprietor in possession needs his consent unless he caused or substantially contributed to the mistake by fraud or lack of care, or it would be unjust not to rectify.
Rectification against a registered proprietor in possession (LRA 2002 Sch 4)
Altering the register to correct the mistake would prejudicially affect Caleb's title, so it is rectification within Sch 4 para 1 LRA 2002. Under para 5(a) the registrar may alter the register to correct a mistake, but para 6(2) provides that no alteration affecting the title of the proprietor of a registered estate in land may be made without the proprietor's consent "in relation to land in his possession" unless (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made. Caleb is in possession of the strip, has fenced it and uses it, and was not at fault. Unless Joan can show some other reason why it would be unjust not to alter the register, the strip stays with Caleb. The duty in para 6(3) to approve applications applies only where the registrar has power to make the alteration, and para 6(2) removes that power here.
Why A is wrong: The duty in para 6(3) arises only where the registrar has power to alter, and para 6(2) restricts that power against a proprietor in possession.
Why B is wrong: The register can be altered under Sch 4 to correct a mistake; it is not absolutely conclusive.
Why D is wrong: Age of title is irrelevant; Schedule 4 sets the conditions for rectification.
Why E is wrong: Para 5 gives the registrar power to alter the register to correct a mistake, as well as the court under para 2.
A little more practice done.
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