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Adverse possession claim cannot rely on owners' failure to return form

7 March 2011

The ‘bureaucratic machinery’ behind the registration of land does not ‘trump reality’, appeal judges have ruled.

The case concerned the ownership of a small field near Chatteris, Cambridgeshire. Thomas Mannion was the registered owner, but Steven Baxter claimed he had been in adverse possession of the field since 1985.

Delivering judgment in Baxter v Mannion [2011] EWCA Civ 120, Lord Justice Jacob said the case raised an “important point of principle”. He said the question was whether a man who had got his name registered at the proprietor by wrongly claiming he had been in adverse possession for ten years should keep his title if the original proprietor had failed to return a form to the Land Registry within 56 days.

“Or can the original proprietor apply to the registrar to have the register of title rectified by ‘correcting a mistake’?

“Does the machinery of the Land Registration Act 2002 allow a party to take someone else’s land by operation of a bureaucratic machinery which trumps reality?”

Jacob LJ said that in August 2005 Baxter made an application to the Land Registry for registration of the field in his name under paragraph 1(1) of schedule 6 to the Act.

“Mr Baxter claimed he had been in adverse possession of the field since 1985, supporting the application with a statutory declaration to that effect.”

Jacob LJ said the Land Registry sent Mannion a notice giving him 65 working days to object to the new registration, but before Mannion could object he was hit by a series of family tragedies, including the death of his brother and his baby grandson.

Lord Justice Jacob said that under schedule 4 of the 2002 Act, the land registrar could alter the register “for the purposes of correcting a mistake” but it would be “an invitation to fraud” to limit this to a mistake made through “some official error”.

Jacob LJ went on: “A dishonest applicant (perhaps knowing the registered proprietor would be away or otherwise unable or unlikely to send in a NAP form in time or at all) could falsely claim he had been in adverse possession for ten years.

“His application would succeed because on its face it looked in order and the true owner would lose his land.

“The fact that there is no possibility of extending the prescribed time means that parliament either intended that the rectification power could cover such a case or that the true owner could lose his land for want of a form in time. The latter is wholly improbable.”

Jacob LJ added that for landowners to lose land without compensation in this way would breach article 1 of the first protocol of the ECHR. He said the judge was right to reject the argument that the deputy adjudicator’s approach to the onus of proof invalidated her findings of fact.

The deputy adjudicator had “no hesitation” in accepting Mannion’s evidence and rejecting part of Baxter’s, Jacob LJ said.

This was not the result of any question involving the onus of proof but a result of the adjudicator “seeing and hearing” key witnesses and evaluating the effect of this evidence, along with written evidence which had been accepted without challenge.

Lord Justice Jacob dismissed the appeal. Lord Justices Tomlinson and Mummery agreed.

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