23 December 2010

Late Challenges to registration of a squatter as registered propietor of land


Notes on Baxter v Mannion [2010] WLR 1965

By Tim Hirst

1. This decision of Henderson J reaches the initially surprising conclusion that, although served with notice of the application by the squatter for registration under Schedule 6 paragraph 1(1) Registration Act 2002, it was open to the original proprietor to apply under Schedule 4 for rectification and to succeed on the basis that the squatter has not been in adverse possession for the requisite 10 years, although he had failed to give the required counter notice.

2. The power of the Adjudicator to rectify is contained in Schedule 6 by paragraph 1(a). It involves the correction of a mistake. This requires either consent of the squatter proprietor or a finding that he has by fraud or lack of proper care, caused or substantially contributed to the mistake or that it would unjust not to rectify.

3. This case did not involve fraud, nor did it involve negligence so it is a useful guide as to when it would be unjust. In effect, the Adjudicator heard a fully blown adverse possession claim with Mr Baxter ( the squatter) and his witnesses giving evidence that he had been in possession of the grassland in question between 1985 and 2005. Keeping and feeding horses on the land as well as repairing the fences.

4. In opposition, Mr Mannion (the dispossessed proprietor) and various surveyors and advisors gave evidence of visits to the field (which he had purchased solely as a speculator). On those visits there were no horses nor were there any signs of occupation and secondly, there were gaps in the hedge.

5. Mr Baxter's evidence was held by the Adjudicator to be suspect. She found that there were gaps in the boundary hedge.

6. Relying on these findings, the Appeal Judge held that, "Mr Baxter's registration was a mistake because he was not in fact in adverse possession of the field for a 10 year period at the date of the application on the 19th August 2005. He therefore did not satisfy Schedule 6(1) and was never entitled to apply for registration in the first place".

7. It is thus clear that it is open for the dispossessed party to argue the whole issue of whether there has been adverse possession. The jurisdiction is not confined solely to mistakes of a procedural nature: see paragraph 39.

8. More surprisingly still, the failure by the original registered proprietor to serve a counter notice within 65 days of the receipt of the application was not fatal. There were serious personal extenuating circumstances in this case but in effect, the only remaining basis of challenge open to Mr Mannion having failed to give counter notice was under Schedule 6 paragraph 6(2) and (3). 9. Fraud and lack of proper care were not argued so that it was necessary in addition to show that it would be unjust in the circumstances for the alteration of the register back to the original forms it held to be made.

10. It was primarily the robust stance of the Adjudicator which was supported by Henderson J. There were 3 reasons cited by the Judge for giving a wide construction to the word "mistake":-

(a) The general policy of the 2002 Act was severely to limit the circumstances in which a squatter can acquire title to registered land;

(b) The narrow interpretation would invite fraud because once the Registrar allowed the squatter's application to proceed; the registration would follow in absence of a counter notice;

(c) If a broad interpretation was not followed, the former proprietor would be precluded from claiming indemnity from the Land Registry under Section 103 and Schedule 8 of the Act. 11. He held, "Such an interpretation of the 2002 Act will fail to strike a fair balance between the demands of the community as a whole and protection of the former owner's fundamental rights under Article 1 Protocol 1".

12. There were two sets of requirements to be satisfied by the displaced former proprietor but firstly he had to show mistake under paragraph 5 and then he also had to settle the issue of unjustness under paragraph 6. Henderson J was persuaded it was unjust not to rectify, it being argued that Baxter firstly was never entitled to the land. Secondly, he had produced misleading evidence and his evidence had been disbelieved.

Mannion furthermore could explain why he failed to give the counter notice and lastly Mannion would not necessarily be compensated in full in the claim for indemnity because he could be treated as partially responsible himself for his loss by failing to issue the counter notice.