The register of a property’s title can be rectified if it contains a mistake. The question of what constitutes proof of a mistake was the subject of a recent case in which the Upper Tribunal (UT) allowed a homeowner’s appeal against a decision that title to a garage and driveway should be transferred to his neighbour’s property.
The homeowner had bought his house in 2019. His neighbour, who had used the garage and driveway since he acquired his property in 2000, objected to him parking on the driveway and put up a retractable bollard to prevent him from doing so. The neighbour then applied to HM Land Registry to transfer the title to the garage and driveway from the homeowner’s property to his property. The homeowner objected and the matter was referred to the First-tier Tribunal (FTT).
The FTT noted that three previous conveyances of the neighbour’s property, the latest dated 1946, referred to it having a frontage of 66 feet, which was about the frontage of the property together with the disputed land. Plans relating to the homeowner’s property appeared not to include the disputed land. An estate agent’s brochure had said that the neighbour’s property included a driveway and garage, and a Zoopla history for the homeowner’s property in 2011 did not mention a garage.
The FTT was just persuaded that the disputed land was included in the homeowner’s title by mistake, adding that it was not possible to say when or how that mistake was made. It directed the registrar to give effect to the neighbour’s application.
The homeowner appealed to the UT, arguing that the FTT had ignored the need to find two mistakes: both the omission of the disputed land from the neighbour’s title and its inclusion in his. It had also failed to establish the nature of the mistakes.
The UT noted that there was no evidence that the properties had ever been in common ownership. They were two separate titles that must have been registered on different dates. If the disputed land had been mistakenly included or omitted from the earlier registration, there was no reason why the converse mistake would have been made when the later registration occurred. Neither mistake made the other one unsurprising so that they could be regarded as the same mistake. The neighbour therefore had to prove that there had been two separate mistakes.
The UT found that some information about the two suggested mistakes was required to show that that was the most probable explanation. The disputed land could have been sold to the homeowner’s predecessor in title. While the FTT had noted that there was no evidence that such a transaction had taken place, it was not for the homeowner to prove that it had. Rather, the neighbour had to show that two independent mistakes were more likely than a sale. Another possibility was that the disputed land had been incorporated into the homeowner’s title after being acquired by adverse possession.
The UT concluded that there was no basis on which the FTT could have found, on the evidence before it, that two mistakes had happened. The FTT’s decision was set aside.