No case typifies the impact of land registration under the Land Registration Act 2002 than the recent and fascinating decision in Walker v. Burton. Managing to combine reflections on the feudal origins of modern land law, with an application of the statutes Quia Emptores 1290 and the Land Registration Act 2002, the case spans the centuries. It reminds us that the principles of land law with which we are so familiar today are the product of organic growth that reflected the reality of land use rather than some pre-designed grand plan. It also deals with a difficult and controversial aspect of land registration – the circumstances in which the register can be rectified – and in so doing provides guidance on the interpretation of Schedule 4 to the 2002 Act, a Schedule that will become increasingly important as the real force of title registration under the 2002 Act becomes apparent. In the Report which led to the 2002 Act, the Law Commission put the matter starkly: “[t]hese changes will necessarily alter the perception of title to land. It will be the fact of registration and registration alone that confers title”. Walker v. Burton tests this to the limit and puts the 2002 Act in conflict with our pre-registration notions of title and with the ancient feudal principle nulle terue sans seigneur, the Crown's ultimate right of dominium through conquest. It also illuminates several vital aspects of the 2002 Act as well as dealing with everyday matters of land registration that are so important in practice.
Ireby Fell in Lancashire was part of an ancient manor. It comprises some 362 acres of moorland adjacent to Over Hall Farm. The lordship of the manor of Ireby had existed since the late eleventh century and might have been held by the Knights of St John of Jerusalem in the thirteenth century. However, the lordship had dropped out of sight until it was assumed by the then owners of Over Hall Farm in the eighteenth century. The Hall itself was now (and had been since 2000) in the registered freehold proprietorship of Mr Burton and Miss Bamford, and on 10 October 2003 they also had become first registered proprietors of the lordship or manor, or reputed lordship or manor, of Ireby. It is not clear whether this “lordship registration” was procured because of the impending entry into force of the LRA 2002 on 13 October 2003, but certainly under the 2002 Act it is no longer possible to register lordship titles, although those already registered may remain so. In February 2005, Mr Burton and Miss Bamford also became first registered proprietors of Ireby Fell itself, having persuaded the land registry that this land was either desmense land of the manor or manorial waste. In fact, the Fell had never been conveyed to them, and its ownership had been in doubt for many years, but in essence Mr Burton and Miss Bamford claimed to be entitled to the Fell because it was land of the manor and they were registered proprietors of the lordship of the manor.
Unsurprisingly, the registration of Mr Burton and Miss Bamford as proprietors of the Fell caused outrage among some of the inhabitants of the surrounding villages, especially as the Fell appeared to have been managed for many years by the local community without incident or problem. Although the evidence established that the new proprietors did not seek to exclude the local community from the Fell or from exercising rights and privileges customarily enjoyed, the proprietors did start to exercise active control, including the erection of signs and the issuing of additional shooting and grazing licences as they saw fit. In due course, several members of the local community challenged the registration of Mr Burton and Miss Bamford as proprietors of the lordship and of the Fell. There was, of course, no challenge to their registration as proprietors of Over Hall Farm. The challenge took the form of an application to close the registered titles of the lordship and the Fell, which in terms of the Land Registration Act 2002 amounted to an application to “rectify” the register, this being a proposed alteration which would (allegedly) correct “a mistake” and that would (certainly) prejudicially affect the title of a registered proprietor. As a potential rectification, rather than a mere alteration, the application fell within Schedule 4, para. 6 of the 2002 Act, a difficult provision which already had been the subject of consideration by the Court of Appeal in Baxter v. Mannion.
On referral to the adjudicator, a preliminary question arose as to whether the applicants had locus standi to apply to close the proprietors' two titles, given that the applicants were not alleging that any of them had any property rights to the Fell and that their claim to an interest in the lordship was extremely tenuous. In essence, this was an application by persons descriptively “interested” in the disputed registrations, but it was not a classic application for rectification by a person who had appeared to have lost a proprietary right of their own by reason of the registration of another – as was the case in Baxter v. Mannion. This had caused difficulty before, and in Wells v. Pilling Parish Council it had been conceded that an applicant seeking rectification had to show some interest in the land affected before the application could proceed. In a carefully reasoned decision, adjudicator cousins in the preliminary hearing in this case declined to follow Pilling. The adjudicator noted that the issue in Pilling was whether the closure of Mr Wells' registered possessory title raised a matter of public or private law and, having held that it was the latter, the Parish Council conceded that it had no standing. In technical terms, therefore, Pilling did not determine what was necessary to have standing to make an application for alteration/rectification of another's title, but rather the nature of a land registration dispute. Consequently, adjudicator cousins felt able to look at the matter afresh and this is particularly significant as the land registry had flip-flopped in its policy: first requiring the applicant to have an interest in the disputed land before an objection to another's registration could be made (being its position under the 1925 Act and continued when the 2002 entered into force), then removing the requirement, only to re-instate it after Pilling. However, adjudicator cousins' view was that because the 2002 Act did not expressly require an applicant to have an interest or alleged interest in the land affected, no such requirement could be read into the Act or rules. In his view, there were safeguards against unmeritorious applications because the registry could dismiss groundless applications and because, under s.77 LRA 2002, a person could not object to an application without “reasonable cause”. Whether this rejection of a formal standing requirement will result in an increase in applications to rectify against a proprietor is uncertain, and clearly there is a fear of “busy body” or malicious applications. However, perhaps these can be dealt with under the safeguards that adjudicator Cousin's identifies and, as this case shows, it will not always be the case that the people genuinely most interested in a registration issue – here the local population – necessarily claim the land or a proprietary right in it for themselves. Had the villagers not been able to make an application, the registered proprietors would have been unchallengeable – as nobody else was claiming ownership of the Fell – and given the conclusive nature of proprietorship registration, adjudicator Cousin's decision is pragmatic and in the public interest. It reflects a view that registration is now constitutive of title and, as such, that there must be public and professional confidence in the system. The decision was followed in Mann v. Dingley, both by the adjudicator and on appeal and land registry practice has reverted to the position that an applicant is not required to establish that some proprietary right or interest of their own is affected in order to make an application to alter the register. Provided that the registry is astute to deal with frivolous applications, and that the Adjudication system is not overrun by consequential appeals, this is a welcome clarification.
Registered lordship titles: a ghostly guarantee
After extensive analysis and a detailed historical survey, deputy adjudicator brilliant in the substantive hearing from which the present appeal was made, determined that Mr Burton and Miss Bamford could not establish any pre-registration right to the lordship title. It had not been conveyed to them, nor had they had succeeded to it by adverse possession (incorporeal hereditaments being unable to be adversely possessed), nor was title acquired by prescription (no evidence and Quia Emptores 1290 intervenes to prevent the grant, fictional or otherwise, of a new lordship), nor was there an estoppel claim (inter alia, no detrimental reliance). In all likelihood, the lordship had become extinct as an independent hereditament around the seventeenth century and had reverted to the Crown or Duchy of Lancaster as feudal overlord. Consequently, their registration as proprietors was “a mistake” within Schedule 4 para. 5 to the 2002 Act, giving the registrar the ability to order rectification of the register by closing the lordship title, which he duly had done. There was no appeal on this point – but the decision of deputy adjudicator brilliant illustrates important aspects of the rectification process and, perhaps surprisingly, that state guarantee of title is relative according to the type of title held.
Once the “mistake” had been...
