An interesting appeal was recently heard in the Upper Tribunal (Lands Chamber), concerning first registration where there is a direct conflict between clear words in the conveyance and a clear plan on which land is “more particularly delineated”. This decision is only the second reported case in this jurisdiction in which the general rule has not prevailed.

Background

In Dunlop v Romanoff [2023] UKUT 200 (LC), Mr Dunlop applied to HM Land Registry to be registered as a proprietor of unregistered land adjoining his property known as Lunsford Farm. The application land was a country lane adjacent to Mr Dunlop’s farm. The Dunlop family had occupied Lunsford Farm since 1888 (as tenant farmers originally) and purchased the land in 1918. The Conveyance at the time of purchase clearly included the application land, however, the plan excluded it.

Decision in First Tier Tribunal

Mr Romanoff (respondent) the proprietor of a neighbouring property objected to the application, which was then referred to the First-tier Tribunal (FTT) pursuant to section 73(7) of the Land Registration Act 2002. The FTT directed the registrar to cancel the application for registration based on the general rule, which states that where a plan more particularly delineates the land conveyed and either the wording is unclear or the wording is clear but inconsistent with the plan the plan will generally, or normally, prevail. Mr Dunlop subsequently appealed that decision.

Decision in Upper Tribunal on 29 August 2023

Mr Matthew Mills representing Mr Dunlop successfully persuaded Judge Elizabeth Cook in the Upper Tribunal to overturn the original decision.

Mr Mills cited Wesleyvale Limited v Harding Homes (East Anglia) Limited [2003] EWHC 2291 (Ch), Judge Elizabeth Cooke stated that although Wesleyvale concerned easements, the case “demonstrates that where there is such a conflict, as there is in the present appeal, the plan does not have to prevail.” But she would have to decide “where there is anything to take the case outside general rule”.

In order to make said decision, Judge Cook stated that there are two general principles of great assistance:

1. The court can look at extrinsic evidence where the conveyance does not tell the full story.
2. As per the Supreme Court’s judgment in Wood v Capita Insurance Services Limited [2017] UKSC 24 if in doubt, the court is to prefer the construction that makes business common sense.

On the day, both these principles favoured Mr Dunlop, and it was held that the written description prevailed, and the Dunlop’s did originally purchase the land in 1918.

Aggravating Factors

Given that HM Land Registry was established to register the ownership of land and property in England and Wales but do not, with specificity, provide confirmation regarding the exact position of boundaries by reference to their own plans (as per General boundaries rule S60(2) Land Registration Act 2002), this does create a grey area with regards to boundary lines. In addition, human error is another contributing factor when considering the omission of areas of land during the first registration process. Land Registry surveyors could mistakenly plot land contrary to the original intention of the parties. It is also plausible for there to be an overlap of these aggravating factors, meaning a title is created that is not reflective of the original intention or price paid.

Conclusion

The subsequent knock-on effect of the aggravating factors (which are non-exhaustive) could manifest itself in the form of lengthy legal disputes where there is an objection, or even non-valid objections to registration being considered by the Courts or the Tribunal (where there is no existing evidence, to the contrary).

Given the Dunlop decision, there are potentially direct legal consequences of the retention of old deeds, as the Tribunal has allowed an exception to the general rule that where a plan more particularly delineates the land conveyed and either the wording is unclear or the wording is clear but inconsistent with the plan the plan will generally, or normally, prevail. In the circumstances, it makes sense to keep hold of old deeds as you never know when they might be of use.