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Boundaries – rectification |
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The LR has power to alter the register to correct a boundary error, but
this can be refused if there are ‘exceptional circumstances’ that justify
not altering the boundary. A recent case illustrates how this can work. A
home owner had built a garage on a strip of land that was shown on his
filed plan as being included in his registered title.
In fact, the boundary
was wrong and the council owned the land. But, the home owner would
have an arguable defence if the council sought a mandatory injunction
for the removal of the garage (either proprietory estoppel because of
delay, or because damages would be an inadequate remedy).
The council did not apply for a mandatory injunction but instead applied
to the registrar for alteration of the boundaries. It argued that whether or
not the garage was likely to be removed was irrelevant to the legal
question of whether the register should be altered to reflect the correct
boundary line. However, the LR adjudicator refused to alter the register,
on the basis that there were ‘exceptional circumstances’. The High Court
agreed, taking the point that altering the boundary by itself would achieve
nothing – there was no point in altering the register because it would not
make the plan more accurate. The real question was whether, in practice,
the council would ever be able to recover the disputed strip. Given the
difficulty of doing that, it was not appropriate to alter the register.
Clearly, this is an unusual case. Perhaps the real lesson for practitioners
is not to solely rely upon an application to the LR for alteration of the register; it may well also be prudent to make an application to the court.
See commentary on Derbyshire CC v Fallon [2007] EWHC 1326 (Ch) in
[2007] SJ 1052.
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September 2007 |
