This week in our regular look at post-completion issues, Priscilla Sinder and Maria Hardy from the PCC Education Hub explain how to make applications to alter the register. The post-completion experts share insight and advice every Tuesday; if you have any questions related to post-completion you’d like them to answer, email press@todaysconveyancer.co.uk.
One of the main purposes behind HM Land Registry is to provide an accurate and definitive register of legal interests affecting land in England and Wales, which is supported by section 58(1) of the Land Registration Act (LRA) 2002.
It states:
“If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration.”
However, this conclusiveness is subject to a possibility of altering a title register under section 65 of and Schedule 4 to the LRA 2002.
In this article we shall provide pertinent points when considering whether an application to ‘alter’ the current title register will be successful.
Alteration of a title register
When considering whether to make an application to HM Land Registry for alteration to the current register, paragraph 2 schedule 4 of the LRA 2002 provides the court to make such a determination only if the alteration is to:
- Correct a mistake,
- Bring the register up to date, and/or
- Give effect to any estate, right or interest excepted from the effect of registration.
For the purposes of this article, we shall discuss the first two points.
Paragraph 5 Schedule 4 of the LRA 2002 states a registrar has the same powers to alter a register as the court does with an additional ability to remove a superfluous entry.
If a proposed alteration does not fall under any of these purposes, then an application for alteration will fail.
Alteration pursuant to a court order containing an order to alter
Paragraph 2(2) of Schedule 4 of the LRA 2002 states that the registrar is under a duty to give effect to an order of the court for alteration when served upon him, and the only way in which to give effect to this order is to make an application under rule 127(2) of the Land Registration Rules (LRR) 2003.
The court order must meet the requirements set out in rule 127(1) of the LRR 2003 meaning it must:
- State the affected title number,
- State the alteration to be made, and
- Direct the registrar to make the alteration.
Only if these conditions are met is the registrar under a duty to give effect to the court order when served upon him.
Alteration pursuant to a court order not containing an order to alter
If the court order does not contain an order to alter the register, the registrar is not under a duty to give effect to the order as the conditions in rule 127 (1) LRR 2003 have not been met.
However, there is still a possibility to make an application for alteration under rule 129 of the LRR 2003, which is based on evidence. The main question here is what supporting evidence can be shown to the registrar to alter the register. The test to be determined is a balance of probabilities that the alteration sought is justified.
The purposes for alteration under Schedule 4 to the LRA 2002
Alterations to correct a mistake:
In identifying there is a cause for an alteration you will need to understand the purpose of why an alteration is being made.
This stems from the word ‘mistake’ defined at paragraph 11(1) of Schedule 8 to the LRA 2002 as:
“…, references to a mistake in something include anything mistakenly omitted from it as well as anything mistakenly included in it.”
Thus, the mistake is not a creation in the conveyancing process, rather it is something that should not have or indeed should have been included on the register.
To give further weight to this important word ‘mistake’ is to understand what then a void and voidable disposition is.
A void disposition upon its creation is not valid and therefore cannot affect the legal title, this therefore is a mistake defined under schedule 4 of the LRA 2002. Whereas a voidable disposition is valid and therefore is subject to rescission by the courts. A voidable disposition brings the register up to date.
To put the above in context one looks to the case of NRAM Ltd v Evans & Ors [2017] EWCA Civ 1013.
In this case form e-DS1 was mistakenly lodged by the bank and HM Land Registry acted upon this.
The Court of Appeal had to consider whether the subsequent alteration which was to give effect to the High Court order to re-register the bank’s legal charge was a mistake or to bring it up to date. Was the removal of the e-DS1 a mistake, so as to be a void disposition?
In handing down his judgment Kitchen LJ said:
“Such a voidable disposition is valid until it is rescinded and the entry in the register of such a disposition before it is rescinded cannot properly be characterised as a mistake. It may be the case that the disposition was made by mistake but that does not render its entry on the register a mistake, and it is entries on the register with which Schedule 4 is concerned.“
This clearly identifies that a mistake cannot be rescinded at a later time. A mistake is one that should not appear (or appear) whatever the circumstances of the case, but it simply cannot be rescinded.
In the case the registrar was ordered to reinstate NRAM’s legal charge to bring the register up to date in accordance with paragraph 2(1)(b) of Schedule 4 of the LRA 2002.
When making an application to bring the register up to date is to reflect a change in the true circumstances regarding a registered title, for example a name change.
Conclusion
Defining what a mistake is and what it means to bring the register up to date provides two very different results in the completion of registration; the former having no legal effect on the register, and the latter having a legal effect but reflecting a change in circumstances.
A mistake is a void disposition and does not have an effect in the conveyancing process, therefore if a case is deemed to be a ‘mistake’ by virtue of HM Land Registry’s practice guide than it is best practice to refer the matter to the litigation team as the situation will explore a more litigious nature.
A mistake is not comparable to a mistake in the conveyancing process and case law offers a clear understanding of this.
Source of material: Practice guide 83: alteration
Licence: This content is available under the Open Government Licence v3.0
About the authors
Priscilla Sinder qualified as a solicitor in 2005 and began her career in private practice. She moved into an in-house role soon after qualification and was appointed as manager of residential conveyancing and then head of post-completion. With the diverse experience obtained she gained a role as a partner of a boutique property firm in central London, leading to her final role as a practicing solicitor in a large nationwide conveyancing firm as a director. Throughout her career she always noticed post-completion departments lacked resources and the attention they deserved. In a bid to change this, the seed for PCC was planted in 2017 where Priscilla embarked on a journey to change the way post-completion was viewed by the industry. This then gave rise to the birth of the Hub in 2024. Priscilla is also the author of Client Care in Conveyancing and co-author of Post-completion: A Conveyancer’s Guide to Process, Risk and Compliance, 1st Edition, published by the Law Society.
Maria Hardy is the company trainer and technical specialist at the PCC Education Hub. She has 20 years’ experience in the residential conveyancing profession, the majority of which has been spent focusing on post-completion duties. Maria started her career in 2005 after completing her LLB at the University of Newcastle upon Tyne. Prior to working at the hub, her early career was spent working in professional negligence, and from 2014 to 2023 Maria was head of post-completion and the compliance officer for a large residential conveyancing firm. She then became manager at PCC from 2023 – 2024. Maria’s vast experience allows her to specialise in post-completion, risk, compliance and training.
