Under the Land Registration Act 1925 there was

Under the Land Registration Act 1925 there was forethought for rectification of the Register in cases where
there was a mistake on the appearance of the Register. There was also an arrangement of statutory indemnity
for any purchaser who suffered loss by reason of the decisive nature of the register.11 The provision for
change to the Register in the Land Registration Act 2002, under Schedule 4 paragraph 2 LRA 2002, which
states that the court may make a demand for alteration of the Register for the purpose of; correcting a
mistake, bringing the Register up to date, or giving effect to any estate, right or interest excepted from the
effect of registration. Rectification still occurs, but only one route of altering the Register will be genuine if
it involves the correction of a mistake and prejudicially affects the title of a registered proprietor.

Rectification is defined under Schedule 4 paragraph 1 LRA as the process in which mistakes in the register
are corrected. If anyone occurs loss as a result of rectification or a result not to rectify the register, they are
entitled to be indemnified by the Registry. Paragraph 1 Schedule LRA 2002, states that a person can be
indemnified by the Registrar if they occur loss by with a rectification or a mistake whose correction would
consist of a rectification but rectification does not actually occur. However, indemnity is not payable where
the alteration is not or would not amount to rectification. Examples of rectification of mistake can include;
forgery of a transfer to the registered proprietor, voidable dispositions attained by fraud and the position of
third parties taking from the original dispone.12

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A definition of mistake is not provided in the LRA 2002 but it can be assumed that there will be a mistake
whenever the registrar; makes any entry in the register that they had no intention of making, makes an entry
in the register that would have been in the form in which it was made or deletes an entry that they would not
have deleted; had they known the true state of affairs at the time of the entry or deletion13. Basically, the

9 Judith Bray, Unlocking land law (Routledge 2016)
10 ibid n.9
11 ibid n.9
12 Timothy Harry and David Fox, Rectification and Indemnity: General Principles
13 Megarry and Wade, Law of Real Property, 7th ed, para 7-133

question of mistaken registration can be determined in the facts of the case when the entry was made. If the
discovery of the mistake was determined at the time of registration, it could possible not constitute a mistake
to register a voidable disposition which at the time of registration, was not withdrawn. Nonetheless due to a
lack of definition, there has been uncertainty when it comes to the scope of mistake. Due to their registered
status, the registered proprietor has complete power to dispose their land in any way that the law permits.
This will however differ depending on the type of interest that the owner has on the land14. A register
proprietor would have complete power over registered land even if the registration of them as the proprietor
of the land was made in mistake. The previous registered proprietor thus only has one chance to rectify the
register. A disposition made on the authority of the registered proprietor’s powers of disposition will not
amount to a mistake which can be rectify, for example the position of third parties taking from the original
disponee.

Rectification cannot occur if the registered proprietor is in possession of the land and does not consent15.
Possession is defined in the LRA 2002 as physically in the registered proprietor’s control16. In order for
there to be possession of the land, there must be a sufficient degree of exclusive physical custody and
control, however when relevant land seems to have been available for use or has been used as an open
entrance17, it will not amount to physical possession that is necessary. However, there are exceptions to this;
where the registered proprietor has by fraud or lack of caution caused or substantially contributed to the
mistake or where it would be unfair for any other purpose for the rectification to not be made. Walker V
Burton (2013) held that the burden of establishing an exception is on the applicant18. It is necessary to obtain
consent from the registered proprietor for rectification of the register as a correction of a mistake can
prejudicially have an impact on the registered proprietor’s title19. For instance, the correction of the mistake
can have an opposing impact of the value of a land, the value of a charge over the land, or even changes to
priority, which could cause unfairness within the law.

Nevertheless, there are some instances in when consent should not be required. In Bank of Scotland PLC V
Greville Development Co (Midlands) Ltd, the Court held the rule of being able to rectify the land register,
without the consent of all interest parties in order to correct any document accompanying an application for
registration if the mistake is of a clerical nature. The Court held that spelling errors, rearrangement of letters,

14 Sandra Clarke, Sarah Greer, and ra Clarke, Land law directions (3rd edn, Oxford University Press 2012)
15 Paragraph 6(2) Schedule 4 LRA 2002
16 LRA 2002 s131
17 Paton V Todd (2012)

18 Walker V Burton (2013)
19 ‘Practice guide 39: Rectification and indemnity’, (2002)
accessed 6 January 2017

names and numbers as clerical errors, as well as when a lawyer overlooks vital information that a party
intended to insert.

There has been concern about the currently law on how the register can be rectified from the Law
Commission. The concern arises where indefeasibility titles are compromised as there is currently no title
limit after which a title becomes immune from rectification if it has been registered under a mistake20. The
Commission has requested for ten years long stop from the mistake which means no rectification can occur
afterwards. Thus could arguably bring about certainty and protect the indefeasibility of titles.

In conclusion, the current law governing rectification works effectively when implemented and gives way to
a limited amount of issues. As Schedule 4 LRA brings a high level of certainty and decisiveness to the
Register it should not be amended or completely redrafted when it comes to when a registered proprietor can
consent to rectification or just to define the word “mistake”. Nevertheless, the Law Commission proposals to
introduce some constraints on the conditions to improve the Register should be taken into consideration.