The First-tier Tribunal (FTT) rectified a “legal nonsense” by prioritising decades of physical possession over a technical boundary entry that had mistakenly sliced through a permanent building.
Facts:
This case involves a boundary dispute between the owners of No. 116 (the applicants) and No. 114 (the respondents). In 1988, No. 116 was redeveloped to include two shop units and three first-floor flats. As part of this work, a substantial brick-and-tile external staircase was built to provide access to the flats. This structure was enclosed, carpeted, and lit, and has been used exclusively by the owners and tenants of No. 116 since its completion. A low brick retaining wall was also built at the same time.
In 2017, the respondents, Dr. and Mrs. Wade, successfully applied to HM Land Registry to have the boundary “determined”. Because the applicants (Mr. and Mrs. Thomas) did not receive the notice—due to it being sent to a shop unit where a tenant reportedly discarded their mail—the application was granted in default. The “determined boundary” resulting from that application was a straight line that literally sliced through the staircase structure belonging to No. 116. This created a legal absurdity whereby a portion of the building’s staircase and the land beneath it technically belonged to the respondents’ title at No. 114.
The applicants eventually discovered the change and applied to alter the register under Schedule 4 of the Land Registration Act (LRA) 2002, arguing that the 2017 entry was a “mistake”.
Decision:
The FTT found that the 2017 determined boundary was indeed a mistake. Under Paragraph 6(3) of Schedule 4, because the respondents were not in possession of the land under the staircase, the application to rectify the register “must be approved” unless exceptional circumstances exist. Finding no such circumstances, the FTT moved to cancel the determined boundary. The boundary will now revert from a “determined boundary” to a “general boundary”.
The Judge found that the applicants had, in fact, acquired the land under the staircase by adverse possession long before the 2017 boundary application. Since the staircase was built in 1988 and the land was unregistered at the time, the applicants required only 12 years to strip the original owner of their title.
The FTT applied an objective test for what constitutes a “mistake” under Schedule 4 of the LRA 2002. The Judge noted that the respondents’ 2017 application was “conspicuously silent” about the fact that their proposed boundary line sliced through a massive brick building. Therefore, the resulting entry was a legal error.
Under Schedule 4, Paragraph 6, if a mistake is proven and the respondents are not in physical possession of the disputed land, then the Court must correct the register unless there are “exceptional circumstances”.
Implications:
This case serves as a stern reminder that the Land Register is not always a perfect reflection of ownership. The ruling confirms that if a boundary is “determined” based on a default, it can still be overturned years later if it contradicts the physical facts on the ground. Even under the modern LRA 2002, the old rules of adverse possession (from the Limitation Act 1980) remain a powerful tool through which to fix boundaries where permanent structures have been built on unregistered land.
By allowing a boundary to be drawn through a building, the Land Registry had created a “legal nonsense”. This case serves as a cautionary tale for property owners that they must keep their “address for service” up to date on the register.
The applicants almost lost a slice of their building because their address on the title was a shop they no longer occupied. The implication is clear – owners of rental or commercial properties must ensure that the Land Registry has their current residential or solicitor’s address.
