Guidance

Practice guide 77: altering the register by removing land from a title plan

Updated 16 March 2020

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Introduction

1.1 ‘Statutory magic’ and general boundaries

Rule 5(1) of the Land Registration Rules 2003 provides that the property register of a registered estate must contain a description of the registered estate and that this must refer to a plan based on the Ordnance Survey map, the plan being known as the title plan. So the red edging on the title plan for a registered estate is part of the description of the freehold or leasehold estate.

Two fundamental provisions in Land Registration Act 2002 must be taken into account when dealing with a title plan.

The first provision is the section that carries forward from the Land Registration Act 1925 what is sometimes called “statutory magic”.

“58 Conclusiveness

(1) 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.”

As Law Com 271 explains (paragraphs 251 and 252), this subsection “preserves the fundamental principle that the register is conclusive as to the proprietor of a registered legal estate. In other words, a registered legal estate is deemed to be vested in the registered proprietor.” But “clearly this does not prejudice the right…to apply for the register to be altered if this is appropriate…”

The second provision is the section that carries forward the “general boundaries rule”.

“60 Boundaries

(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section.

(2) A general boundary does not determine the exact line of the boundary.”

The intention of those drafting the Land Registration Act 2002 was that the general boundaries rule as it was under the earlier land registration legislation should be unchanged (Law Com 271, paragraphs 9.9 and 9.11) and subsequent case law has assumed this to be the position (eg Drake v Fripp [2011] EWCA Civ 1279 at [20]). The rule was originally set out in the Land Registration Rules 1925 (which used the term “filed plan” rather than “title plan”).

“Rule 278

(1) Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan shall be deemed to indicate the general boundaries only.

(2) In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.

…. (4) This rule shall apply notwithstanding that a part or the whole of a ditch, wall, fence, road, stream, or other boundary is expressly included in or excluded from the title or that it forms the whole of the land comprised in the title.”

(The potential effect of paragraph (4) is significant. Consider the following. A developer’s title plan shows a private road running along the inside of part of the red edging. The developer sells off the land in parts until the red edging includes nothing but the road. The paragraph suggests that, as a result of the general boundaries rule, there is not necessarily any land at all within the developer’s registered title.)

The combined effect of sections 58 and 60 is this.

• Registration means that the proprietor has title to the legal estate even if the proprietor would not otherwise have had any title
• The legal boundaries of that legal estate are intended to be only indicated by the title plan rather than precisely defined (see, in particular, Lee v Barrey [1957] Ch 251 at 261). Hence the warning that appears on official copies of title plans: “This title plan shows the general position of boundaries: it does not show the exact line of boundaries.”

1.2 “Property disputes” and “boundary disputes”

The general boundaries rule means that removal of land from a title plan does not necessarily remove any land from the registered title.

Land within the scope of the general boundaries rule may be outside the registered title though within the red edging (or, equally, within the registered title though outside the red edging). Where it would be a mistake for land within the scope of the general rule to be in the registered title, then the registered title will be treated as not extending to this land. So, in Drake v Fripp [2011] EWCA Civ 1279, Lewison LJ stated (at [20]) that the registration of the proprietor “left the position of the precise boundary undetermined. Once the position of the precise boundary had been (retrospectively) determined by the adjudicator and the judge, it could be seen that [the proprietor] never had title to the disputed strip. [Counsel’s] proposition that [the proprietor] has ‘lost’ 1½ acres of land is thus either question begging or wrong.”

Thus removing land which is within the scope of the general boundaries rule from the title plan does not mean that any land is being removed from the registered title; rather it is merely producing “another general boundary in a more accurate position than the current general boundary” (Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) at [26]). The courts characterise a dispute over this type of alteration as a “boundary dispute”.

On the other hand, where the land is outside the scope of the general boundaries rule, removal of that land from a title plan means that it is being removed from the registered title. The courts characterise a dispute over this type of alteration as a “property dispute”.

In some situations there is not any real difficulty in classification. Take Knights Construction (March) Ltd v Roberto Mac [2011] 2 E.G.L.R. 123, a case decided by the Adjudicator to HM Land Registry. The Salvation Army applied for first registration of land which was the site of an old chapel. The title deeds had been destroyed in the Second World War and so its Chief Surveyor swore a statutory declaration to the effect that the land had been conveyed to William Booth in 1888. He included within the red edging on the statutory declaration plan an area of land – the disputed land – which had never been in the Salvation Army’s ownership or possession. The application was completed. The registered title was then transferred to the defendant. The claimant was the unregistered owner of the disputed land and applied for its removal from the defendant’s title plan. The disputed land was of much the same size as the land that had been within the Salvation Army’s unregistered title. It was used for parking and other purposes by the tenants on land of the claimant’s which, like the chapel, adjoined the disputed land. The dispute was treated as a property dispute. This was the sort of situation that Lord Evershed MR presumably had in mind in Lee v Barrey [1957] Ch 251 when he said (at 261) that the test was whether the title plan was drawn such that the registered proprietor “got the wrong property”: if so, there was then a property dispute.

There may also not be too much difficulty where the case involves one of the examples given in rule 278 of the Land Registration Rules 1925. The case of Drake v Fripp [2011] EWCA Civ 1279 illustrates this. It involved a dispute over which of 2 potential boundary features – a Cornish hedge or a fence – marked the legal boundary between 2 properties following a sale of part of the land in an unregistered title. The boundary features were 4 or 5 metres apart. The land between them – the disputed land – came to about 1½ acres, although this was only about 1 per cent of the land that was agreed to have been conveyed. Title to the retained land and to the land conveyed had subsequently been registered. The title plan for the land conveyed suggested that it included the disputed land, but the Court of Appeal found that it had not in fact been included in the conveyance. The court decided that this was a boundary dispute. One of the factors it took into account (at [20]) was that section 60 was “in substance … the same as” rule 278 and paragraph (2) said in terms that one of the matters left undetermined was how far a boundary ran beyond a hedge, wall or fence.

However, the position can be more difficult. The case law to date suggests that the following may be indications that land within the red edging on the title plan falls outside the scope of the general boundaries rule and so within the registered title.

• the physical area of the land is significant relative to the land which is accepted as falling within the registered title (Drake v Fripp [2011] EWCA Civ 1279; Knights Construction v Roberto Mac [2011] 2 E.G.L.R. 123)
• the land is somehow physically distinguishable from the other land in the registered title and of particular importance to the registered proprietor (Paton v Todd [2012] EWHC 1248 (Ch); Parshall v Hackney [2013] EWCA Civ 240)

Neither of these characteristics seems to have been present in cases where land within the red edging has been treated as falling within the scope of the general boundaries rule and outside the registered title (Lee v Barrey [1957] Ch 251; Derbyshire CC v Fallon [2007] EWHC 1326 (Ch); Strachey v Ramage [2008] EWCA Civ 384; Drake v Fripp [2011] EWCA Civ 1279).

Any such possible indications from case law that land falls within or outside the scope of the general boundaries rule must, however, be treated with caution. The courts have said that the distinction between property disputes and boundary disputes is “a question of fact and degree” (eg Drake v Fripp [2011] EWCA Civ 1279 at [21]), a term which (in another context) has been explained as meaning that there are “no certain indicia the presence or absence of which is by itself conclusive” (Simmons v Pizzey [1979] AC 37 at 59).

1.3 Alteration and rectification

The Land Registration Act 2002 refers to “alteration” and to “rectification”. The register – which includes a title plan – can be altered for several purposes, one of which is the correction of a mistake (paragraphs 2(1) and 4 of Schedule 4 to the Land Registration Act 2002). Rectification is alteration that involves the correction of a mistake and prejudicially affects the title of a registered proprietor (paragraph 1 of Schedule 4 and paragraph 11(2) of Schedule 8 to the Land Registration Act 2002). All rectifications are therefore alterations but only some alterations are rectifications.

For the removal of land from the title plan to be rectification, the land concerned must not only be within the red edging on the title plan but also within the registered title. Otherwise the title of the registered proprietor is not being prejudicially affected. In other words, there must be a property dispute – or, as the application will not always lead to a dispute, the circumstances must be such that if there were to be a dispute it would be a property dispute. Alteration following a boundary dispute, or in circumstances where were there to be dispute it would be a boundary dispute, will not be rectification.

However, not every alteration in respect of a property dispute will be rectification. The statutory right for the rightful owner to apply for alteration of the register appears to operate as an overriding interest where that owner is in actual occupation of the land (Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] Ch 216 at [68] and [85]). Where a registered title is altered to give effect to an overriding interest, there is no prejudice to the registered proprietor as their title was always subject to the right and so the alteration does not amount to rectification (Law Com 271, paragraph 10.16). It would seem to follow from this – although there does not appear to be any case law directly on the point – that alteration on the application of a person whose right to alter has operated as an overriding interest will not be rectification. If the mistake in the title plan was made on first registration, the applicant or their predecessor in title would need to be in actual occupation, with the occupation continuing on any subsequent registrable disposition for valuable consideration; if the mistake was made some time after first registration and followed by a registrable disposition for valuable consideration, the applicant or their predecessor in title would need to be in actual occupation at that later point (sections 11(4)(b), 12(4)(c) and 29(2)(a)(ii) of the Land Registration Act 2002).

There are 2 main reasons why it matters whether or not the alteration constitutes rectification.

1.3.1 Proprietor in possession

Subject to 2 exceptions, rectification cannot take place if the registered proprietor is in possession of the land and does not consent (Paragraph 6(2) of Schedule 4 to the Land Registration Act 2002). “Possession” means “physically in [the registered proprietor’s] possession”, and land in the possession of a tenant, mortgagee, licensee or beneficiary is treated as being in the possession of the landlord, mortgagor, licensor or trustee (section 131 of the Land Registration Act 2002). Moreover, “possession” here is interpreted in the same way as it is in the context of adverse possession: there must be “a sufficient degree of exclusive physical custody and control” (Paton v Todd [2012] EWHC 1248 (Ch) at [60], where the land concerned “seemed to have been available for use, and/or used, as an unenclosed accessway” and this was held not to amount to the necessary physical possession).

The 2 exceptions are where: (a) the registered proprietor has by fraud or lack of proper care caused or substantially contributed to the mistake or (b) it would for any other reason be unjust for the alteration not to be made. The burden of establishing an exception is on the applicant (Walker v Burton [2013] EWCA Civ 1228 at [97]).

1.3.2 Indemnity

A person is entitled to be indemnified by the registrar if they suffer loss by reason of either (a) rectification or (b) a mistake whose correction would involve rectification but rectification does not take place (paragraph 1 of Schedule 8 to the Land Registration Act 2002). See practice guide 39: rectification and indemnity for further information about indemnity.

Indemnity is not payable where the alteration is not, or would not be, rectification. However, 2 points should be noted.

First, in non-rectification cases the registrar has a statutory discretion to pay such amount as they think fit in respect of any costs or expenses reasonably incurred by a person in connection with the alteration. The prior consent of the registrar is required before incurring these costs or expenses except where either it appears to the registrar that the costs or expenses had to be incurred urgently and it was not reasonably practicable to apply for consent, or the registrar has subsequently approved the incurring of the costs or expenses (paragraph 9 of Schedule 4 to the Land Registration Act 2002).

Secondly, in the exceptional circumstances of there having been an unreasonable and careless decision as to where to draw the red line, the registrar may treat the matter as an instance of maladministration and make a payment in recognition of that fault. The Independent Complaints Reviewer for HM Land Registry has described maladministration as a failure to carry out proper procedures or to meet published quality of service standards.

2. When an application can be made for alteration by the removal of land from a title plan

Despite the general boundaries rule, we try to show the land and its boundaries as accurately as possible, and we accept that there is a mistake in the register to the extent to which this has not been achieved. So if a person has evidence for thinking that the red edging on a title plan ought to be in a different place they may apply for the register to be altered.

The application is always for alteration. There is not a separate application for rectification.

The applicant for alteration does not have to show or even claim a proprietary interest in the land concerned. In particular, they do not need to be claiming ownership themselves. However, this does not mean that the applicant’s lack of an interest is necessarily irrelevant. In Walker v Burton [2013] EWCA Civ 1228 the alteration would have been rectification and the registered proprietors were in possession; one of the factors found to make it not unjust for the register being left unaltered was the applicants’ lack of any title to the land concerned (see [31] and [102]).

The applicant may be the registered proprietor seeking to remove land from their own title plan. The alteration may mean the land concerned is no longer shown as forming part of any registered title.

It seems settled that alteration – including rectification – can take place even if the registered title involved has subsequently been transferred (Paton v Todd [2012] EWHC 1248 (Ch) at [55]).

The case law to date appears to have involved only mistakes in the title plan originally made on first registration but the reasoning would apply equally to errors made on dispositions of registered land.

3. How to make an application for alteration

An application for alteration is made by completing form AP1 and sending it to us with evidence to justify the alteration (rule 129 of the Land Registration Rules 2003).

We recommend you send your application to the office for the administrative area in which your business is situated, see HM Land Registry address for applications.

Under the current Land Registration Fee Order, a fixed fee is payable for any application to alter the register. In some cases (in particular, if the error has been caused by HM Land Registry) the fee will be refunded (see HM Land Registry: Registration Services fees).

The evidence to justify the alteration should set out the basis of the claim that the red edging ought to have been drawn in a different place, and make clear where that is. In addition:

• the applicant should provide all the information that will be relevant in the event that the application proceeds as far as our classifying the dispute as a property or boundary dispute. In particular, information about the nature and use of the land concerned
• where it is possible that the registrar may classify the dispute as a property dispute, the applicant should state who has been in actual occupation of the land concerned and whether or not the applicant claims that their right to seek alteration has operated as an overriding interest
• the applicant should state whether or not the registered proprietor is in possession of the land

4. What happens once an application for alteration has been made

A broad outline of the process is set out in this process map. The following sub-sections explain the steps in the process.

4.1 The steps up to classifying as a property dispute or a boundary dispute

Once we have the necessary evidence and the fee due has been paid, we have to decide whether or not, subject to the results of a subsequent inspection of the land supporting the application, the applicant has shown on the balance of probabilities that there is a mistake in the title plan. This will involve consideration of the information sent with the application. It may well involve an examination of pre-registration deeds (if available) or subsequent transfers, or both. It might also mean looking at the position on the ground at the time of a conveyance or transfer (Cameron v Boggiano [2012] EWCA Civ 157) and so considering old Ordnance Survey maps, and historical information and documents held by HM Land Registry.

If it is thought that such a case has not been made out, the application will generally be cancelled. Occasionally it will be appropriate to seek confirmation or clarification of a point before proceeding with the application or cancelling it – we ‘raise a requisition’.

If we think that such a case has been made out, the land will almost always need to be inspected. This is arranged by us. The applicant or their conveyancer and the registered proprietor will be notified in advance.

If, after considering the results of the inspection (where an inspection has been carried out) and all the information which we think appropriate, we are still of the view that, on the balance of probabilities, there is a mistake in the title plan, we can proceed to the next stage.

4.2 How applications are handled once the classification is made

Where we think it is a boundary dispute, or that it is a property dispute but the right to seek alteration of the register has operated as an overriding interest, so that any alteration will not be rectification, we will contact the applicant or their conveyancer to inform them of this and ask for confirmation that we are to proceed with the application (unless it has been made clear in the application that the applicant also regards the matter as being a boundary dispute). If the necessary confirmation is given, the registered proprietor will be notified of the application.

Where we think it is a property dispute (and that the right to seek alteration of the register has not operated as an overriding interest), and so any alteration will be rectification, we then have to consider the registered proprietor in possession point: see Proprietor in possession.

If it is not apparent that the registered proprietor is in possession, we shall send them notice of the application.

If the registered proprietor does appear to be in possession, we can proceed with serving notice in the absence of the registered proprietor’s consent only if, on the evidence we have been provided with, it seems to be the case that (a) the registered proprietor has by fraud or lack of proper care caused or substantially contributed to the mistake or (b) it would for any other reason be unjust for the alteration not to be made. (We are not attempting to finally determine this point, but we need it to be established to this standard of proof because we serve notices only when we are satisfied that, in the absence of any objections, we can properly complete the application.) If it does not seem to be the case that (a) or (b) applies, and so we cannot proceed further with the application for alteration, the applicant may still be entitled to indemnity.

When notice of an application for alteration is given to the registered proprietor, it is also given to (i) the registered proprietor of any registered charge and (ii) if we have the person’s name and address, to any person who appears to be entitled to an interest protected by a notice, where that interest would be affected by the proposed alteration, unless the registrar is satisfied that such notice is unnecessary (rule 128(2) of the Land Registration Rules 2003).

Whether it is a boundary dispute or a property dispute, if the registered proprietor or anyone else objects to the application and it is not a groundless objection, the dispute – if it cannot be resolved – will be referred to the Land Registration division of the Property Chamber, First-tier Tribunal (section 73 of the Land Registration Act 2002). If there are no objections, or all objections are groundless, the alteration will be made: the land will be removed from the title plan and thus, in the case of rectification, from the registered estate.

Further information can be found in practice guide 37: objections and disputes: HM Land Registry practice and procedures and practice guide 39: rectification and indemnity. Note, in particular, the general point made in section 5 of practice guide 37 that all communications or supporting documents may be disclosed by us to the other party or parties involved, even if marked “confidential”.

Where the alteration would constitute rectification and the registered proprietor is not in possession, the alteration must be made where the registrar has power to alter, unless there are exceptional circumstances which justify not making the alteration (paragraph 6(3) of Schedule 4 to the Land Registration Act 2002). Where the alteration would not constitute rectification, the registrar has a discretion; the Court of Appeal has confirmed that in these alteration cases where there are such exceptional circumstances, the registrar can properly refuse the application (Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) at [29]).

An example of such exceptional circumstances can be found in Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch). The council applied to alter the register so that a strip of land 36 metres long and between 2 and 4 metres wide was removed from within the red edging on the defendants’ title plan. The pre-registration deeds showed that the strip was indeed part of the council’s adjacent land. The dispute was treated as a boundary dispute. The deputy adjudicator took the view that alteration would serve no practical purpose; the disputed land had by then been built on by the defendants and he thought the council might well be unable to obtain an injunction to prevent the defendants from continuing to trespass and to require them to remove the building. The High Court confirmed that he had been entitled to treat this fact that alteration would serve no practical purpose as constituting exceptional circumstances which justified not altering the registered title. As the deputy judge pointed out (at [37]), unless and until a court issued such an injunction, the register would only be made more accurate “in the limited sense of according with the [council’s] paper title”, which was “a purely nominal or theoretical one”, the defendants (and their successors in title) having “a de facto right to stay on the land”.

5. Things to remember

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