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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Diep v Land Registry [2010] EWHC 3315 (Admin) (03 December 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/3315.html Cite as: [2010] EWHC 3315 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
MR
JUSTICE
MITTING
____________________
TRUONG DIA DIEP | Appellant | |
v | ||
LAND REGISTRY | Respondent |
____________________
WordWave International Limited
A Merrill
Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
Mr
M
Paget
(instructed by Young & Co) appeared on behalf of the Appellant
Mr
T
Morshead
(instructed by Treasury Solicitors) appeared on behalf of the Respondent
____________________
Crown Copyright ©
"(1) This section applies to any unregistered legal estate which is an interest of any of the following kinds—
(a) an estate in land...
(2) Subject to the following provisions, a personmay
apply to the registrar to be registered as the proprietor of an unregistered legal estate to which this section applies if—
...
(b)he is entitled to require the estate to be vested in him."
"(1) In the case of an application for registration under this Chapter of a freehold estate, the classes of title with which the applicantmay
be registered as proprietor are—
(a) absolute title,
(b) qualified title, and
(c) possessory title;
and the following provisions deal with when each of the classes of title is available.
(2) A personmay
be registered with absolute title if the registrar is of the opinion that the person's title to the estate is such as a willing buyer could properly be advised by a competent professional adviser to accept.
(3) In applying subsection (2), the registrarmay
disregard the fact that a person's title appears to him to be open to objection if he is of the opinion that the defect will not cause the holding under the title to be disturbed.
...
(5) A personmay
be registered with possessory title if the registrar is of the opinion—
(a) that the person is in actual possession of the land ... and
(b) that there is no other class of title with which hemay
be registered."
"(2) Registration with absolute title has the effect described in subsections (3) to (5).
(3) The estate is vested in the proprietor together with all interests subsisting for the benefit of the estate.
...
(7) Registration with possessory title has the same effect as registration with absolute title, except that it does not affect the enforcement of any estate, right or interest adverse to, or in derogation of, the proprietor's title subsisting at the time of registration or then capable of arising."
"62 Power to upgrade title
(1) Where the title to a freehold estate is entered in the register as possessory ... the registrarmay
enter it as absolute if he is satisfied as to the title to the estate.
...
(4) Where the title to a freehold estate in land has been entered in the register as possessory for at least twelve years, the registrarmay
enter it as absolute if he is satisfied that the proprietor is in possession of the land."
"6.4 Class of title
Generally, where the application is in respect of unregistered land, we will only register the squatter with an absolute title if we are satisfied that their adverse possession has barred the owner's title. Usually this will only be so where:
— we know what that title is, and
— we are satisfied that the owner has consented to, or could have no valid grounds for objecting to, the squatter being registered as proprietor of the land.
In any other case we will only register with a possessory title..."
"It is not the Registry's practice to grant absolute title in a case such as this. A title founded on possession is, by its nature,more
susceptible to challenge than one found on documentation. Although Railtrack's objection was deemed groundless, they have not consented to your client being registered as proprietor. Accordingly, no better class of title than possessory title can be granted."
"It is very rare indeed for any better class of title than possessory to be granted where the applicant's title is founded on adverse possession since such a title is by its very naturemore
susceptible to impeachment than those cases where a good documentary title has been deduced. Without evidence of the dispossessed owner's title, the tenure of the land cannot be ascertained with complete certainty. If, for example, a head leasehold term is vested in the dispossessed owner, time would not run against the freehold reversioner until the determination of that lease. In addition, the documentary owner
may
be under a disability and, quite apart from the question of subsisting leasehold estates, there
may
be circumstances where interests in remainder have not yet fallen into possession. In such circumstances, those inchoate rights to ultimate possession would not have been defeated by a squatter. Also, the very nature of acts of possession relied upon
may
be challenged, for example by allegations that the possession was permissive and not adverse."