The Registration of Title Act 1964 established the Land Registry system for maintaining a record of ownership of land in this country. All new transfers of land must be registered with the Land Registry.

The Registrar of Titles is appointed by the Government to run the Land Registry and she has the authority to summons any person before her in relation to the registration of any title. Similarly, she can summons any person with possession of a map or survey and can examine such persons on oath.

The register of titles maintained by the Land Registry is, in the first instances, conclusive evidence of the title of the listed owner.

We recently came across a case where a bank had erroneously provided a deed of discharge for a mortgage or charge registered on a borrower’s title in the Land Registry, thereby cancelling the charge. This was processed by the bank in error and had the effect of removing the bank’s security over the property. The question arose as to how to rectify this error.

The solution is contained within Section 31 of the Registration of Title Act 1964 which provides that the Court shall have jurisdiction where there is actual fraud or mistake to make an order directing the register of titles to be rectified in such manner and on such terms as it thinks fit. It is the High Court that has jurisdiction for the purposes of the Act.

This should be a relatively straight forward procedural application on the basis of a mistake having been made which requires to be corrected. Provided no party is prejudiced by the rectification of the mistake and the mistake is genuine and not intentionally made, the Courts ought to look favourably on such an application.

In this particular case, Ms Justice O’Regan delivered a judgment finding that the equitable doctrine of mistake is applicable to the interpretation of Section 31(1) and the UK decision in NRAM plc v. Evans was quoted with approval where it quotes Lord Walker in Futter & Anor. v. Revenue and Customs [2013] UKSC who said at para 114:

“It does not matter if the mistake is due to the carelessness on the part of the person making the voluntary disposition, unless the circumstances are such as to show that he deliberately ran the risk, or must be taken to have run the risk, of being wrong… Nor need the mistake be known to (still less induced by) the person or persons taking a benefit under the disposition.”

And at para 128 he went on to state:

“In my opinion the same is true [the requirement of unconscionableness] of the equitable doctrine of mistake. The court cannot decide the issue of what is unconscionable by an elaborate set of rules. It must consider in the round the existence of a distinct mistake (as compared with total ignorance or disappointed expectations), its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected. The court may and must form a judgment about the justice of the case.”

Ms Justice O’Regan was therefore satisfied that the caselaw does not seek to limit the jurisdiction of the High Court in respect of mistake under Section 31(1) of the 1964 Act and she summarised the test in Futter as requiring that there be a causative mistake of sufficient gravity, the mistake being as to either the legal character or nature of the transaction to some matter of fact, or law, which is basic to the transaction. In these particular circumstances, she was therefore satisfied that there was a mistake that was reflected on the register of titles, that no undue prejudice would be caused by correcting it, and that it should therefore be rectified.

Conclusiveness of register.
31.—(1) The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land; but nothing in this Act shall interfere with the jurisdiction of any court of competent jurisdiction based on the ground of actual fraud or mistake, and the court may upon such ground make an order directing the register to be rectified in such manner and on such terms as it thinks just.

(2) The validity of registration of ownership of unregistered land shall not be affected by reason that the person thereby shown to be registered as owner was then dead and any person who proves to the satisfaction of the Registrar that he is entitled to the land may be registered as owner thereof.

Rectification of errors in registration.
32.—(1) Where any error originating in the Land Registry (whether of misstatement, misdescription, omission or otherwise, and whether in a register or in a registry map) occurs in registration—
(a) the Registrar may, with the consent of the registered owner of the land and of such other persons as may appear to be interested, rectify the error upon such terms as may be agreed to in writing by the parties;
(b) the court, if it is of opinion that the error can be rectified without injustice to any person, may order the error to be rectified upon such terms as to costs or otherwise as it thinks just.
(2) Where an error is rectified in accordance with the foregoing provisions and the error also occurs in the land certificate delivered on the occasion of the registration, the Registrar shall issue a new land certificate in the prescribed form and cancel the old certificate and for that purpose may order any person having possession of the old certificate to deliver it to the Registrar.
(3) The issue of the new certificate shall be without prejudice to any claim of lien or other claims thereon, which shall attach to it as if it were the old certificate, and shall be on such terms as to costs as the Registrar thinks just.

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