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Topics
Land registration – Notice – Unilateral notice
Alternative Citations
[2013] EWHC 4095 (Ch)
Hearing Date
20 December 2013
Court
Chancery Division
Judge
Mr Justice Morgan
Representation
Michael Jefferis (instructed by Stephen Gisby & Co) for the claimant.
Christopher McNall (instructed by Kirwans) for the defendant.
Abstract
Land registration – Notice. The Chancery Division held that the court had an inherent jurisdiction to order the cancellation of a unilateral notice registered under the Land Registration Act 2002. Although the 2002 Act had replaced the Land Registration Act 1925, there was nothing in the scheme of the 2002 Act to suggest the inherent jurisdiction had been removed. The court held that it had the jurisdiction to make the order sought in the instant case, and that justice required that jurisdiction to permit the defendant to raise funds to defend the claim by way of an appropriate sale or an appropriate charge of the land.
Summary
The judgment is available at: [2013] EWHC 4095 (Ch)
The claimant was the defendant’s grandson. He made a claim in equity based on proprietary estoppel to the defendant’s farm, stating that the defendant and her late husband had promised him the farm and that the claimant had acted in reliance on those promises. He registered a unilateral notice under s 32 of the Land Registration Act 2002. The defendant made an application for an order of the court to cancel the unilateral notice. Her purpose in doing so was to sell or charge part of the property to meet the legal fees of defending the claim.
The defendant submitted that the court had inherent jurisdiction to cancel a unilateral notice registered under the Land Registration Act 2002.The issue arose as to whether the 2002 Act had abrogated or otherwise affected the jurisdiction. Consideration was given, among other things, to the Land Registration Act 1925.
The application would be allowed.
The court had an inherent jurisdiction to cancel notices registered under the 2002 Act (see [49] of the judgment).
It was the clear philosophy of the case law that the court should not allow the beneficiary of the notice to have the protection of the notice pending trial without the court considering the position of the registered proprietor and whether, and if so how, the proprietor should be protected pending trial. The inherent jurisdiction, recognised and developed by the courts in relation to vacation of cautions registered under the 1925 Act, applied. There was nothing in the scheme of the 2002 Act to suggest that the court’s inherent jurisdiction had been abrogated or otherwise affected by the 2002 Act. Further, there was no evidence to suggest that the earlier jurisdiction in its original form was incompatible with the 2002 Act (see [42], [49] of the judgment).
In the instant circumstances, it would be appropriate to regard the case as an appropriate one in which to restrain the defendant from disposing or charging the property. The court would approach the case as it would a case where a claimant claimed an injunction to prevent a defendant interfering with the claimant’s property rights. The matter would come down to the balance of injustice of deciding the application against the claimant were he to establish his claim, and deciding the application against the defendant if the claimant was later to fail to establish his claim (see [50], [57] of the judgment).
The court had the jurisdiction to make the order sought. Justice required the court to exercise that jurisdiction to permit the defendant to raise funds to defend the claim by way of an appropriate sale or an appropriate charge of the land, or a part of it (see [58] of the judgment).
Stein v Stein [2004] All ER (D) 144 (Dec) applied; Heywood v BDC Properties Ltd (No 2) [1964] 1 WLR 971 considered; Clearbrook Property Holdings Ltd v Verrier [1974] 1 WLR 243 considered; Tiverton Estates Ltd v Wearwell Ltd [1974] 2 WLR 176 considered; Fitzgerald v Williams, O’Regan v Williams [1996] 2 WLR 447 considered.
