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PROPERTY: Land Registration: meaning of “mistake” permitting alteration of the register

Land Registration Act 2002, Sch. 4, para. 2(1)(a), enables the court to make an order altering the register to correct a mistake. Was the registration of a person as proprietor of a property, giving effect to a vesting order obtained on the basis of forged documents, a “mistake” for these purposes?

No, said the Court of Appeal in Antoine v Barclays Bank UK Plc [2018] EWCA Civ 2846.

J was the registered proprietor of a property. T obtained an order vesting the property in him and entitling him to be registered as proprietor. On the basis of that order, T was so registered. T then granted a legal charge over the property to the First Respondent (R1). The charge was also registered.

A (J’s executor) demonstrated that T had obtained the vesting order on the basis of forged documents and obtained an order setting aside the vesting order. A sought an order that the register be altered, on the basis that T’s registration as proprietor was a mistake, and an order to delete the registration of R1’s charge.

The Court of Appeal held that whether an entry in the register was a mistake had to be judged at the time that the entry was made. Furthermore, the mistake had to be as to the state of the register and not the underlying disposition. A distinction could be drawn between void and voidable dispositions.

A void disposition is one which, in law, never took place and therefore should not be entered on the Register. Registration of a forged transfer would be a mistake at the time of registration, as there would be no disposition to register.

A voidable disposition, however, is valid until set aside. There is a disposition to register and no mistake is made when registering it. If the disposition is subsequently set aside, it does not render the entry a mistake retrospectively.

T’s registration as proprietor was based solely on the vesting order, which effected the disposition and conferred title on him independently of the underlying documents. Registration on the basis of a court order was akin to the position in relation to a voidable transaction. Even if A was entitled to have the order set aside as of right, the order remained valid until set aside. Accordingly, there was no mistake at the time of registration. As such, R1’s charge would remain.

Winston Jacob / 28th Jan 2019


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