The HM Land Registry Day List – Where real time meets Judicial power to act retrospectively

Summary

The High Court retains control of the Day List of applications at the Land Registry. Retrospective reinstatement can be ordered but ordinarily will not be where a third party interest has since arisen.

Background: The Statutory Framework

The Chief Land Registrar (the “Registrar”) keeps the Day List, a real time record of the applications he has received¹. Under LRR 15 applications are taken to have been made on the date they are entered on the Day List. Successful applications will be entered on the register with priority over all entries made after that date. The obvious fairness is that anyone who undertook a priority search after that date would have notice of the application.

A disputed application is referred to the Adjudicator to H M Land Registry (the “Adjudicator”). The Adjudicator has the power (either upon the determination of the substantive application or as a sanction²) to direct the Registrar to allow or cancel the application³. However, since direction by the Adjudicator can be appealed to the High Court, it is not necessarily the end of the matter⁴.

The Problem

In most cases the system functions perfectly well. However, where the application is cancelled (and therefore removed from the Day List) and the matter is appealed problems arise. If the appeal succeeds, can the judge direct the Registrar to reinstate the application to the Day List? Upon what date is the restored application taken to have been made? What happens to the third party who acquired an interest in the property while the application was cancelled and not on the Day List?

Although these issues may seem academic, the Day List date may be extremely important to the parties involved. It may significantly affect the priority of charges entered during the period while the application was cancelled. Conversely the original applicant, through no fault of his, may be deprived of substantially the whole benefit of his interest in favour a newly interested third party/chargee.

Neither the applicant or the third party would have a right to be compensated for their loss by the Registrar since being outside the circumstances set out in Schedule 8 to the Land Registration Act 2002.

Those were the issues that arose in Franks v Bedward⁵.

The Franks’ Dilemma

Mr and Mrs Franks made an application to be registered as owners of a strip of land located within the Bedwards’ title (“the Disputed Land”) on the grounds of adverse possession. Following a series of errors and mishaps the Franks breached an Unless Order made by the Adjudicator. The Adjudicator applied the sanction directing their application be cancelled.

The Franks appealed the Adjudicator’s decision in person to Briggs J who upheld the appeal and directed that the application be restored to the Day List. However, in the intervening period, two third parties registered charges over the Disputed Land.

The Registrar refused to reinstate the Franks’ application with effect from the day upon which it was originally made, instead requiring the Franks to issue a new application (and thereby lose their priority). The Franks appealed again to Briggs J.

The Registrar contended that it was not possible to amend the Day List as it was a real time record. Further, it was said, the whole scheme of the Land Registration Act 2002 operated to protect the priority of third parties whose search of the Day List would not have shown a live application. The Registrar’s stance was the court could either direct the Franks to make a fresh application or reinstate the existing application with effect from the date of reinstatement (therefore losing priority).

The alternative approach was that the High Court had the power to properly reverse the consequences of the Adjudicator’s order including the power to restore the application from its original date.

Briggs J concluded that he had the power to direct the restoration of the application with effect from its original date. However, he required notice to be given to the third parties affected by his order in order to allow them to apply to vary it should they wish to do so. The Registrar appealed.

A majority of the Court of Appeal agree with Briggs J. They held that it was possible to make changes to the Day List which operate retrospectively⁶. To avoid injustice to the third party, however, the High Court would not ordinarily order retrospective reinstatement where a third party’s interest had arisen in the meantime.

What Does It All Mean?

It is suggested that parties who face an order by the Adjudicator concerning the cancellation of an application to the Registrar should bear the following points in mind:

• The Adjudicator has power to stay the effect of his order⁷. If you are considering an appeal then it is sensible to request a stay.
• If no stay is obtained then any appeal should be brought as quickly as possible,
• If the appeal court reverses the Adjudicator’s decision the court has the power to reinstate the application retrospectively.
• If a third party interest has arisen in the meantime, the court will not ordinarily reinstate the application retrospectively or, if it does, may give the third parties an opportunity to apply and make submissions about the decision.
• It is worth examining the facts of your case, however, to see if there is anything that takes it out of the ordinary and means that the restored application should take priority over the third party interest.

1 See Land Registry Rules 10 – 12
2 AR 55
3 See Adjudicators Rule 41
4 Land Registration Act 2002, s 111
5 [2005] EWCA Civ 772
6 A key element of their reasoning was the Registrar’s concession that he already did this to correct administrative mistakes, although not where it would affect third parties
7 AR 45

Article by Philip Fellows