Land

Register - application for rectification - declaration as to boundary of disputed land- registered proprietor in possession of disputed land - special weight to be given to that factorKingsalton Ltd and anor v Thames Water Developments Ltd and others: CA (Lords Justices Peter Gibson, Arden and Sir Christopher Slade); 19 January 2001The first and second claimant disputed ownership of a strip of land bordering the defendants' registered land.

The judge made declarations as to the boundary between their registered land and that of the first defendant.

He ordered rectification of the land register to give effect to those declarations.

The first defendant appealed on the ground that the judge erred in exercising his discretion in ordering rectification against the defendants as registered proprietors in possession.Kim Lewison QC and Timothy Fancourt (instructed by Ashurst Morris Crisp) for the appellants; David Elvin QC and Timothy Morshead (instructed by DLA, Birmingham) for the respondents.Held, allowing the appeal, that although there was no definition of possession for the purposes of section 82 of the Land Registration Act 1925, it was clear that a party must be taken to have possession on registration of the title to the disputed land unless and until dispossessed; that, consequently, the judge had to exercise his discretion under section 82(1) on the basis that the defendants were in possession; that although the discretion was unfettered the judge had to have regard to the policy of the 1925 Act in favour of the proprietor in possession of registered land being allowed to keep his title, the party seeking rectification being left to take the indemnity provided by the Act; and that, accordingly, since the judge had erred in the exercise of his discretion the court would exercise it afresh and decline rectification of the register.