[2025] UKUT 144 (LC)

Paragraph 6(2) of Schedule 4 to the Land Registration Act 2002 provides a potent protection for the registered proprietor in possession of land. Unless he has caused or substantially contributed to the mistake by fraud or lack of proper care, or it would be for any other reason unjust for the alteration not to be made, the title cannot be rectified without his consent.

The judge found that, because Mr Suhitharan was in possession only of the drive and not of the garage, he was not in possession of the disputed land and paragraph 6(2) need not be considered. Mr Suhitharan’s second ground of appeal is that it should have been considered in relation to the drive even though it was not relevant to the garage. There is no suggestion that Mr Suhitharan caused or contributed to the mistake by fraud or lack of proper care, and the judge found (on his “in case I am wrong” basis, see paragraph 23 above) that it would not be unjust for the alteration not to be made. Mr Suhitharan argues that he should therefore remain the registered proprietor of the garage.

Much of Mr Feldman’s argument was addressed to the idea that it cannot be right that possession of part of disputed land, of whatever size, brings paragraph 6(2) into play as regards the whole of the disputed land. But that was not what was argued for Mr Suhitharan. His point was that paragraph 6(2) was relevant to the drive by itself since he was in possession of the drive alone. The judge did not explain his “all or nothing” approach and I cannot understand why Mr Suhitharan’s argument might be wrong. Mr Feldman’s answer was that it was unrealistic to separate the two parcels; the disputed land was one whole, and without the drive there was no access to the garage. The short answer to that is that on these facts the argument does not work, because there is no access to the garage through the front door and Mr Iwaskiewicz has never attempted to drive a car into the garage. He has used the garage for storage, and dealing with the two parts separately would enable him to continue to do so. There is no principle that a person who is not in possession of a garage cannot be in possession, for the purposes of paragraph 6(2), of the drive or of any other space in front of it.

Accordingly, if I had not set aside the FTT’s finding that there was a mistake on the register, I would have found that paragraph 6(2) of Schedule 4 to the 2002 Act applied to the drive, although not to the garage. That being the case the drive could not be removed from Mr Suhitharan’s title unless it would be unjust not to alter the register.

Mr Feldman sought to argue that it would be unjust in that event not to alter the register, and pointed to the timing of Mr Suhitharan’s taking of possession of the drive – just before the application was made to HM Land Registry. He saw it as a cynical taking of possession in order to take advantage of section 6(2). Reading Mr Suhitharan’s witness statement, which the judge appears to have accepted in this respect, it appears that after his purchase of the property he protested at Mr Iwaskiewicz’s parking on the drive, and when his emails had no effect he put up a bollard. He had not at that stage taken legal advice and the first he knew about his neighbour’s application to HM Land Registry was the notification from the FTT in December 2019. If that was correct – and the judge made no contrary finding – then the allegation of a cynical taking of possession cannot be right. The bollard was installed to prevent Mr Iwaskiewcz from parking and to enable Mr Suhitharan to park, so as to retain possession of land to which he had recently acquired a registered title. There is nothing there to take Mr Suhitharan out of the protection of paragraph 6(2). Accordingly, without going into the question whether it would be right for Mr Feldman to make that argument without any formal cross-appeal, the argument would have no prospect of success.

Therefore, if I had not found for the appellant on ground 1 the judge’s finding that it would not be unjust not to alter the register so as to remove the drive from number 2’s title would take effect, and the alteration of the register would be partially reversed so that Mr Suhitharan kept the drive.