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Mistakes happen but High Court decision eases rectification

12 May 2016

The case of Isaaks v Charlton Homes Ltd concerned a lease which incorrectly recorded the demise as a “third floor flat”. In fact, the property was a second floor flat. Surprisingly, this was only discovered several years after grant when the tenant’s lender sought to enforce the security it had and realised that the property wasn’t where it should have been! As the lease was inaccurate, so too was the registered leasehold title stemming from it. Consequently, the lender (on behalf of the tenant) sought rectification of the lease and alteration of the land register.

The Land Registry refused to amend the register. It argued that the register was accurate – the register correctly replicated the provisions of the lease. Therefore, the Land Registry advised the lender to seek a surrender and re-grant of the lease. This was problematic. Apart from the administrative hassle it would involve, it would also adversely impact the lender’s security.

The High Court disagreed with the Land Registry’s approach. It concluded that the lease erroneously stated that the property was situated on the third floor. The obvious common intention of the parties to the lease was to demise a second floor flat and, as a result, the lease should be rectified to reflect this. Further, so far as the Land Registry was concerned, it was irrelevant where the source of the mistake originated, or whose mistake it was. The key fact was that the register contained a mistake and that, in accordance with the Land Registration Rules 2003, the Court was obliged to order the Registrar to amend the register to remedy it.

Any decision to remove unnecessary procedural hurdles in practice is to be welcomed and this is no exception.

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