Max’s clients (together with the Applicants who were the original registered proprietors of the subject-property) were victims of fraudsters who procured the registration of the title to a substantial property in North London in their names and then sold it to Max’s clients, allegedly at an under-value.
The Applicants sought the alteration (as opposed to rectification) of the register on the basis that they had at all times continued to be the beneficial owners of the property, per Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002] EWCA Civ 151. Alternatively, they said that they were in actual occupation of the property at the time of the fraudulent transfer and that their ‘right to apply to rectify the Register’ took effect as an overriding interest.
Max’s clients were innocent purchasers for value who were in possession who said that any change to their title would amount rectification and that they had not been guilty of any fraud or lack of proper care.
The case raised important questions of principle concerning:
- The application of the Court of Appeal’s decision in Swift First Ltd v Chief Land Registrar [2015] 3 WLR 239 outside the context of a claim for indemnity under Schedule 8 Land Registration Act 2002;
- The operation of ‘equity of rectification’ as identified by the Court of Appeal per Malory as an overriding interest in the context of Schedule 4 Land Registration 2002;
- The meaning of ‘actual occupation’ in the context of the Land Registration Act 2002; and
- Overreaching in the case of a fraudulent transfer