Kavish Shah successfully represents the claimants in Wilson v Attorney General
What happens if:
1. Your company owns 2 plots of land, one is registered and the other is unregistered;
2. Your company uses them as a single site;
3. You decide in 2002 to sell the site to yourself personally;
4. In error, only the registered land is actually transferred;
5. In 2019, you sell the company to someone else;
6. In 2024, the purchaser of the company dissolves it;
7. In 2025, you try to sell your site and only then discover the mistake;
8. The purchaser of the company is happy to attest to the fact that the site is all yours as far as they are concerned.
This was the essay question facing the Business and Property Division last week.
On the facts, Deputy Master Jefferis was content that there was a mistake and that it was equitable to rectify the transfer deed so as to include the unregistered land. But what then?
The answer was as follows:
1. Rectification of a deed is retrospective in effect.
2. In 2002, the Land Registration Act 1925 was the relevant piece of legislation (as the Land Registration Act 2002 had not yet come into force). Since 1990, by the Registration of Title Order 1989/1347 and Section 123 of the Land Registration Act 1925, the whole of England was subject to compulsory registration.
3. Therefore, by Section 123A of the Land Registration Act 1925 (and as rectification is retrospective), there was a requirement to register the land within 2 months of the deed in 2002. As that was not done, and as that provision sets out, the unregistered land would be held on trust by the transferor (company) on bare trust for the transferee (you as individual).
4. So as at the date of dissolution of the company, it was holding the land on trust for you.
5. Given the trust, Section 1012 of the Companies Act 2006 did not apply. But under the common law, the legal title nonetheless would have passed to the Crown, but subject to the trust: Re Strathblaine Estates Ltd [1948] Ch 228, at 231.
6. Section 44 of the Trustee Act 1925 allows the Court to now vest the unregistered land in you.
For the last step, the Court was given the alternative option of Section 3 of the Law of Property Act 1925. However, given the better familiarity with Section 44 of the Trustee Act 1925, it opted for that route. Seemingly, we still await a case in which Section 3 of the Law of Property Act 1925 gets its time to shine.
Back to news listing
