Rectification of the Register – Prospective or Retrospective?

DOIhttp://doi.org/10.1111/1468-2230.12119
Publication Date01 Mar 2015
AuthorEmma Lees
Rectification of the Register – Prospective or
Retrospective?
Emma Lees*
In Gold Harp vMacLeod the Court of Appeal considered paragraph 8 of Schedule 4 of the Land
Registration Act 2002 and interpreted this provision to mean that the priority between mis-
takenly de-registered interests and registered interests can be altered following rectification. The
court can give the de-registered interest the priority which it ‘would have had’ but for the
mistake. In other words, it allows for retrospective rectification. This case note concludes that
this is the correct interpretation of paragraph 8 and of the words ‘for the future’. However, it
argues that the current range of options available to the court in terms of rectification are
producing uncertainty, and that a better approach may be to rely on the priority provisions in
sections 28 and 29.
In Gold Harp vMacLeod1(Gold Harp), the courts have once again been called
upon to consider the statutory provisions contained in Schedule 4 of the Land
Registration Act 2002 (Sch 4 and LRA 2002 respectively) and rectification of
the register. Unfortunately, although the Court of Appeal gives a clear answer to
the specific question before it, the piecemeal approach to the interpretation of
Sch 4 continues.
Sch 4 controls the registrar and court’s ability to alter the register. Paragraph
2 stipulates the conditions under which such alteration can be made, including
rectification to correct a mistake. The central provision in this case however was
paragraph 8 of Sch 4. The paragraph stipulates that: ‘[t]he powers under this
Schedule to alter the register, so far as relating to rectification, extend to
changing for the future the priority of any interest affecting the registered estate
or charge concerned’.
There were two possible interpretations of this provision. Firstly, it could be
interpreted as providing for a power to rectify the register in such a way as to alter
the priority of interests so as to reflect how they would have been had no mistake
been made.2Secondly, it could be interpreted so as to mean that no such change
to priorities could take place, with changes to priority being ‘for the future’
only.3Thus the re-registered interest would affect the estate only after that point,
and could only take priority over interests created after that date.4The court
adopts the first interpretation. This is a natural interpretation of the statutory
*Lecturer in Property and Environmental Law, Department of Land Economy, University of
Cambridge.
1Gold Harp Properties vMcLeod & Others [2014] EWCA Civ 1084.
2ibid at [97].
3ibid at [94].
4ibid at [94].
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Emma Lees
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 361(2015) 78(2) MLR 349–371

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