Elaine Celina Smith v Anita Logendra

Application to register a new extended lease made or purportedly made by a deed of variation signed by the attorney of the freeholder – was the power of attorney ever delivered to the attorney whereby it became executed? – was the deed of variation invalid because its date had been altered? – new lease not registered - if valid, did the new lease take priority as an overriding interest over the subsequent transfer of the freehold interest? -if so, are there exceptional circumstances entitling the Tribunal not to alter the register. Pigot’s Case (1614) 112 Co Rep 26 , Doe d Tatum v Catamore (1851) 16 QB 745 , Keith v Pratt (1862) 10 WR 296 , Aldous v Gornwell (1868) LR 3 QB 573 , Bishop of Crediton v Bishop of Exeter , [1905] 2 Ch 455 Re Spollon and Long’s Contract [1936] Ch 713 , Vincent v Premo Enterprises (Voucher Sales) Ltd , [1969] 2 QB 609 Hodgson v Marks [1971] 1 Ch 892 , Lewis v Avery [1972] QB 198 , Longman v Viscount Chelsea (1989) 58 P&CR 189 , Raijfeissen Zentralbank Osterreich AG v Crosseas Shipping Ltd , [2000] 1 WLR 1135 Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) , Thompson v Foy [2009] EWHC 1076 (Ch) , Bibby Financial Services Ltd v Magson [2011] EWHC 2495 , Paton v Todd [2012] EWHC 1248 (Ch) , Pickenham Romford Ltd v Deville [2013] EWHC 2330 (Ch) , Trevallion v Watmore (2016 ) REF/2015/0295 , Bakrania v Shah [2019] EWHC 949 (Ch) , Dhillon v Barclays Bank Plc [2020] EWCA Civ 619 , Euro Securities & Finance Ltd v Barrett [2023] EWHC 51 (Ch) , Saleh v Freehold Reversions 2 Ltd [2024] UKUT 00676 (PC) . This decision is divided into the following parts:

1. General introduction. 1-13

2. The titles. 14-18

3. The power of attorney. 19-22

4. The deed of variation. 23-34

5. The new lease. 35

6. The freehold transfer. 36-38

7. The applications to register the new lease. 39-45

8. The issues: recap. 46

9. The hearing and the evidence. 47-52

10. The first issue. 53-83

11. The second issue. 54-109

12. The third issue. 110-138

13. The fourth issue. 139-159

14. Conclusion. 160

15. Costs. 161

16. Postscript. 162 General introduction

1. By the 18th century, Market Place in East Finchley had become the site of the largest pig market in Middlesex. Pig drovers, from as far away as Shropshire, would sell the pigs to London butchers or local farmers. It was said that the pigs were fed on grain that had been used for distilling gin.

2. Some 360 years after the market was established in the 1660’s, a property dispute on a small part of that land will be determined, in part, by the correctness of obiter dicta made by Sir Edward Coke some 50 years before the market even opened. These remarks are known, fittingly, as the rule in Pigot’s Case .

3. These are unfortunate proceedings in that I have to decide which of two entirely innocent parties has to lose a not insignificant amount of money.

4. In Lewis v Avery [1972] QB 198 , a rogue sold a stolen car to a buyer unaware of its theft. The Court of Appeal had to decide whether the owner or the buyer had to suffer the loss. Lord Denning MR famously began his judgment as follows: This is another case where one of two innocent persons has to suffer for the fraud of a third. It will no doubt interest students and find its place in the textbooks.

5. In this case the suffering is not caused by fraud, but by the negligence of a firm of conveyancing solicitors some 19 years ago.

6. In summary, the issues I have to decide are as set out below: (a) A is the freeholder of a house. B is a long lessee of a flat in the house. (b) Was a power of attorney, whereby A appointed C as his attorney, ever delivered to C whereby it became executed? This is the first issue . (c) Was a deed of variation of the lease invalid because its date had been altered? This is the second issue . (d) If the deed of variation was valid, it operated as a surrender and regrant. (e) If there was a regrant, C’s conveyancing solicitors negligently failed to register the new lease. (f) A subsequently transfers the freehold of the house to D. (g) D was unaware of the new lease at the time she purchased because it was not registered at Land Registry, and its existence was not discovered during pre-contract enquiries. (h) Does the new lease take priority over D’s freehold interest as an overriding interest? This is the third issue . (i) If the new lease does take priority, the freehold purchased by D is less valuable than she thought. This is because the house is encumbered by a longer lease than the register shows. (j) On the other hand, if the new lease does not take priority, B has lost the value of the extra 99 years of her lease that she has paid for. (k) Over 14 years later, B eventually made a valid application to Land Registry to register the new lease. D opposes the registration. This is the matter referred to me. (l) If the applicant succeeds on all the above issues, are there exceptional circumstances entitling the Tribunal not to alter the register? This is the fourth issue .

7. In the above summary: (a) A is Mr Frederick Stuart ( Freddy ). (b) B is the applicant. (c) C is Freddy’s mother, Cristina Stuart ( Cristina ). (d) B’s conveyancing solicitors were the somewhat inaptly named Mundy’s Specialist Property Lawyers ( Mundy’s ). (e) D is the respondent.

8. Both parties are highly educated. The applicant, having obtained her PhD from Imperial College, is now a Professor of Entrepreneurship at a Business School in Lyons. The respondent is a General Practitioner, who qualified in Scotland but now practises here.

9. Both parties prepared their own skeleton arguments. Understandably, the submissions ran far and wide. I am grateful to counsel, each of whom conducted their case with skill, courtesy and moderation, for confining their arguments only to the good points, and avoiding the temptation to take any bad points.

10. In this way, the case was concluded in its allocated single day. A short opening and the oral evidence took 2 hours 30 minutes in the morning, and submissions took 3 hours in the afternoon.

11. Relations between the parties are strained. Each party thinks the other is trying to take an unfair financial advantage of the other. I wholeheartedly reject any such suggestion. The unsuccessful party will lose a not insignificant amount of money. The parties each have good arguable cases, and neither can be criticised for taking her case to trial.

12. For the reasons I endeavour to explain below, I find that the applicant is successful on all four issues. She is entitled have the new lease registered, and is the successful party. This is not without some regret, as it is Mundy’s, the applicant’s own conveyancing solicitors, who are the cause of the dispute.

13. I now turn to deal in more detail with the facts and the four issues. The titles

14. The respondent has, since 23 November 2007, been the freehold proprietor of 10 Market Place, London N2 8BB, registered under title NGL345217 ( the house ). I have explained how Market Place takes its name.

15. The house, which appears to be late Victorian or Edwardian and is at the end of a terrace, is divided into a ground floor and first floor flat (respectively the ground floor flat and the flat ).

16. As I understand it, the respondent lived in the ground floor flat from the time she purchased the freehold in 2007 until she granted a long lease of it to a third party on 14 July 2020. Accordingly, the respondent’s interest in the house since that date consists solely of the freehold reversions to both flats. The ground floor flat does not play any part in these proceedings.

17. The flat is subject to a long lease dated 15 February 1980 for a term of 99 years from 25 March 1979, registered under title NGL368589 ( the original lease ).

18. At a later date, the original lease was assigned to the applicant. She was registered as its proprietor on 22 October 1985. The power of attorney

19. On 04 April 2005, Freddy signed a general power of attorney, whereby he appointed Cristina his attorney, in accordance with s.10 Powers of Attorney Act 1970 ( the power of attorney ).

20. Freddy gave his address as both the flat and a house in West Hollywood. California. The power of attorney is witnessed by Ms Cathy Bonanni, who also gave an address in West Hollywood.

21. Between Freddy’s signature and the witness’ attestation there is a printed line which reads: Signed as a deed and delivered by the said [blank] in the presence of [the witness].

22. The blank has not been filled in. Does this means the deed was never executed as it was not delivered to Cristina, as the law requires? As I have said, this is the first issue I have to decide. It is dealt with in paragraphs 53-83 below. The variation of the lease

23. In 2006, Freddy was still the freehold owner of the house. Assuming the power of attorney was executed, I now turn whether the original lease was subsequently varied, and a new lease thereby granted.

24. Copies of a deed of variation of the original lease bearing different dates have been produced to me (respectively the original lease variation and the updated lease variation ).

25. The change of the date of execution is the only alteration in the updated lease variation. The original lease variation was not signed by Freddy himself, but by Cristina as his attorney or purported attorney. It has not been signed a second time. I do not think this is controversial. The change of date has not been initialled.

26. The original lease variation has the date: “the 6th day of September 2006” (the words and numbers in roman (upright) type having been typed, and the words and numbers in italics having been written by hand).

27. The updated lease variation has the date: “the 6th 16th day of September APRIL 200 6 7 (again, the words and numbers in roman (upright) type having been typed, and the words and numbers in italics having been written by hand).

28. As I understand it, there is no suggestion that the original lease variation can be relied upon. It seems to me that it was the intention of both parties that the updated lease variation would replace the original lease variation.

29. Does this alteration of the date make the updated variation invalid? This is the second issue I have to decide. It is dealt with in paragraphs 54-109 below.

30. The updated lease variation provides that, in consideration of £8,500 paid by the applicant to Freddy, the term of the original lease is to be construed as a term of 198 years from 25 March 1979, instead of 99 years from 25 March 1979. In other words, in practice and in popular terms, the applicant was extending the original lease by 99 years. £8,500 is worth £14,000 today.

31. But, as matter of law, as the term was being extended, the updated lease variation took effect as a surrender of the original lease and the regrant of a new lease ( the new lease ).

32. The updated lease variation also provides for six other changes to the original lease, such as reducing the ground rent to a peppercorn, and widening the user clause.

33. It is important in deciding the first issue whether or not the power of attorney was delivered, to note that the negotiations with the applicant for the new lease were conducted by Cristina as well as by Freddy: (a) A letter from Freddy to the applicant, dated 04 January 2006, refers to the fact that on 05 August 2005 a copy of the draft original lease variation with amendments had been sent by Cristina to the applicant. (b) On 10 February 2006, in a letter sent to Mundy’s, the applicant referred to a variation of the terms of the lease with amendments made by Cristina (other than just to its length). She wanted to know whether the amendments by her (ie Cristina) were fair. The letter concluded: I am assuming that you will issue a revised deed to [Cristina] in [Freddy’s] absence . (c) In a further letter to Mundy’s dated 12 April 2006, the applicant referred to Cristina’s amendments to the original lease variation.

34. See also the evidence in paragraph 85 below. The new lease

35. Whether the new lease is a valid lease depends on whether the applicant succeeds on both of the first two issues. The freehold transfer

36. On 31 October 2007, just over six months after the grant of the new lease, Freddy sold the freehold of the house to the respondent ( the freehold transfer ). She thereby became the applicant’s landlord of the flat.

37. On 21 November 2007, the respondent was registered as the freehold proprietor of the house. The applicant was not at that time registered as the proprietor of the new lease. Nor was the new lease otherwise protected on the register by a notice or otherwise.

38. This raises the question of whether, if valid, does the new lease take priority over the freehold interest an overriding interest? This is the third issue I have to decide. It is dealt with in paragraphs 110-138 below. The applications to register the new lease

39. Assuming it was valid, the new lease was required to be registered at Land Registry before it could become a legal lease: see s.27 Land Registration Act 2022 (“ the 2002 Act ”).

40. The first application to register the new lease was made on 22 May 2007. This application was made within the normal time to be expected, and before the freehold transfer. But the application was cancelled on 23 July 2007. This was due to a failure by Mundy’s to comply with a Land Registry requisition dated 23 June 2007.

41. The second application to register the new lease was made over 14 years later on 22 September 2021, well after the freehold transfer. The application was cancelled on 03 January 2022, again because Mundy’s did not deal with queries raised by Land Registry in a letter dated 15 November 2021 about the validity of the power of attorney and the updated lease variation.

42. The third application to register the new lease was made on 12 January 2022 ( the original application ). The new lease has been given the provisional title AGL554403. It may seem curious that third time round the application is referred to as being “original”, but this is the first application to have got past Land Registry to the Tribunal. It is the correct appellation as provided by r.1(3) Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

43. The original application was made, as is required, on prescribed form AP1. This is the form asking for the register to be altered. The registrar has the power to alter the register in certain circumstances, and it is his power I am exercising in these proceedings: Bakrania v Shah [2019] EWHC 949 (Ch) .

44. Alteration of the register by the registrar is governed by paragraph 5 of schedule 4 to the 2002 Act. If the applicant succeeds on the first three issues, should I exercise my power to refuse to allow the original application because there are exceptional circumstances? This is the fourth issue. It is dealt with in paragraphs 139-158 below.

45. On 13 November 2023, the respondent objected to the original application. Following the objection, the dispute was referred to the Tribunal pursuant to s.73(7) Land Registration Act 2022. The issues: recap

46. It may be worthwhile at this stage once again setting out the four issues I have to decide. (a) Was the power of attorney delivered? (b) If yes, does the change of date invalidate the updated lease variation? (c) If valid, does the new lease takes priority over the freehold transfer as an overriding interest? (d) If the applicant succeeds on all the above issues, are there exceptional circumstances entitling the Tribunal not to alter the register? The hearing and the evidence

47. The hearing was conducted remotely. Mr Wilkinson represented the applicant and Ms Halker the respondent. I have already expressed my thanks to them.

48. Both parties served statements of case with a statement of truth, and made witness statements.

49. Both parties gave oral evidence.

50. The applicant called Mr Alun Richards to give oral evidence. At the time of the signing of the original lease variation he was a partner in Mundy’s, which firm acted on both sides. However, it emerged that he did not have any personal involvement with the transaction. He frankly accepted that Mundy’s had been negligent. It was not explained why he was called to give evidence, or why Mr Nicholas Mundy, who had been involved with the transaction, was not.

51. The only real dispute between the parties on the facts was whether the applicant’s occupation of the flat would not have been obvious on a reasonably careful inspection of the land at the time of the freehold transfer.

52. For the reasons given below, I prefer the evidence of the applicant to the evidence of the respondent. The first issue: was the power of attorney delivered? The statutory provisions

53. s.1(1) Powers of Attorney Act 1971 provides: An instrument creating a power of attorney shall be executed as a deed by the donor of the power.

54. s.1(2) Law of Property (Miscellaneous Provisions) Act 1989 provides that: An instrument shall not be a deed unless— (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

55. There is no prescribed form.

56. s.1(3) Law of Property (Miscellaneous Provisions) Act 1989 provides that: An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed— (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed ... Submissions of the respondent

57. Ms Halker says the power of attorney is invalid because it has not been so delivered.

58. She took me to Bibby Financial Services Ltd v Magson [2011] EWHC 2495 [335] where HH Judge Seymour (sitting as a High Court Judge) said: Mere signature is not enough. Nor is it enough that what looks like a deed has been given to the person who appears to be the beneficiary of it – the issue is not whether the document has been physically handed over to the beneficiary, but whether the person whose deed it is supposed to be intended to be bound by it.

59. We do not, of course, have any evidence from either Freddy or Cristina, the parties to the power of attorney, to assist us. Nor evidence on this point from any other witness. Ms Halker says that there is very little evidence of Freddy’s intention. She relies upon the blank in the power of attorney which I have set out in paragraph 21 above, to say that I cannot be satisfied that it has ever been delivered. She says it looks like a definite decision not to put the wording in.

60. Ms Halker referred me to a letter from Mr John Pownall, an experienced Assistant Land Registrar, to Mundy’s dated 15 November 2021.This was sent in connection with the second failed application to register the new lease. He said: I would also point out that the Power of Attorney has not been executed properly in terms of the execution clause being blank where the full name of the donor should appear.

61. Ms Halker says that it is not sufficient to say that Cristina subsequently engaged with the applicant in connection with the new lease (as set out in paragraphs 33 above and 85 below). She might have been on a frolic of her own. Indeed, on the balance of probabilities, this is exactly what had happened.

62. Turning to Mr Wilkinson’s fallback position of a general agency, whereby Cristina had the power to grant an equitable lease (see paragraph 76 below), Ms Halker says there are two problems.

63. First, if there had been a conscious decision not to deliver the power of attorney, that would indicate an intention not to create a general agency. Secondly, there is no evidence that Cristina had been given any authority. Submissions of the applicant

64. Mr Wilkinson says that it is not surprising that we do not have the original of the power of attorney, but secondary evidence is admissible. There is no suggestion that the original had been forged in any way.

65. He says the document makes it clear on its face that it was intended to be executed as a deed, and to be delivered to the donee – Freddy has signed it above the words Signed as a deed and delivered… .

66. Mr Wilkinson says that there are no magic words for an attestation. There is no need to repeat the name of the person attesting.

67. He submits the omission of the words of delivery below the signature is not fatal. He referred me to the decision of HH Judge Tindal (sitting as a High Court Judge) in Euro Securities & Finance Ltd v Barrett [2023] EWHC 51 (Ch) [59] : This point reads too much into the Law Commission report which made it clear at p.2.14 it was not prescribing any particular attestation clause and nor indeed does s.1 LPMPA. In my respectful opinion, all the report meant was that the ‘attestation clause’ had to confirm a valid attestation, not that that clause explicitly had to use any particular words.

68. I am not sure this case is to point, bur Mr Wilkinson also relies upon Lewison on the Interpretation of Contracts, 8th ed at 8.104 et seq. Where a blank space exists in an instrument the court should consider whether the rest of the document or admissible extrinsic evidence can be used to satisfactorily fill the gap. If it can, the instrument is construed so as to fill the gap. If it cannot, the court must go on to consider what effect that has on the validity of the instrument.

69. He says the gap can be filled for a number of reasons.

70. First, the document itself makes it clear objectively that it is Freddy who is executing the document as a deed.

71. Secondly, at the time when the power of attorney was executed, there is evidence that: (a) Freddy spent much of his time in the USA, gave an address in the USA as a place of residence, and his witness lived in the same city. I was told that Freddy was an actor. (b) Freddy and the applicant had for some time been negotiating the new lease. (c) Cristina was Freddy’s mother.

72. Mr Wilkinson says is not difficult to infer that Freddy appointed his mother, Cristina, as his attorney to act on his behalf in relation to the new lease as he was absent from the UK for much of the time, and that he signed this document in the presence of the witness whilst in the USA.

73. He also relies upon the correspondence set out in paragraph 33 above, which shows the extent to which Cristina was involved with the applicant in negotiating the terms of the new lease. In other words, she was acting under the power of attorney.

74. Mr Wilkinson referred me to the well known case of Longman v Viscount Chelsea (1989) 58 P&CR 189 , where Nourse LJ said at p.195: A writing cannot become a deed unless it is signed, sealed and delivered as a deed. Having reached that stage, it is correctly described as having been "executed" as a deed. Having been signed and sealed, it may be delivered in one of three ways. First, it may be delivered as an unconditional deed, being irrevocable and taking immediate effect. Secondly, it may be delivered as an escrow, being irrevocable but not taking effect unless and until the condition or conditions of the escrow are fulfilled. Thirdly, it may be handed to an agent of the maker with instructions to deal with it in a certain way in a certain event, being revocable and of no effect unless and until it is so dealt with, whereupon it is delivered and takes effect…

75. He says that this case falls squarely within the first scenario. A combination of all this evidence, and the contents of the rest of the power of attorney, make it clear that any uncertainty created by the gap in the standard form can be resolved. He also relies on the third scenario, being delivery by conduct.

76. Finally, Mr Wilkinson says that if he is wrong, the document could be viewed as a written authority (short of a power of attorney) enabling an equitable lease to be created by Cristina on behalf of Freddy.

77. He relies on the following passage from Bowstead & Reynolds on Agency 23rd Ed at 2.042: Where an agent not appointed by deed purports to execute a deed, the document may be taken to have a lesser effect if the intended result could in fact be achieved without a deed: thus an invalid appointment by deed may take effect as an appointment in writing. Discussion

78. I have come to the clear conclusion that the power of attorney was delivered.

79. I have found Emmett and Farrand on Title 20.005 useful. It refers to Lord Denning MR’s judgment in Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 , 619: " The law as to ‘delivery’ of a deed is of ancient date. But it is reasonably clear … ‘Delivery’ in this connection does not mean ‘handed over’ to the other side. It means delivered in the old legal sense, namely, an act done so as to evidence an intention to be bound. Even though the deed remains in the possession of the maker, or of his solicitor, he is bound by it if he has done some act evincing an intention to be bound, as by saying: ‘I deliver this as my act and deed’"

80. It continues: However, apart altogether from any act or words, delivery may simply be an inference from the conduct of the parties, whether at the time of execution or afterwards ( Keith v Pratt (1862) 10 WR 296 ).

81. I set out the correspondence at paragraph 33 above, because in my judgment this is just the sort of evidence of conduct after it had been signed which entitles me to infer that the power of attorney had indeed been delivered, and I so find.

82. It is therefore not necessary for me to consider Mr Wilkinson’s fallback position, which is that Cristina executed the variation as a general agent of Freddy, even though the appointment was not under seal. She could not, as a general agent, execute a legal lease, but she could execute an equitable one.

83. I am bound to say that is not an argument that I find persuasive. No one intended an equitable lease to be created. But I need say no more about it and leave the point open. The second issue: does the change of date invalidate the updated lease variation? The evidence

84. The applicant said that she thought Munday’s had drawn up the original lease variation. When asked why she thought the original date had been crossed out, she said that she guessed there had been toing and froing, but did not know why. She did not know when it had been signed. She might have entered the date in a diary or have stored it in a document file, but she did not have those documents to hand.

85. The applicant said she could not say why there were two different versions of the lease variation. She though Cristina had signed it because she co-owned the house with Freddy. She was sure that Freddy had agreed she could sign off for him. He had made it clear that she represented him, and he asked the applicant to deal with Cristina.

86. The respondent was, of course, not a party to the lease variation, unlike the applicant. She said that her conveyancing solicitors were Krish Solicitors. She cannot remember who in the firm acted for her, and she could not remember receiving a report on title.

87. In her oral evidence the respondent said that, in about 2008 or 2009, she was having a discussion about parking spaces with the applicant. The respondent opened the original lease and found a photocopied copy of the updated lease variation tucked inside it.

88. This is different to what is said in an exchange of emails on 17 and 18 September 2018. The respondent was interested in letting out the ground floor flat. She then found out that the applicant had only 59 years left on the original lease, being the lease noted on the applicant’s registered title. When informed of this, the applicant said she found this quite surprising, as her lease had been extended by 100 plus years while Freddy still owned the house.

89. I do not think anything turns on this difference of recollection. Submissions of the applicant

90. Mr Wilkinson says the updated lease variation (dated 16 April 2007) was the effective one for the following reasons: (a) The Land Transaction Return Certificate was issued on 20 April 2007. (b) The updated lease variation was lodged with Land Registry on 22 May 2007. This is the date the first unsuccessful application to register the new lease was made. (c) The updated lease variation was not dated until 16 April 2007. (d) There is a presumption that in a non-testamentary disposition any amendments are made prior to completion.

91. He says the alteration of the date in the updated lease variation is immaterial, and it does not matter whether the alteration took place before or after it was executed. He also makes the point that both versions predate the freehold transfer, so the change in date was never done out of a sinister motive to put the respondent at a disadvantage.

92. He also says that the date may have been changed because it suited Freddy to have the transaction in the later tax year. Submissions of the respondent

93. Ms Halker says that it is an oddity that there are two different versions of the lease variation. Why has one been amended but not the other? We have no explanation. There has been no initialling of the amendment. The respondent received the wrong version inside the original lease.

94. Further, she relies upon the long established authority of Pigot’s Case (1614) 112 Co Rep 26 , mentioned briefly in paragraph 2 above, which provides: … when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line, or through the midst of any material word, that the deed thereby becomes void … So if the obligee himself alters the deed by any of the said ways, although it is in words not material, yet the deed is void; but if a stranger, without his privity, alters the deed by any of the said ways in any point not material, it shall not avoid the deed.

95. She says that changing the date is a material alteration. There must be some reason why it was altered. Mr Wilkinson’s suggestion this was tax planning on Freddy’s part is pure speculation. It is possible that Mundy’s changed the date. Discussion

96. It appears that Pigot’s Case does not apply in three circumstances.

97. The first circumstance is when the alteration is made before execution. There is a rebuttable presumption that an alteration appearing in a deed was made before execution: see Doe d Tatum v Catamore (1851) 16 QB 745 and Re Spollon and Long’s Contract [1936] Ch 713 .

98. I think it is likely that the parties, having signed the original lease variation, decided for some reason to postpone its implementation. It was never delivered, so never executed.

99. Subsequently, having decided to go ahead, they did not consider it necessary to draw up a new deed to be signed all over again. They simply changed the date on the original lease variation. We do not know the exact reason for this postponement. Mr Wilkinson’s suggestion this was tax planning on Freddy’s part is pure speculation. But the presumption I have referred to above is not rebutted.

100. The second circumstance is that an alteration or addition for the purpose of correcting an obvious error made after execution will not avoid a deed.

101. It is worth referring to the case of Bishop of Crediton v Bishop of Exeter [1905] 2 Ch. 455 . This somewhat unholy dispute, which concerned which party had the right of advowson, patronage and perpetual right of presentation and nomination to a new church to be called St Simon’s in the parish of St Jude’s, could have come straight out of Trollope’s Barchester Chronicles.

102. The headnote reads: A deed which required for its validity execution by the Bishop of Exeter was executed on or about October 21, 1899, by all parties other than the bishop. At the time of these executions the date of the day and the month were left in blank, but the year 1899 was written out in full. The bishop executed the deed on January 4, 1900; the blanks were then filled in and the date of the year altered from 1899 to 1900:— Held, that the alterations had no effect on the validity of the deed. The rule in Pigot's Case …, that any alteration by the obligee after execution invalidates the deed, must, since the decision of Aldous v Gornwell,(1868) LR 3 QB 573 , be taken to apply only to material alterations.

103. So, even if the original lease variation had been executed before it was updated (contrary to the finding above), the alteration does not invalidate it as it was not material.

104. The third circumstance is where no material prejudice is caused.

105. In Raijfeissen Zentralbank Osterreich AG v Crosseas Shipping Ltd [2000] 1 WLR 1135 , 148 , Potter LJ said: … it seems to me that, to take advantage of the rule [in Pigot’s Case ], the would-be avoider should be able to demonstrate that the alteration is one which is potentially prejudicial to his legal rights or obligations under the instrument. I say “potentially prejudicial” because I do not think it necessary to show that prejudice has in fact occurred. The rule remains a salutary one aimed at preventing fraud and founded upon inference of fraudulent or improper motive at the time of alteration. It seems to me that, absent any element of potential prejudice, no inference of fraud or improper motive is appropriate ."

106. In a land registration case not cited to me, namely Pickenham Romford Ltd v Deville [2013] EWHC 2330 (Ch) , Sir William Blackburne, sitting as a High Court Judge, held that an alteration to a debenture in relation to the names of properties prior to filing with the Land Registry did not invalidate it as, amongst other things, the alteration must be material.

107. I do not see how the change of date could be potentially prejudicial to the respondent.

108. Accordingly, for all the above reasons I find that the later deed of variation is valid.

109. Having found that both the power of attorney and the updated lease variation are valid, it follows that the new lease is also valid, and the applicant remains the owner of the new lease for approximately another 104 years. The third issue: does the new lease takes priority over the freehold transfer as an overriding interest?

110. The respondent says that this is all very well and good, but the new lease, although created before the freehold transfer, has never been registered. It is just an equitable lease. As such it does not appear on the register, so why should it be binding on her?

111. After all, the register is supposed to be a complete record of both the ownership of land and adverse interests affecting that land. So a right of way burdening the freehold, or a long lease carved out of it, should be readily apparent on the registered title of the freehold.

112. The applicant says she was surprised to find out subsequently that the new lease had not been registered at the time of the freehold transfer. She was also surprised that the respondent, at the time of the freehold transfer, was then unaware of the new lease. She had never been given any information from Mundy’s. She had no idea that two applications for registration had been cancelled. As far as she was concerned the lease had been extended. She denied that this application was a money making opportunity.

113. The concept of “overriding interests” was formally introduced into land registration law by the Land Registration Act 1925 . They were created as a practical compromise to protect certain interests that were difficult or impractical to register.

114. s.29 of the 2002 Act provides: (1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration . (2) For the purposes of sub section (1 ), the priority of an interest is protected — (a) in any case, if the interest— … (ii) falls within any of the paragraphs of Schedule 3…

115. The freehold transfer was registered on 23 November 2007. Unless immediately before that date the new lease was protected, it would be postponed to the freehold.

116. It is schedule 3 to the 2002 Act which sets out the various interests which are protected and take priority over registered dispositions, in this case the freehold transfer. These are the overriding interests.

117. In other words, the respondent must show that on 23 November 2007 the new lease did not fall within any of the paragraphs of schedule 3.

118. The relevant paragraph in schedule 3 is paragraph 2 . This provides: Interests of persons in actual occupation An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation , except for — … (c) an interest— (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time.

119. On the face of it, the applicant does have the benefit of the new lease, as an overriding interest, as at the material time she was in actual occupation of the flat.

120. Accordingly, to defeat the overriding interest, the respondent has to bring herself within the exception and show that (a) the applicant’s occupation was not obvious on a reasonably careful inspection of the land at the time of the freehold transfer , and (b) that she was unaware of the new lease. Both limbs need to be satisfied by the respondent: see Trevallion v Watmore (2016) REF/2015/0295 .

121. As far as limb (c)(ii) is concerned, I accept the respondent’s evidence that she was unaware at the time of the freehold transfer of the existence of the new lease. She found a photocopy of it tucked into the original lease sometime later.

122. As far as limb (c)(i) is concerned, I heard oral evidence from the parties on this issue of whether the applicant’s occupation was not obvious on a reasonably careful inspection of the house.

123. The respondent says that prior to the freehold transfer she knew that a couple were living in the flat, but she did not know who they were. The existence of a lease of the flat was disclosed on the Solicitor’s Property Information Form.

124. The respondent says she was just starting to work as a GP in London. She visited the house two or three times before purchasing it during the day, and saw no sign of the applicant. There was no car in the front which belonged to her. She cannot recall the number of wheelie bins. The rear garden is split in two and she has no recollection of the state of the grass on the applicant’s side, though she recalled a barbecue.

125. There were drapes in the windows but were always open. She described them as posh and decorative. She rang the doorbell when she went, and banged on the internal door when it was not answered, again to no effect. She did not notice any post for the applicant in the small front communal lobby. She did not notice the plants in the window. There was only one post flap in the front door.

126. The respondent said in cross-examination that she had no valuation evidence that she had overpaid, or evidence that Freddy would have accepted a lower price if she had been aware of the new lease.

127. The applicant’s evidence is that she was not aware of the respondent ringing the doorbell or knocking on the door. She says the respondent could have found out her phone number.

128. The applicant was asked which of paragraphs 3 or 6 of her witness statement were true. The first said that she did a great deal of her studying at home. The second said she would be frequently in and out of the flat to pick up groceries, attending appointments and popping to the university. I do not regard these statements as mutually inconsistent.

129. She explained that she changed the doorbell, not because it was broken, but to upgrade it to an interphone. Often persons making deliveries to the ground floor flat would use her doorbell. She had no car, that is why it was not to be seen on the forecourt.

130. The applicant said that the curtains would be kept open or shut depending on the season. Similarly, depending on the time of the year, a light would be on. She kept plants in the window. It was clearly to be seen through the front door with large glass panels that there were two internal doors to separate flats leading off the small communal front lobby. There were six wheelie-bins on the front.

131. In closing submissions, Ms Halker took me to Thompson v Foy [2009] EWHC 1076 (Ch) [132] , where Lewison J (as he then was) said: …paragraph 2 (c) does not require an actual inspection. It asks what would have been obvious if an inspection had been made.

132. Ms Halker submits the applicant’s occupation would not have been obvious. She referred me to Saleh v Freehold Reversions 2 Ltd [2024] UKUT 00676 (PC ), a case in which no occupation was found.

133. Mr Wilkinson, on the other hand, submits that on the above evidence, the applicant’s occupation would have been obvious.

134. He relies upon the well known case of Hodgson v Marks [1971] 1 Ch 892 , making it clear that any enquiry had to be made of the applicant, not some third party.

135. In my judgment, the respondent comes nowhere near to proving what she has to. When I asked the respondent why she wanted to see the applicant she said it was to see what sort of person she was. The one thing she was not doing was conducting an enquiry as to whether any one actually lived there or not.

136. There were no signs that applicant was not living there. The front upstairs window was not boarded up or smashed in a way to suggest that the flat was vacant. The grass in the rear garden was not overgown in the month of August. Moreover, there are a multiple number of reasons why the applicant might not have been at home.

137. She could have gone up to South Kensington to work on her PhD. She might have been shopping in the High Road. There are endless possibilities.

138. I therefore find that the new lease was an overriding interest on 31 October 2007, the day of the freehold transfer. It therefore takes priority over the respondent’s freehold interest in the house. The fourth issue: are there exceptional circumstances entitling me to direct the original application to be cancelled?

139. As I have said above, alteration of the register is governed by schedule 4 to the 2002 Act.

140. In certain circumstances, alteration can amount to rectification. This can be far harder to achieve than alteration. However, it is common ground that is not a rectification case, so no more need be said about it.

141. Alteration can be made by both the court and the registrar. I am exercising the power of the registrar: Bakrania v Shah [2019] EWHC 949 (Ch) .

142. Schedule 4 sets out the provisions by which the court and the registrar exercise their respective powers .

143. These proceedings are concerned with bringing the register up to date. The applicant has, at long last, made a valid application to put the new lease on the register.

144. Paragraph 2(1) of schedule 4 governs the jurisdiction of the court and, where relevant, provides: The court may alter the register for the purpose of …(b) bringing the register up to date…

145. Paragraph 4 of schedule 4 provides: Rules may— (a) make provision about the circumstances in which there is a duty to exercise the power under paragraph 2…

146. Pursuant to this paragraph, r.126 of the Land Registration Rules 2003 provides: (1) Subject to paragraphs (2) and (3), if in any proceedings the court decides that…(b) the register is not up to date… it must make an order for alteration of the register under the power given by paragraph 2(1) of Schedule 4 to the Act . (2) The court is not obliged to make an order if there are exceptional circumstances that justify not doing so…

147. Paragraph 5(1) governs the jurisdiction of the registrar (ie my jurisdiction) and, where relevant, provides: The registrar may alter the register for the purpose of…(b) bringing the register up to date…

148. Paragraph 6 provides: Rules may— (a) make provision about the circumstances in which there is a duty to exercise the power under paragraph 5…

149. But unlike in the case of the court, no rule has been made equivalent to r.126.

150. However, counsel reminded me that whilst there is no equivalent rule, nevertheless in Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) , Mr Christopher Nugee QC (as he then was) said at [28]: I can see nothing wrong in the Adjudicator in effect adopting the same principles as are laid down in rule 126 for the Court.

151. I am the statutory successor to the adjudicator. I am not obliged to make an order if there are exceptional circumstances that justify my not doing so.

151. Ms Halker made persuasive submissions that these are exceptional circumstances. Her client was wholly innocent and was set to lose a not insubstantial amount of money if the registrar were to be altered to bring it up to date. Although the applicant could not be blamed personally, the root cause of the problem which had arisen was the failure of Mundy’s to register the new lease (not once but twice) before the freehold transfer. Mundy’s were the applicant’s agents after all, so justice required her to take responsibility for them.

153. Ms Halker asked why should anyone even bother to register a lease in these circumstances? There would be no consequences for doing that. Apparently, the estate agent had told the respondent when purchasing the house that she should not worry as she would get more money when the original lease had to be extended.

154. In reply, Mr Wilkinson made two points. The first was that there was no valuation evidence that the price of the freehold was reduced as a result of the grant of the new lease or evidence that Freddy would have reduced the price of the freehold if the respondent had known of the new lease: he might have driven a hard bargain.

155. I reject those submissions. I am entitled to have regard to my knowledge and experience of freehold valuation from siting in enfranchisement cases, and I have no doubt that the value of the freehold was significantly lowered by the grant of the new lease. Nor do I accept that the respondent would have been prepared to pay the same price had she known of the new lease.

156. Mr Wilkinson’s second point was a better one. He said, in effect, that I should not be persuaded by Ms Halker’s advocacy, because I could only exercise this power in exceptional circumstances and these were not exceptional circumstances.

157. I was not referred to any authority on the meaning of exceptional circumstances. This is not surprising because the issue was only raised for the first time during the hearing. But I am sure counsel are familiar with the observations of Morgan J in Paton v Todd [2012] EWHC 1248 (Ch) at [67]. “Exceptional” is an ordinary, familiar English adjective. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual or special, or uncommon; to be exceptional a circumstance need not be unique or unprecedented, or very rare but it cannot be one that is regularly, or routinely, or normally encountered: see R v Kelly [2000] 1 QB 198 at 208 C-D (a decision from a very different context but nonetheless helpful as to the ordinary meaning of “exceptional circumstances”). Further, the search is not for exceptional circumstances in the abstract but those which have a bearing on the ultimate question whether such circumstances justify not rectifying the register.

158. This approach of Morgan J was subsequently approved of by the Court of Appeal in Dhillon v Barclays Bank Plc [2020] EWCA Civ 619 .

159. If I had a wider discretion I might well have concurred with Ms Halker for the reasons she gave. However, I cannot hold that the circumstances are exceptional. Unfortunately, the problems arising (as here) of a negligent failure to register an interest is only too prevalent, and is the bread and butter of those who practice in this field. Conclusion

160. I shall direct the chief land registrar to give effect to the original application as if the objection had not been made. Costs

161. Costs normally follow the event. The parties must within 14 days must send to the other party and the tribunal any submissions on the liability to pay costs. Once I have decided that, the receiving party will be directed to serve a schedule of costs on Form N260, but this is not to be done yet. Postscript

162. I repeat what I have said above that, in my view, neither party has taken an unfair advantage of the other. I hope that now this dispute has been decided any animosity between them might begin to dissipate, because the parties will continue to remain in a landlord and tenant relationship (until such time, if any, as the applicant will be able to convert the flat to commonhold) . Dated this 12th day of February 2026 Simon Brilliant BY ORDER OF THE JUDGE OF THE PROPERTY CHAMBER OF THE FIRST-TIER TRIBUNAL