Stanislaw Sokolowski v Together Commercial Finance Ltd & Ors [2025] UKFTT 1450 (PC)

[2025] UKFTT 01450 (PC)REF/2024/0096 & REF/2024/0097
PROPERTY CHAMBER, LAND REGISTRATION
FIRST-TIER TRIBUNAL
Between
STANISLAW SOKOLOWSKIAPPLICANTTOGETHER COMMERCIAL FINANCE LtdRESPONDENTSMATO HOMES LtdRESPONDENTSPETER PETROVICSRESPONDENTS
LAND Registration act 2002
IN the matter of a reference from hm land registry
RECTIFICATION – mistake – fraud – legal charge – transfer
Property Address: 209 Boston Manor Road, Brentford TW8 9LFTitle Number: AGL22210Sitting at: 10 Alfred PlaceOn: 15 th, 16 th, and 17 th September 2025Applicant’s Representation: Evan Price (counsel, instructed by Anthony Gold)First Respondent’s Representation: Katherine Hallett (counsel, instructed by TLT LLP)Second Respondent’s Representation: Lara Hicks (counsel, instructed by BA Williams) for Third Respondent’s Representation: Did not attend and was not representedDECISION

Cases referred to:

[1]In this case, the Applicant seeks to reclaim ownership of a property that was said to have passed in his estate following his death in 2007.[2]Some fifteen years after his death, the Third Respondent obtained a grant of probate for the Applicant’s estate. Shortly after that, the Third Respondent assented the title to the subject property to himself. He was registered as proprietor on 23rd June 2022.[3]The Third Respondent then sold the property to the Second Respondent. That purchase was partly funded by a loan from the First Respondent. The loan was to be secured by a first legal charge.[4]On 10th February 2023, multiple applications were made to HM Land Registry. First, an application was made to reinstate the Applicant as registered proprietor. He also appears to have made an application for a unilateral notice, but that has not been referred to this Tribunal. Secondly, an application was made to register the Second Respondent as the new proprietor of the freehold interest in the property, and to register the First Respondent’s charge. An application was also made for a standard restriction referring to that charge, but that also appears not to have been referred. The latter application by the Respondents has been treated as having priority because protective searches were lodged in advance.[5]Those applications were referred by HM Land Registry to this Tribunal. The referred matters were heard over three days at which the Tribunal heard evidence and was greatly assisted by detailed submissions from counsel representing the Applicant, the First Respondent, and the Second Respondent.[6]The Applicant, who asserts with some force that he is not dead, claims that the registration of the Third Proprietor was a mistake because it was the result of a fraud and seeks rectification of that mistake. The man who died in 2007 was called John Sokolowski and was not the Applicant. The will that is said to have been made by that man was not genuine and the Third Respondent had not been entitled to any of his estate.[7]The First and Second Respondents did not accept that there was any fraud, but say that in any event the Second Respondent took good title from the registered proprietor after carrying out all reasonable and prudent checks and its application for registration of the transfer should be granted, as should registration of the First Respondent’s legal charge.[8]The Third Respondent has played no part in these proceedings. He did not attend the final hearing. I will need to consider the consequences of his absence in the next section of this decision.[9]The material before the Tribunal at the final hearing included three volumes of the trial bundle (running to over 1,800 pages). The oral evidence and closing submissions covered a wide range of issues. I will attempt to deal only with the key points in this decision, but I have sought to reflect carefully on all of the evidence and the arguments raised. I am very grateful to the experienced and knowledgeable counsel who appeared for the parties at the final hearing and were able to give considerable assistance to the Tribunal in this difficult case, while also each representing their respective client’s interests with great skill.

THE THIRD RESPONDENT

[10]A preliminary point arose at the start of the trial, because the Third Respondent was not present or represented.[11]This means that the Tribunal needs to give careful consideration to rule 34 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. That provides as follows. “If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and(b) considers that it is in the interests of justice to proceed with the hearing.” (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing.”[12]I have also considered the guidance given by the Upper Tribunal in Date-Bah v Radice [2023] UKUT 289 (LC) and Osagie v Onwuka [2024] UKUT (293) LC.[13]It is plain from the wording of rule 34 and the Upper Tribunal authorities that the Tribunal can only proceed in the absence of the Third Respondent if both limbs of the rule are met.[14]I was troubled by the first limb, because it appears that the only notification of the hearing date that was given to the Third Respondent was sent to him by post to the subject property. That is in keeping with the address given for him as the registered proprietor on the register and is arguably sufficient service. I was concerned though that in the circumstances of this case, where there was no suggestion that the Third Respondent had been anywhere near the property since before February 2023, it would be somewhat artificial to say that the Third Respondent had in fact been notified of the hearing. I also doubted that it could be demonstrated that reasonable steps had been taken by simply sending a notice of hearing to an address that all other parties accepted that the Third Respondent had no effective connection to.[15]My attention was drawn to two emails from Mr Akinwale, the Second Respondent’s director, to the Third Respondent in February and March 2023, in which Mr Akinwale was trying to get hold of the Third Respondent. One of the emails refers to several attempts by Mr Akinwale to contact him on the telephone, without any success. While this is all consistent with the Third Respondent having gone to ground, it does not assist with showing that reasonable steps had been taken to notify him of the hearing when it was before the matter was even referred to the Tribunal and over two years before any hearing date was listed.[16]I was also shown a trace report prepared in July 2024. The tracing agents have been given extremely limited information as they only had the Third Respondent’s name, the address of the subject property, and a mobile telephone number. The very brief report states that the agents have been unable to confirm a current residential address for the Third Respondent. He was, apparently, linked to an address in East London and two possible telephone numbers had been identified, but they only went to an answer machine. Although a full address was given for the East London property, no further details were given about any enquiries made at that address. There is no detail given about any answer machine messages on either telephone number. I do not criticise the tracing agents, because I do not know quite what they were asked to (and it appears that they did not charge for their services), but on its own this is a most perfunctory attempt to locate the Third Respondent.[17]I heard some evidence from Karl Stand, the Applicant’s son, who had been in contact with the police on behalf of the Applicant. He said that at quite an early stage in discussions with police they had confirmed the Third Respondent was their prime suspect and that he had left the country. They did not tell Mr Stand where he had gone to, but told him that they had used internal means to confirm that he was no longer in this country and that a European Arrest Warrant had been issued for him.[18]While this did all strongly suggest that the Third Respondent might be difficult to track down, I was concerned that no attempt appeared to have been made to notify him of the hearing through various contact details, both email and telephone, that he had provided in 2022 (including contact details that were contained in the material in the trial bundle but which had been previously overlooked). At my request, the parties attempted to contact the Third Respondent during the course of the hearing. I am very grateful to them for the steps that they took. I was provided with evidence that despite taking these steps, no response was received.[19]In those circumstances, I was satisfied that reasonable steps had been taken to notify the Third Respondent of the hearing. Notice had been sent to the address on record at HM Land Registry and no other address had been provided by him. Although the tracing agents had linked him with another London property, the evidence of Mr Stand was that the police believed that the Third Respondent had left the country and so there would be little to be gained from sending notice of the hearing to that address. All other contact methods that were known for the Third Respondent had been tried without any joy. There did not appear to the Tribunal to be any further step that could realistically be taken.[20]It seemed to me that the second limb of rule 34 was very easily satisfied on the facts of this case. All parties present wanted the Tribunal to proceed. They had put a great deal of effort into their preparations and were keen to have the disputes between them resolved. It was extremely doubtful that the Third Respondent would attend any adjourned trial even if he could be tracked down. It was therefore plainly in the interests of justice to proceed with the hearing. The Applicant and the Second Respondent are entitled to know which of them owns the property and the First Respondent is entitled to know whether or not it has the security that it bargained for.[21]I should also add that I was quite properly referred to correspondence from an energy company addressed to the executors of the Third Respondent. Other than this, there was nothing to suggest that the Third Respondent had died and I consider it more likely that this was just an administrative error in addressing the post by the energy supplier.

EVIDENCE

[22]The Tribunal was presented with evidence on behalf of the Applciant from the Applicant himself, Mr Stand (the Applicant’s son), Paul Briers (a resident of 211 Boston Manor Road), and Joseph Johnson (a resident of 207 Boston Manor Road). The first two gave oral evidence, but neither Mr Briers nor Mr Johnson attended to be cross-examined on their statements. I was told by Mr Price that this was because they were away. On behalf of the First Respondent, the Tribunal had a witness statement from Denitsa Nedyalkova (Legal Counsel employed by the First Respondent). She also gave oral evidence. On behalf of the Second Respondent, the Tribunal had a witness statement from Mr Akinwale (the company’s sole director). He also gave oral evidence.[23]It is important to recognise that in assessing the witness evidence to determine disputes of fact, the Tribunal applies the civil standard of proof, i.e. the balance of probabilities, or whether something is more likely than not. I explained the approach taken by the Tribunal to evaluating witness evidence in Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC), at [67]-[86]. I intend to adopt the same approach here, without needing to repeat everything said in those passages.[24]At the start of his oral evidence, the Applicant confirmed a witness statement that he had given in these proceedings, and a statutory declaration that had been prepared to support his original application.[25]In his evidence, the Applicant explained that he had purchased the property in 1990 for around £110,000 and it had been his principal residence since then. He said that he had never been known as John or used that name. Neither the man who died in 2007 or the Third Respondent had anything to do with this property. He does not know the witnesses to the will or have any connection with Blackburn where John Sokolowski died and where both the witnesses to the will lived.[26]The Applicant’s account of his living arrangements is a little confused. He says in his statutory declaration that he lived alone at the property from the time that he purchased it to around March 2020. At the beginning of the COVID-19 pandemic, he moved temporarily to live at his son’s family home, which is about three miles away. He kept his personal belongings at the property and visited every three weeks to collect post. There had been a break-in at the property in November 2019 and it was ransacked. Personal papers were taken, which he thought may have been related to what he considers to be a fraud. He was worried about being in the property on his own, so he started spending more time at his son’s house. The property needed renovating after the break-in and so he has continued to reside with his son after the pandemic. He says that his visits to the property became less frequent, but he continued to go back to it “now and then” to pick up post. He continued to pay bills for the property, although he accepts in his witness statement that there was a period of time when some utility bills were not being sent to him and payments were not taken from his bank account. He continued, however, to pay council tax.[27]In that witness statement, the Applicant presents a slightly different timeline. There, he says that his son moved to Poland from 2016 to 2018 and during that period he started to spend a lot of time at his son’s house, sleeping there most nights. He would regularly return to the property to pick up post and spend some time. This arrangement continued when Mr Stand returned from Poland.[28]In January 2023, he needed to renew his car tax, so went to the property on 24th January to collect a letter from DVLA about this. When he got there, he saw a group of around six men, with three removal vans, clearing out the property. He asked what they were doing and was told that the property had been sold and he had to call their “boss”. He tried calling that day, but did not get an answer. One of the men said that the boss would met him there the next day. Mr Stand called the police for him and they waited until 8pm, but the police did not attend that day. His son spoke with the police later that evening and was told that they would attend the following day. He and his son went back the following day. The police attended but did not do anything. The Applicant put padlocks on the property. He went past the property again and saw that the locks had been forced. He obtained a letter addressed to the Second Respondent.[29]On 28th January, the Applicant was notified by neighbours, via his son, that people were again at the property. Mr Stand called the police and they attended. The Applicant said in his statement that “the police instructed the so-called new owner to secure the Property”, which appears to be a reference to Mr Akinwale.[30]The Applicant says in his witness statement that he has continued to regularly go back to the property and keep guard. All of the utilities bills are now back in his name and he pays them. He says that he has worked through his life and put his money into the property, which was his pension and security. His son is going to be doing extensive renovations at his own property and so the Applicant cannot live there when that happens.[31]The Applicant was cross-examined by Miss Hallett and Miss Hicks. It was apparent that there was, on occasions, a degree of misunderstanding because English is not his first language. I consider that he was an honest witness who was generally doing his best to assist the Tribunal, although there was a tendency to downplay the extent to which he had detached himself from this property.[32]While there was some discussion about whether the property was habitable or uninhabitable at various times, I understood the Applicant to accept that it was not in a good state. He agreed that he was a hoarder, which had undoubtedly contributed to the condition of the property, although he attributed any defects to the break-in. His evidence about access to the property after the Second Respondent’s purchase was a little confused, possibly because of some misunderstanding over the meaning of the word “access”, but by the end of his evidence his position was that the last locks that had been fixed to the property were his and he had the keys to him. He described a situation where he and the Second Respondent had been changing the locks like a “yo-yo”. I will return to other features of his evidence as necessary later in this decision.[33]I have already described the oral evidence given by Mr Stand concerning his conversations with the police about the Third Respondent’s whereabouts. In this section of my decision, I am concerned with his evidence in relation to the substantive case.[34]A lot of Mr Stand’s lengthy statement amounts to commentary on documents or his comments on the actions of the Respondents. Those aspects of his statement were not particularly useful to the Tribunal and I do not attach much weight to them. Mr Price, quite rightly, did not seek to rely in his closing submissions on those parts of Mr Stand’s evidence. So far as relevant, the significant features of Mr Stand’s witness statement are that he supports his father’s evidence of having bought the property in 1990 and of having started to spend nights at Mr Stand’s house in 2016 when Mr Stand and his family moved to Poland for two years. He explains that his father continued to spend a lot of time at that house after Mr Stand and his family returned home, but says that it was important for his father to maintain his independence by going back to the property.[35]Mr Stand’s statement also refers to a burglary at the property in November 2019. He went to visit the property after this and was shocked at the state of it. When he had visited previously he had considered that it was messy, but that was how his father lived. After the break-in, however, he realised just how much his father had been hoarding there.[36]Mr Stand explains in his statement that he was at home on 25th January 2023 when his father told him that he had been to the property the day before and what he had found there. Mr Stand called the number that his father had been given and spoke to someone who told him that the house had been sold. Mr Stand said that it had not been sold and that he was going to call the police. He and the Applicant went to the property. There was nobody else there, so they let themselves in. Mr Stand thought that around 90% of his father’s stuff had been cleared out. Mr Stand also says in his statement that his father started to keep a watch on the property and took steps to secure it with padlocks, but it was obvious that the locks had been picked and forced and that people had been trying to let themselves into the property.[37]Mr Stand also said in his statement that he intended to move out of his house while some renovation works were carried out and his father will need to find somewhere to live during that time.[38]In his oral evidence, Mr Stand said that he had visited the property the previous day. His father had unlocked the door so they could enter.[39]After hearing Mr Stand give evidence, I am satisfied that he was an honest witness who was seeking to assist the Tribunal. It is clear that he thinks that his father has been the victim of a serious fraud and this has led to him developing strident opinions about the roles played by other parties. In my judgment though he was a solid and reliable witness on matters of fact.[40]The Tribunal also had written statements from those living on either side of the subject property, Mr Briers and Mr Johnson.[41]Mr Briers says in his statement that he has lived next to the property for around 20 years and that for most of the years that he had lived there he would see the Applicant on a daily basis. He states that he has never known anyone by the name of John Sokolowski or Peter Petrovics.[42]In around 2019, there was a break-in at the property, which had been witnessed by Mr Briers’s father.[43]He goes on to say that in around 2022 a notice was attached to the front of the property, indicating that the Applicant had passed away. After this, “a rumour circulated in the neighbourhood that Mr Sokolowski was deceased”. Mr Briers then says that his mother told him that she saw someone visiting the property in around the autumn of 2022, and that this person claimed to be from a housing association. Mr Briers says that he was unaware that the property had been sold as there had not been a ‘For Sale’ sign at the front of the property.[44]In around mid-January 2023, he saw four or five people arrive at the property in vans. They removed several van-loads of furniture. A few days after that, Mr Briers saw the Applicant standing outside the property. As he says, this was “unexpected given that I had not seem him for some time and there was a rumour that he was no longer alive”. He spoke to the Applicant, they went inside the property and exchanged telephone numbers, and the Applicant then secured the property.[45]Towards the end of January 2023, Mr Briers saw two men outside the property, along with a third man who appeared to be overseeing the other two. As he thought that they were going to continue clearing the property, Mr Briers telephoned the Applicant, who then came round. The police also attended and eventually told everyone to leave.[46]Mr Johnson says in his statement that he has lived next to the property since around 1973, and that he has known the Applicant as his neighbour since he first moved in. For most of the time, he would see the Applicant on a daily basis, but he believed that the Applicant had retired several years ago and since then had only seen the Applicant occasionally.[47]Mr Johnson describes witnessing an apparent break-in to the property in late 2019 or early 2020. He spoke to Mr Briers’s father about it. He heard noises coming from inside the property the following day and spoke to Mr Briers’s father about it again. The police were called and attended. The Applicant was also contacted and attended the property. Someone padlocked the front door. The Applicant may have stayed at the property for around a week after this.[48]In early 2022, a notice of possession was attached to the front door of the property, indicating that the Applicant had passed away. Mr Johnson and his wife, and other neighbours, therefore believed that the Applicant had died. In around December of that year, he saw two men entering the property. He spoke to them and they said they were clearing the property because it was to be valued. He then saw someone else who appeared to be inspecting the property. He assumed that this was for a survey.[49]In around mid-January 2023, he saw four or five people arrive at the property in a car and a high-sided vehicle. They forced open a door to the garage and started to clear the property. One of the men involved told Mr Johnson that he worked for a company called “Mato”. Two days after this, the Applicant arrived at the property and attempted to stop people from continuing to clear it. Mr Johnson says that he and his wife were “shocked to see him as we believed he had died”. The day after that, the Applicant arrived at the property, as did the clearance men and two other people who appeared to Mr Johnson to have some interest in the property. The police also attended, and the Applicant later told Mr Johnson that the police had instructed that nobody was to enter the property.[50]On 11 February 2023, Mr Johnson saw two men enter the property with what appeared to be a camera or measuring device. They were there for around an hour.[51]Neither of those witnesses attended to give oral evidence. Accordingly, the weight to be given to their statements is limited, although no party suggested that there was anything significantly wrong in either statement.[52]Denitsa Nedyalkova is employed by the First Respondent as Legal Counsel. She started working for the First Respondent in May 2023. It therefore follows that she had no direct involvement with the relevant transaction in this case. Although I formed the view that she was a palpably honest witness doing her best to assist the Tribunal, I did not find her evidence to be of much assistance in this case. She explains in her witness statement that she is not familiar with the First Respondent’s underwriting criteria and so had sought input from the underwriting team. I intend no criticism of Ms Nedyalkova when I say that this evidence would have been better coming from a member of that team who had been involved with the transaction. As it was, Ms Nedyalkova’s evidence really only consisted of commentary on documents.[53]In her evidence, she explained the terms of the loan and that the Second Respondent initially wished to instruct Selvarajah & Co to deal with the purchase. That firm was not on the First Respondent’s panel of approved solicitors, so Vicarage Court Solicitors were used instead. Based on information provided as part of the loan application, including information about another company owned by Mr Akinwale, a decision was reached that he was creditworthy and loan offer was issued in November 2022. The Second Respondent agreed the terms of the loan and agreed to provide security by way of a first legal charge over the property, a debenture over all its assets, and a personal guarantee from Mr Akinwale.[54]Ms Nedyalkova also described the valuation process that was undertaken, which led to a cash value of £550,000. It was noted that the value when the Third Respondent was registered as proprietor just a few months earlier was £270,000. Vicarage Court recommended that an Insolvency Act indemnity policy should be obtained and a policy was then arranged. The loan was completed and the sum of £403,695 advanced.[55]Ms Nedyalkova concludes in her statement that there was nothing during the loan application process to indicate that anyone other than the Third Respondent had any interest in the property. The First Respondent did not have any direct contact with him and there was nothing to suggest that this was not a typical loan application.[56]Ms Nedyalkova said in her oral evidence that having spoken with other people at the First Respondent they considered that this was a “vanilla” transaction. She agreed with Mr Price that the First Respondent was a high-risk lender.[57]Finally, Mr Akinwale gave evidence. In his witness statement, he explained that the Second Respondent company had been incorporated on 10th October 2022. Two days after that, he had sold an investment property and was looking for another investment property as a new venture for the Second Respondent. He was made aware of this property by a builder he knew. Mr Akinwale attended an open day in October 2022 and he noticed a large sale sign “in front of the window”. He said that it was marketed through an agent known as Orange Properties. He viewed the property again in November 2022 with another builder to discuss some possible renovation work to it. He then agreed with the Third Respondent to purchase the property for £550,000.[58]Mr Akinwale then explains in his statement how funding was arranged with the First Respondent and the process of instructing solicitors for the purchase. He took a bridging finance loan in the sum of £412,324 for a twelve-month term (this figure is different to the one given by Ms Nedyalkova in her evidence, above, because she was referring to the drawdown amount, which is after certain fees have been taken out of the total amount being loaned). He covered the remaining amount needed to complete the purchase.[59]Following completion, the purchase price was released to the Third Respondent’s solicitors and Mr Akinwale was given access to the property. On 26th January 2023 (his statement says 2024, but this is an obvious typographical error, albeit one that was repeated from the Second Respondent’s Statement of Case), Mr Akinwale called the police because a man attended and claimed that he owned the property.[60]Mr Akinwale says that he had no reason to suspect that the Third Respondent did not own the property or was unable to sell it. He had no reason to suspect fraud. Solicitors were engaged and all protocols and procedures were properly followed.[61]Mr Akinwale’s witness statement is very brief, with the text covering less than three full pages. In stark contrast, his oral evidence lasted for most of the second day of the hearing. I must take into account that he was giving evidence for far longer than any other witness and this was plainly a stressful experience.[62]Making appropriate allowances for those circumstances, I did not find Mr Akinwale to be a particularly impressive witness. Early on in cross-examination, Mr Price asked Mr Akinwale about correspondence suggesting that he wanted to complete the purchase in two weeks. Mr Akinwale’s answer was that counsel’s maths was wrong. It was not. It was Mr Akinwale that was wrong on this point. When this was pointed out and he was asked again to answer the question, he proceeded to give a long, rather rambling, answer which did not engage with the question. It was only when he was asked the question for a third time that he agreed that he had wanted the purchase completed within two weeks. This was a simple and obvious answer. Mr Akinwale’s reluctance to deal with this straightforward point makes me doubt the quality of his evidence.[63]Mr Akinwale’s evidence was also most unhelpful when he was challenged by Mr Price that there was no “For Sale” sign at the property. Mr Akinwale said that we had already got his answer and that he did not like being accused of lying. Despite being asked twice by the Tribunal to answer the question, Mr Akinwale refused to do so. It is right to say that Mr Akinwale had already given evidence that he had seen a sign in the window, but the Tribunal would ordinarily expect a witness to answer a question, particularly when the witness has been expressly asked by the Tribunal to deal with it. It is also noticeable that Mr Akinwale’s oral evidence concerning the sign did not tally with his written evidence. In his statement he said that there was a “large sale sign in front of the window”, but in re-examination he said that it was inside the window, propped up on the window ledge internally.[64]Mr Akinwale’s oral evidence also contained a lot of important details that had not featured in his brief witness statement. His explanation for this was most unsatisfactory, as he resorted to repeating that the witness statement had been drafted through a question and answer process. That is not a sufficient explanation, as it is incumbent on a witness to make sure that their witness evidence contains all the material facts.[65]I also should take into account that there could be an explanation for the way in which Mr Akinwale approached his evidence which did not call into question the accuracy of that evidence so far as related to the material issues in this case. This is that during the purchase process he had declared that the full rate of Stamp Duty Land Tax (“SDLT”) was not payable for the property, although he was told by conveyancing solicitors that the full rate might be payable and that he should get specialist advice (which he did not do). Miss Hicks accepted in her closing submissions that the Tribunal might think that Mr Akinwale had been a bit evasive in his evidence, but that this might have been because of the SDLT issue.[66]I have reflected on this point carefully. I make clear that I am not in any position to make any finding about the SDLT position relating to the property, although Mr Akinwale’s statement to his solicitor that there was no kitchen in the house was not true, and I did not think that this was improved or save by his attempts in cross-examination to read words into his email to the solicitor. His inability to recognise this was most concerning, although I of course remind myself that this does not mean that all of his evidence has to be rejected.[67]In my judgment, Mr Akinwale’s evidence before the Tribunal may have reflected a concern that he was open to some criticism with regard to SDLT, whether rightly or wrongly, which caused him to be unclear in parts of his evidence and to seek to avoid difficult issues in other parts of it. I also consider that this was not the only reason for Mr Akinwale’s evasiveness in parts of his evidence. It is my view that there are other aspects of his dealings with the property that are questionable, to say the least, such as his failure to take any steps to ensure that the Second Respondent dealt with responsibility for utilities and council tax. In my judgment, this also contributed to some of the unsatisfactory nature of his evidence. Furthermore, I consider that the reality is that Mr Akinwale now appreciates that there were elements of the process of this transaction that, certainly with the benefit of hindsight, ought to have raised concerns.

THE LAW

[68]Much of the applicable legal framework was agreed, but there were some issues between the parties which I will need to address in this section of the decision.[69]Without replicating everything that was set out in the detailed skeleton arguments that had been very helpfully prepared, I will deal here what seem to me to be the key legal points raised by the parties.[70]One of the fundamental differences between the system of registered title and the traditional system is that registration vests the legal title in the registered proprietor, whether or not there was a valid transfer to them: see Megarry & Wade: The Law of Real Property (10th ed), para.6-001. This is achieved by Land Registration Act 2002, s.58(1), which provides as follows. “If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration.”[71]The register can be altered. Alteration is dealt with by Sch.4 of the 2002 Act. Schedule 4 is given effect by s.65. Paragraph 5 provides that the registrar may alter the register for the purpose of correcting a mistake or bringing the register up to date (amongst other reasons). Paragraph 1 provides that alteration is treated as rectification where it involves the correction of a mistake and prejudicially affects the title of a registered proprietor.[72]In Suhitharan v Iwaskiewicz [2025] UKUT 144 (LC), the Upper Tribunal emphasised the importance in rectification cases of identifying precisely what the mistake to be corrected is, recognising that sometimes there may be two (or even more) mistakes.[73]The Act does not set out what constitutes a “mistake”. The Respondents relied on the decision of Mr Holland, sitting as a Deputy Adjudicator to HM Land Registry, in Stewart v Lancashire Mortgage Corporation Ltd REF/2009/0086, which they submitted was relevant to this issue. They sought to take two points from this decision.[74]The first was that, based on [2] and [48]-[49] of Stewart, because the Respondents’ applications had day list priority (which appeared to be accepted by the Applicant), the Tribunal should determine their applications first and then, at the very least notionally, grant them.[75]The second point, which was based on [73]-[81] of Stewart (and the prior discussion at [50]-[72]), was that even if the registration of the Third Respondent as proprietor was a mistake, the registration of the subsequent transfer to the Second Respondent and the registration of the First Respondent’s charge would not be mistakes because any dispositions by the Third Respondent while he remained the registered proprietor were valid and not a “mistake”.[76]Things have moved on considerably since the decision in Stewart. Mr Holland considered and declined to follow the earlier decision of another Deputy Adjudicator, Mr Rhys, in Ajibade v Bank of Scotland REF/2006/0163. Shortly after the Stewart decision, both of those cases were considered by Mr Mark, sitting as a Deputy Adjudicator, in Knights Construction (March) Ltd v Roberto Mac Ltd [2011] 2 EGLR 123. Partly because of the conflict between those two cases, the Chief Land Registrar was joined as a party and made submissions on rectification and indemnity, and on the differences and similarities between the 2002 Act and its predecessor, Land Registration Act 1925.[77]Mr Mark conducted a thorough analysis of the position under the 1925 Act, relevant Law Commission publications, and the 2002 Act. He concluded that the 2002 Act did not remove from a former owner of land the right to have the register rectified just because, following a mistake, a third party had acquired an interest in it for valuable consideration.[78]Mr Mark’s analysis was praised as “learned and lucid” in MacLeod v Gold Harp Properties Ltd [2014] EWCA Civ 1084; [2015] 1 WLR 1249, at [80]. Perhaps more importantly than praising it, the Court of Appeal also agreed with his analysis.[79]Mr Price also referred me to NRAM v Evans [2017] EWCA Civ 1013; [2018] 1 WLR 639, in which the Court of Appeal had recognised that there was distinction between the registration of a voidable disposition before it was rescinded, which was not a “mistake”, and the registration of a void disposition, which was a “mistake”.[80]In my judgment, it is apparent from the two Court of Appeal decisions that the correct understanding of “mistake” is as explained by Mr Mark in Knights, and by the Court of Appeal in MacLeod and NRAM. If, therefore, the Applicant is right that the registration of the Third Respondent as proprietor was the result of fraud (in which case that registration would be a mistake) then the subsequent registration of the Second Respondent as proprietor could be rectified in order to correct a mistake because either it forms part of the original mistake and reversing it forms part of the correction of the mistake, or it is a consequence of a mistake and in order to fully correct that mistake it is necessary to reverse it so as to reinstate the Applicant as registered proprietor: see Knights and Ruoff & Roper: Registered Conveyancing, para.46.029. The same would also follow in relation to the registration (notional or otherwise) of the First Respondent’s charge.[81]While rectification might be available in principle to the Applicant to correct a mistake, the power under para.5 to alter the register is constrained by para.6 where it would amount to rectification. Sub-paragraphs (2) and (3) of para.6 are relevant here. “(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless—(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or(b) it would for any other reason be unjust for the alteration not to be made. “(3) If on an application for alteration under paragraph 5 the registrar has power to make the alteration, the application must be approved, unless there are exceptional circumstances which justify not making the alteration.” (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made.[82]For these purposes, land is in the possession of the proprietor of a registered estate in land if it is physically in their possession, or physically in the possession of a person who is entitled to be registered as the proprietor (unless their entitlement to be so registered only arises from Sch.6, dealing with adverse possession): s.131(1), (4). The requirement for physical possession is to be interpreted in accordance with the general law as to the meaning of possession: see J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; and Paton v Todd [2012] EWHC 1248 (Ch); [2012] 2 EGLR 19, at [60]. In very summary terms, this requires there to be a sufficient degree of exclusive physical custody and control.[83]Mr Price submitted that when considering if it would be unjust or not, I should only take into account the Second Respondent’s circumstances and should ignore the First Respondent. I do not accept that submission. It is quite clear from para.6(2) that it is only possession by the registered proprietor (within the expanded meaning given by s.131) that is sufficient to engage sub-sub-paras (a) and (b), but there is nothing there that prevents other parties becoming potentially relevant when it comes to the second of those conditions. Similarly, it is plain that para.6(2)(a) is only concerned with the culpability of the registered proprietor in possession (again, bearing in mind s.131), but para.6(2)(b) does not contain any words that limit the enquiry to the applicant for rectification and the registered proprietor. Indeed, the wording of para.6(2)(b) is extremely wide (“for any other reason”).[84]Morgan J explained the approach to para.6(3) in Paton v Todd (subsequently approved by the Court of Appeal in Dhillon v Barclays Bank Plc [2020] EWCA Civ 619; [2020] 2 P&CR 19), saying that there were two questions to be asked:
“(1) are there exceptional circumstances in this case? and (2) do those exceptional circumstances justify not making the alteration?” (at [66]). The learned judge addressed the meaning of “exceptional” 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... 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.”
[85]The parties were agreed that the relevant time for considering whether land is in the registered proprietor’s possession is the date of the application. That is supported by [60] of Paton v Todd, and Fitzwilliam v Richall Holdings Services Ltd [2013] EWHC 86 (Ch); [2013] 1 P&CR 19, at [101]. There also seemed to be broad agreement that in considering whether it would be unjust not to make the alteration or whether there were exceptional circumstances which justified not making the alteration, the Tribunal could consider the current position. This was not the subject of any great discussion during the hearing, which had to cover a great deal of factual and legal ground.[86]At present, I am not sure that a sound conceptual basis has been established for treating the date of assessment of these issues differently. If, as Mr Price submitted and as found favour in Fitzwilliam, the justification for assessing the question of possession by reference to the date of the application to HM Land Registry is found in rule 20 of Land Registration Rules 2003 (SI 2003/1417), then it would seem to follow that the same logic should apply in identifying the relevant date for assessing the para.6(2)(b) and (3) questions. In the absence of full argument, it would not be appropriate to depart from the parties’ shared approach. It is also not necessary to resolve this issue in this case because, as will be seen below, the result would be the same whichever approach is taken to para.6(2)(b) and (3).

DISCUSSION & ANALYSIS

[87]I am quite satisfied that the Applicant is alive. He demonstrated as much by attending the hearing.[88]I am also satisfied of the more important point about his role in these proceedings, which is that I find as a fact that the Applicant is the Stanislaw Sokolowski who was the registered proprietor of the property from 1990 until June 2022.[89]Other than the 2006 will, there is nothing to connect the deceased John Sokolowski with the property in Brentford or the name Stanislaw. The 2007 death certificate for John Sokolowski records his place of death as an address in Blackburn, and his usual address as that same address in Blackburn. The 2006 will was, noticeably, witnessed by two people giving Blackburn addresses and it is very odd that in that situation John Sokolowski would state that his address was in Brentford and refer only to a property there.[90]The Applicant has also produced documents linking himself with the property and there was even a photograph on the walls of the property that clearly depicted the Applicant. Although the neighbours did not attend for cross-examination, there was no real challenge to their written evidence identifying the Applicant as the person who had been living at the property.[91]I am therefore satisfied that the Applicant bought the property in 1990 and lived in it as his home for many years. I also accept his evidence, which was not really disputed, that he paid off the mortgage that had been secured against the property when he bought it.[92]I consider that the Applicant’s account of when he started to spend more time at his son’s house has fluctuated and not always been entirely accurate. On the balance of probabilities, I find that he started to spend most of his non-working time at his son’s house from 2016 when his son moved temporarily to Poland. I accept that he may then have increased the time that he spent at the property from 2018 onwards, when his son returned home, but I still consider that he was spending most of his time at his son’s house.[93]It is also apparent that the Applicant had developed severe hoarding tendencies and that the property had become extremely cluttered. I accept though that the Applicant did still spend some time at the property and was able to spend the night there if he wanted to.[94]I also accept that the property was broken into in around November 2019. I am not in a position to make any findings as to whether papers were taken during this process which enabled the Third Respondent to begin the process of acquiring the property, but I can understand why the Applicant thinks that is what happened.[95]I do, however, find as a fact that the Applicant had no connection with the Third Respondent and nothing to do with the 2006 will. In some way, the Third Respondent became aware that there was a property owned by the Applicant, who shared the same last name as someone who had died in Blackburn many years earlier. I am quite satisfied that the Third Respondent, exploited this coincidence to fraudulently have the property transferred to him. I should make clear here, that although the Third Respondent has been identified in these proceedings as Peter Petrovics, I do not know and cannot make any finding as to whether that is really the Third Respondent’s name or whether someone has used that person’s identity as part of this fraud, Although the Applicant pointed out that the proceeds of the sale to the Second Respondent were apparently paid out to a third party with a different name. but I find as a fact that someone using that name made arrangements to falsely and fraudulently claim to be entitled to be registered as proprietor of the property.[96]As there seems to be no reason for the deceased John Sokolowski to have left a will dealing with the property when he had no connection with it, I am satisfied on the balance of probabilities that the will is a much later creation by the Third Respondent. It also follows that the Third Respondent dishonestly and fraudulently applied for probate.[97]Returning to the break-in at the property, I accept that this left the property in an even less presentable state than it had been in before. I accept though Mr Stand’s evidence that it remained inhabitable by his father’s standards. He acknowledged that most people might not choose to live in those conditions, but explained that his father could still do so. I find on the balance of probabilities that the Applicant was not regularly spending much time at the property, which probably made it more tolerable for him when he did go there.[98]It is clear that the Applicant cannot have been spending much time at the property because there was a rumour circulating amongst the neighbourhood that he had died, and some of the neighbours even believed that he had passed away. I have also seen evidence of a document headed “Notice of Possession” that was displayed at the property at some point. From the photograph that was in evidence, it seems that this was affixed to a black bin. Although the Applicant did not see it, I consider that it was unlikely that it was displayed particularly prominently or for very long, as Mr Akinwale also did not see it.[99]It stands to reason that having acquired the property fraudulently from a man who was not dead, the Third Respondent would want to sell it as soon as possible. Mr Akinwale’s evidence about how he came to find out about this was all a little vague and unsatisfactory, but I do accept his evidence that he had not had any prior contact or dealing with the Third Respondent. I also accept his evidence that he attended the property in October 2022 for what he understood to be some kind of open day. It follows that the Third Respondent must have had a way of gaining access into the property. With a degree of hesitation caused by Mr Akinwale’s changing evidence, I also find as a fact that he did see a board marked “Orange Properties” or similar. I consider it likely that this was only on display on that one day, which is why the Applicant and the neighbours did not see it.[100]It is rather surprising that no-one appears to have thought to have made any enquiries of Orange Properties as part of these proceedings. I therefore do not know if they were actually involved in the open day or if the Third Respondent had simply managed to get hold of one of their signs in an effort to seek to give a façade of legitimacy to what he was doing.[101]Either way, it is apparent that the Second Respondent, through Mr Akinwale, had no dealings with Orange Properties as part of the purchase. That is most peculiar when his evidence was that he had assumed that the Third Respondent had engaged Orange Properties for the purpose of marketing the property.[102]I also accept that a valuer attended the property and carried out an inspection. I have seen the valuation report, which states that an inspection was carried out on 30th November 2022. Although I have not heard any evidence from the valuer, there is no reason to think that he did not gain access to inspect the property on that day. There are numerous photographs of the interior of the property within the report, which can only have been included if someone had access. The only logical explanation is that they were taken by the valuer during his inspection.[103]The Applicant protested in cross-examination that the photographs showed damage caused in January 2023, and so could not have been taken during an inspection in November 2022, but in my judgment he is mistaken. In addition to having recorded the date of the inspection, the valuer also signed the report with the date 6th December 2022. If the Applicant was correct, both dates would have to be wrong. This would not fit with the timing of the request for a valuation, which was made on 22nd November, nor does it fit with the lending process, by which the First Respondent agreed to go ahead based on the valuation and produced a Commercial Bridging Loan Agreement, which was signed by Mr Akinwale on 16th December 2022. It follows that the valuation report, with its photographs, must have been prepared before then.[104]It does not seem to me that the timing of the valuation inspection is actually that significant. What it does help to demonstrate though is that the Third Respondent had a means of gaining access to the property, and making provision for access by others. It also shows that the Applicant’s level of engagement with the property was rather limited by this stage (hence why he was not aware that the Third Respondent and others were accessing the property and why he incorrectly thought that damage to a window cannot have been in place at that time).[105]The transaction between the Second and Third Respondents then moved on fairly quickly. It is apparent from correspondence that it did not happen as speedily as the Third Respondent, and to a lesser extent the Second Respondent, wanted, but it did nonetheless complete in a relatively short space of time. A few points are worth noting about this process.[106]First, during the conveyancing process it became apparent that the value of the property in June 2022 had been stated to HM Land Registry by the Third Respondent to be £270,000. That is significantly different to the agreed purchase price later that same year of £550,000. Mr Akinwale said that he was not aware of this because the title documents were part of the conveyancing process between the solicitors, and so the first time that he heard about it was during the evidence in this case. The office copy entry had, however, been sent to him in December 2022 and he responded saying “Deed seen and reviewed”. Mr Akinwale’s explanation was that when he was reviewing the document he was only looking at the names on it. I do not accept this explanation. The figure of £270,000 was only two lines below the name of the Third Respondent as registered proprietor. It would have been almost impossible to miss. I also do not accept that a property developer would have no interest in the declared value. Mr Akinwale’s evidence on this point was simply not reliable, probably because he did not want to accept that he had ignored a potential warning sign.[107]Secondly, the First Respondent said that the difference in values was flagged up to them, which is why an indemnity policy was required. The policy that was taken out was, however, to cover bankruptcy. Ms Nedyalkova’s evidence was that she was not aware of any other property where the probate value was 50% of the market value. On the face of it, it seems rather surprising that this marked disparity was not thought of any significance once the bankruptcy indemnity policy had been arranged. As I did not hear any evidence from any of the underwriters involved, there is no explanation as to why the point was not considered further.[108]Thirdly, the Applicant and his son contend that the purchase price of £550,000 was itself an undervalue and therefore inherently suspicious. In the absence of any proper valuation evidence challenging the view expressed in the valuation report that I have seen, I am not satisfied that £550,000 does represent a sale at an undervalue for a property in the condition that this was in, although I think it can be categorised as a “good” price for a purchaser (particularly as Mr Akinwale’s evidence was that he was hoping to make a profit of £100,000 when he sold it after carrying out some work).[109]Fourthly, after hearing Mr Akinwale’s evidence, I am satisfied that he had further telephone discussions with the Third Respondent which have not been properly accounted for in his written evidence. It is my view that the whole manner of dealing with the Third Respondent should have caused some concern in the mind of an astute property developer (although, as I shall return to below, I do not think that this goes as far as demonstrating a lack of proper care causing or substantially contributing to a mistake on the register).[110]Moving on from that process, there does not seem to be any dispute that the Second Respondent, through Mr Akinwale, gained access to the property and began, through its contractors, to clear it of the Applicant’s belongings. I will come back to this below, when I consider whether the Second Respondent was in possession.[111]Based on the uncontroversial facts and the facts as I have found them above, it is abundantly clear that registration of the Third Respondent was a mistake which had been procured by his fraud. This was not disputed by the Respondents in their closing submissions. I have to say, I found it surprising that faced with the documentary evidence this point had not been formally conceded at a much earlier stage. Nevertheless, there is plainly a mistake on the register in relation to that registration. Even if, contrary to my findings, the will was not a fraudulent document, the intended gift of the property would fail as the deceased never had any legal or beneficial interest in that property. Either way, the purported transfer to the Third Respondent was void.[112]Despite this, the Respondents invite me to then go on to, at least notionally, consider their applications for registration. They rely heavily, and entirely understandably in the circumstances, on s.58, 2002 Act. They point out that, had the timing of the Applicant’s application been only slightly different, it is likely that their applications would have been processed and granted and he would have then been left to make his rectification application without their applications having been referred to the Tribunal.[113]On behalf of the Applicant, Mr Price submits that it is necessary to consider what the registrar should have done with the Respondents’ application for registration if they were processing it with knowledge of the earlier fraud. He submits that if the registrar became aware that the existing title was based on fraud and a void transaction, the registrar cannot register a subsequent transfer that is dependent on that transaction.[114]Those are powerful submissions, but Mr Price was compelled to accept that s.58 created a problem, because the Respondents were entitled to rely on the existing title unless it was subsequently rectified. That, however, is the focus of the Applicant’s application and the Respondents submit that the application for registration of the transfer to the Second Respondent needs to be addressed first in time, at which point the title would not have been rectified.[115]There is a certain artificiality about this aspect of the case in the circumstances as they have arisen. While the Respondents may well be correct that in similar rectification cases the second transfer will have already been registered and the only issue is rectification, the fact is that in this case both stages are before the Tribunal as one consolidated reference. It strikes me as potentially illogical to consider the registration application in isolation and to almost pretend that the rectification application was not waiting next in the queue.[116]It also seems to me that this is all a little academic, because the main benefit that the Respondents seek to derive in this case from dealing with the rectification application second is to set up the argument that there then would not be a mistake on the register, at least as against their interests.[117]But even if the transfer to the Second Respondent and the First Respondent’s charge are registered, notionally or otherwise, it is my judgment that they are not able to say that there is no mistake to be corrected on the register in relation to the dispositions involving them. The Respondents’ argument to the contrary rested on the disapproved reasoning in Stewart. That therefore takes us to the limitations on rectification in para.6 of Sch.4 to the 2002 Act.[118]It is clear from s.131 that possession by the Second Respondent can be relevant for the purposes of Sch.4, para.6, even though the Third Respondent is currently the registered proprietor, because (subject to what I have said above), the Second Respondent would be entitled to be registered as proprietor of the freehold estate. It is also clear from s.131 that the reference to “possession” means “physical possession”. Bearing in mind, that “possession” in the context of land can have multiple meanings: see, e.g., M Wonnacott, Possession of Land (2009).[119]I am not satisfied that the Second Respondent was in possession of the property at the time that the rectification application was made. In my judgment, the property was not physically in the possession of anyone at that time. The situation was in a state of flux when the application for rectification was made.[120]The starting point for this issue is the Second Respondent’s pleaded Statement of Case. There is no pleading there that the Second Respondent was in possession of the property. Paragraph 5 does state that there cannot be rectification without the Second Respondent’s consent, which is probably intended to refer to para.6 (although the wrong statutory provisions are actually pleaded at this point). There is, however, no express pleading that the Second Respondent was in possession. Nor are any facts particularised which could support a claim to have been in possession. The height of the pleaded case on this point appears to be at paragraph 20, where it is stated that following completion the “Second Respondent was then given access to the Property and began clearance of the Property which was in a derelict state”. No further details are given. The position as at 10th February is not addressed.[121]Mr Akinwale’s written evidence does not take matters any further, because at paragraph 16 of his witness statement he effectively says the same as in paragraph 20 of the Statement of Case (including repeating an error in a date).[122]The case in support of the Second Respondent being in possession only began to emerge in the oral evidence. The evidence of both the Applicant and Mr Akinwale on this point was rather muddled and confused. Mr Akinwale accepted, however, that at times the Applicant had put padlocks on the property. Although Mr Akinwale did not describe the situation as being like a “yo-yo”, as the Applicant did, his description of events seems to fit with the Applicant’s account in that there was considerable back and forth with both of them attempting to secure the property against the other and, presumably, anyone else, but without any clear measure of success.[123]Mr Akinwale was asked in his evidence about some photographs of the interior of the property that had been disclosed by the Second Respondent at a very late stage in these proceedings. They were not provided until a fortnight before the hearing, despite having apparently been taken in November 2022 and February 2023. No proper explanation was ever given for this delay. Leaving that to one side, the series of photographs from February 2023 are most revealing. Mr Akinwale’s oral evidence was that they were taken by an estate agent on 11th February 2023. They show that there has been considerable clearing taking place in the property, but that much of the Applicant’s furniture remained in it and there were still several bags of miscellaneous belongings in the property.[124]The best point in favour of the Second Respondent being in possession on 10th February is that Mr Akinwale was able to get into the property the following day with the estate agent. The parties were agreed that actions after 10th February were only relevant insofar as they might shed some light on who was in possession on 10th February, but given that he and the Applicant had been busy removing locks and getting into the property, I am not satisfied, in circumstances where no details had been given in the written evidence, that Mr Akinwale has demonstrated that the Second Respondent had a sufficient degree of exclusive physical custody and control to be in possession of the property.[125]I do not accept Mr Akinwale’s oral evidence that he left a jackhammer in the property in January 2023 and returned to collect it in the summer of 2024. This had never been mentioned before and in my judgment, I cannot be satisfied that this was an accurate account. Even if it was, it merely means that both he and the Applicant had belongings at the property, but the Applicant had far more, even after the clearing that had taken place, and I cannot accept that the presence of a tool demonstrates possession by the Second Respondent.[126]It is noticeable that one of the documents within the trial bundle was a letter dated 4th May 2023 from the local housing authority to the Applicant. It was addressed to him at the property, and disclosed by him in the course of these proceedings. The most likely way for him to have had a copy of that letter is by collecting it from within the property. I am satisfied that this is what he did, and this supports his claim to have been going into the property from time to time to check on it. Although this is rather more removed from the crucial date of 10th February than Mr Akinwale’s visit to the property on 11th February, what it appears to show is that either of them were able to come and go as they pleased. At the very least, the Applicant was, and this casts further doubt on any (unpleaded) claim that the Second Respondent was in possession.[127]It is not necessary to go as far as to say that the Applicant was in possession. It is only necessary for the purposes of Sch.4, para.6, to find that the Second Respondent was not in possession. While that would normally mean that someone else is in possession, that does not always follow. As I have already indicated, it is my view that neither the Applicant nor the Second Respondent had exclusive physical custody and control of the property.[128]Accordingly, the application for rectification must be approved unless there are exceptional circumstances which justify not making the alteration, and the Applicant does not need to satisfy the tests set out in (a) or (b) of para.6(2): see para.6(3). In case I am wrong though on the issue of possession and the property was in the Second Respondent’s physical possession when the rectification application was made, I shall also consider the remainder of para.6(2). It is most convenient to deal with that now, before going on to para.6(3).[129]The first sub-issue under para.6(2) is whether the Second Respondent has by fraud or lack of proper care caused or substantially contributed to the mistake.[130]It is necessary here to be very careful to identify what the relevant mistake is. In my view, this is the registration of the Third Respondent as proprietor. There is no basis on the evidence before me for criticising the Second Respondent in any way for the initial registration of the Third Respondent as proprietor. In my judgment, that registration was plainly a result of fraud, but that was caused by the Third Respondent. The Second Respondent is blameless in that regard. The Third Respondent’s fraud is, however, not relevant at this stage, because he is not in possession of the land on any analysis.[131]Even if I am wrong on this, I am not satisfied that the Applicant has showed that there was a lack of proper care on the part of the Second Respondent that caused or substantially contributed to any later mistake. I do think that there was perhaps a lack of caution on the part of that company and Mr Akinwale, but in circumstances where conveyancing solicitors were engaged to deal with the transaction, this does not demonstrate a causative lack of care. I make clear here that I did not understand there to be any suggestion of fraud on the part of the Second Respondent. If there had been, I would not have accepted any allegation of fraud in the transaction. For the avoidance of doubt, I am not making any finding one way or the other about SDLT, which is not an issue for this Tribunal to determine.[132]That leads on to the second issue, which is whether it would be unjust if the alteration is not made. I shall assume, to the benefit of the Respondents, that there is, as submitted by the First Respondent, a strong presumption against rectification against a registered proprietor in possession (and on this hypothetical analysis I am assuming that, contrary to my earlier finding, the Second Respondent was in possession).[133]I nonetheless consider that it would be manifestly unjust not to make the alteration reinstating the Applicant as registered proprietor. He is the victim of a fraud, depriving him of his home that he has invested in over many years. He lived there for over 25 years. The evidence shows that, although the Second Respondent has carried out clearing work, some of the Applicant’s belongings remain in the property. His loss is not just the financial value of the property. He has lost his home of very many years. In my judgment, this is a very weighty factor.[134]I bear in mind that the consequences for the Second Respondent may be extremely serious. The property is, or will be, its only asset. Mr Price accepted in closing submissions that the company will almost certainly be insolvent. He submits that this is not out of the ordinary when purchases go wrong. While that is true up to a point, I recognise that there will be a substantial degree of injustice from the perspective of the Second Respondent. Bearing in mind the nature of the Second Respondent’s business and the inevitable degree of risk that property investment companies take, I consider that this injustice is heavily outweighed by the consequences for the Applicant if the alteration is not made.[135]In my judgment, Mr Akinwale was aware that this was a risky transaction. On the Second Respondent’s case, it was being sold in a most informal fashion. Despite being apparently marketed by an agent, Mr Akinwale and the Third Respondent bypassed the agent and agreed the purchase between the two of them. That alone should have caused him to be a little suspicious. Mr Akinwale was also not upfront and honest with his solicitors about all of the details. He was unable to provide any convincing explanation as to why the Second Respondent had not notified the local authority that it was taking responsibility for council tax, or to contact the utility providers, but it is all suggestive of a degree of opportunism to maximise profits and to take any available shortcuts.[136]I take into account that the Second Respondent had arranged for some clearing of the property and so in some ways it might be said to be in a better condition than it was before the Applicant lost his title. I do not, however, consider that this would mean that the Applicant was getting the benefit of any unjustified significant windfall. No substantive renovations were ever undertaken by the Second Respondent, and that company had avoided accepting liability for council tax and utilities.[137]I have already said that I consider that the First Respondent’s position can be taken into account when deciding whether or not it would be unjust not to make the alteration. In my view though, this does not really assist the active Respondents much. The First Respondent is a lender that specialises in high-risk transactions. It has a personal guarantee for the loan and so is not left without any remedy at all, although I recognise that this may not be cover the entirety of the Second Respondent’s debt. I do not consider that the fact that it will not have the specific security that it bargained for sufficiently tips the balance of the scales of justice so as to prevent the Applicant from being reinstated as the proprietor of what was, for many years, his home (even if he had more recently been spending most of his time at his son’s house).[138]I also consider that I can and should take into account Mr Akinwale’s circumstances separately to those of his company. It is my view that this is consistent with the broad approach that I have taken to para.6(2)(b). There was limited evidence from Mr Akinwale about the potential consequences for him. I recognise though that there is a strong possibility that his home will be at risk, given the personal guarantee that he has given to the First Respondent. It was even suggested that enforcement could end up with his bankruptcy.[139]This has all caused me considerable concern because this would affect not just him, but also his family. I have considerable sympathy, particularly for his family or anyone else connected with Mr Akinwale who may be affected. In the end, I am not persuaded that this means that it is not unjust to not make the alteration sought by the Applicant. He has already lost his home. It would be unjust to perpetuate the effects of the fraud upon him in order to protect Mr Akinwale when it is not inevitable that Mr Akinwale will be forced to lose his home (although as I have said, I accept that there is a strong possibility of this). Ultimately, Mr Akinwale entered into this transaction through the Second Respondent for his own pursuit of profit. That always comes with risks. It is deeply unfortunate that the risks have turned out to be what they are, but in my judgment it would too unjust to the Applicant to spare Mr Akinwale from the consequences of this bad investment.[140]It is a sad, but almost inevitable, fact of fraud cases involving a missing fraudster that some innocent party (or parties) will end up effectively paying for the fraudster’s ill-gotten gains. Regrettably here this burden may end up falling on Mr Akinwale (subject to any indemnity that the First or Second Respondents can secure). I appreciate that this will not feel just to him, but it is my assessment that it would be unjust for the loss to fall on the Applicant and so it would be unjust if the alteration is not made.[141]I do not consider that the potential availability of indemnities from HM Land Registry affects the analysis in this case. To the extent that this is relevant, which may be open to doubt, the Applicant suggested that the Respondents could pursue claims for indemnities if his application succeeded, and the Respondents suggested that he could pursue his own claim if his application for rectification failed. I cannot form any view on the likely merits of success for any party and so it seems to me that the possibility of an indemnity does not, in the circumstances of this case, assist with determining whether it would be unjust not to make the alteration.[142]It does not seem to me that it makes any difference to this analysis whether or not the Tribunal can take into account the up-to-date position, as the parties seemed to agree, or if it is limited to the circumstances pertaining at the date of the application. The only matter arising after the application which appears to be me to be potentially significant is the evidence from the Applicant and his son concerning the proposed works to Mr Stand’s house. Although this slightly supports the Applicant’s case, I consider that he has demonstrated that, even if all matters post-dating the application are ignored, it would be unjust not to make the alteration. Even if there was no evidence that he might have to move out of his son’s house, the property would still have been his home for many years and the evidence in his statutory declaration was that he intended to return there.[143]I turn then to consider whether there are exceptional circumstances which justify not making the alteration sought by the Applicant. It is my view that any exceptional circumstances that exist in this case do not justify refusing to rectify the register, for much the same reasons as I have already given in relation to the question of whether it would be unjust not to make the alteration.[144]I recognise, of course, that these are different questions with different legal tests to be applied and I have the guidance contained in Paton v Todd very much in mind. The circumstances here include that a fraudster was able to obtain title to a property dishonestly by relying on a will (which was itself not genuine) purportedly made by a man who had died many years before and who seems to have had no connection whatsoever with the property. In my view, it can fairly be said that those circumstances are exceptional. Inheritance frauds are not unprecedented or, sadly, necessarily even very rare, but they are, I think, out of the ordinary course of events. Of course, the fraud then extended to selling the property to the Second Respondent. Again, this can probably be considered to be exceptional. The consequences for the Second Respondent may be very serious. The consequences for Mr Akinwale, may be even worse as there is the possibility, at the very least, that he may lose his home. Insofar as the circumstances are exceptional, in the exercise of my evaluative judgment, I consider that they point towards making the alteration rather than in allowing the original underlying fraud to go unaddressed.[145]Again, I reach the same view irrespective of whether the question of exceptional circumstances is to be judged as at the date of the application or as at the current date.[146]I shall therefore direct the Chief Land Registrar to give effect to the Applicant’s application. In those circumstances, it is my view that it would be entirely artificial to give a direction to give effect to the Respondents’ applications first, and then to give a direction in the same order that immediately reversed that process. Although the Respondents submitted that this may assist with any claim for an indemnity, I am not persuaded that this is correct and it would be perverse for this Tribunal to direct the Chief Land Registrar to do one thing and then to immediately undo what had just been done.[147]As a final point, the First Respondent asked the Tribunal to make findings in support of any claim that they may make against HM Land Registry for an indemnity. They point that I recently did this in the Ebanks case in favour of the First Respondent. I did query the utility of that exercise in that case, but was persuaded to do so because the point had been raised well in advance of the final hearing and had been addressed during the evidence and submissions. Here, the point was only raised in closing submissions and so had not been in the focus before that. It is only fair to note that the First Respondent’s Statement of Case did state at para.22 that if the “Register is altered to correct the alleged mistake, the First Respondent will seek an indemnity from Land Registry in respect of any loss it will suffer as a result”, but that appears to be no more than an informative statement of the First Respondent’s intent, rather than a pleading that puts something in issue for the Tribunal to determine. I am also not sure that the evidence that I have received allows me to make the findings that the First Respondent seeks, bearing in mind the limited evidence that its witness was able to provide.[148]It is, in any event, not necessary to make any finding on this point in order to dispose of the referred matters and so the Tribunal should be wary not to stray too far outside of the bounds of the matters referred under Land Registration Act 2002, s.73(7).

CONCLUSION

[149]For the reasons given above, the Chief Land Registrar will be directed to give effect to the Applicant’s application and to cancel the Respondents’ applications.[150]The Tribunal’s normal practice is to give a provisional view as to which party has been successful and should be entitled to their costs, recognising that this is no more than a preliminary indication and the Tribunal will consider any submissions that there should be some different consequence. Both the First and Second Respondents asked the Tribunal not to give any such indication in this case. The order that accompanies this decision will allow any party seeking costs to make a written application in accordance with rule 13(4)(a) and (5)(a). Given the likely level of costs, no schedule of costs needs to be included with any such application, although if any party seeks an order for an on-account payment, under rule 13(9), their application must include some indication of the approximate level of total costs being claimed. Dated this 11th November 2025