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«The New Land Registration Tribunal: Neither Fish nor Fowl? Kate Harrington Charles Auld * Adjudicator to HM Land Registry; Dispute resolution; Land ...»

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The New Land Registration Tribunal:

Neither Fish nor Fowl?

Kate Harrington

Charles Auld *

Adjudicator to HM Land Registry; Dispute resolution; Land registration;

Property Chamber; Tribunals

Introduction

“Cursed is the man who moves his neighbour’s boundary stone” wrote the author

of Deuteronomy,1 acknowledging both the deep-felt human desire to own land and

the (sometimes appalling) consequences of being drawn into a dispute over it.

Nowhere is that deep-felt desire more obvious than in England and Wales, where every year parties litigate at ruinous expense over pieces of land that objectively have little or no value. Nor is the desire to own small pieces of land a new phenomenon: the Land Registry Act 1862 required exact boundaries to be shown and a person seeking to register their land had to serve notices on adjoining owners.

This resulted in so many disputes over small pieces of boundary land that the Land Transfer Act 1875 introduced the general boundaries rule.2 Nonetheless, since the citizens of England and Wales evidently feel so strongly about ownership of land, the judicial system would be failing if it did not provide an appropriate forum for such disputes properly to be aired.

The motivation to have an efficient land dispute resolution mechanism is clearly palpable and must be viewed as a necessary part of the justice system. This paper evaluates the fairness and efficiency of land dispute resolution in light of recent changes to the framework and forum in which this branch of the law operates, notably the advent of the new Land Registration Division of the First-tier Tribunal, Property Chamber (“the Tribunal”); it examines the opportunities for resolving difficulties that were missed or not taken up; and it proposes significant reforms both to the powers and approach of the Tribunal.

The recent appointment of Professor Elizabeth Cooke as the Salaried Principal Judge of the First-tier Tribunal, Property Chamber (Land Registration) should bring a new approach to the administration of justice in this area. As it presently stands, the new Tribunal noticeably bears the stamp of the Chancery Division of the High Court. By contrast, Tribunal Judge Cooke’s experience lies outside the Chancery Division: originally as a solicitor, then as an academic and Law * Dr Kate Harrington is a Lecturer in Law, University of Exeter. Charles Auld is a barrister practising from St John’s Chambers in Bristol.

Deuteronomy xxvii, 17.

See Lord Hoffmann’s commentary in Alan Wibberley Building Ltd v Insley [1999] 1 W.L.R. 894; [1999] 2 All E.R. 897 HL at 896.

(2016) 80 Conv., Issue 1 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 19 20 The Conveyancer & Property Lawyer Commissioner. Her appointment therefore brings with it the potential to create a more tempered perspective on the resolution of land registration disputes. However, the magnitude of the task that confronts her should not be underestimated and, as this paper contends, there are key challenges still facing the judicial system in this respect arising from changes in nomenclature, accidents in legislative drafting, procedural anomalies, a confrontational approach and inherent jurisdictional contradictions.

First, the Tribunal has only recently taken over the functions of the office of Adjudicator to HM Land Registry, an office created essentially to determine whether a land registrar at HM Land Registry should make or remove entries in the Land Register. The jurisdiction was not created as a species of specialist property tribunal nor was it granted the powers necessary for such a tribunal to perform as efficiently as would be desirable. In particular, those who are successful before the Tribunal still have to issue court proceedings if they need to enforce a Tribunal decision. Contrary to some suggestions,3 the vast increase in cases determined originally by the Adjudicator, and now by the Tribunal, cannot be seen as an indication of its popularity and success. As we argue below, this increase is much more likely to have been caused by the unfortunate statutory provisions that oblige all disputes, unless “groundless”, to be referred to the Tribunal.

Equally, the purpose of the Tribunal is opaque. It is not clear whether it is supposed to be the primary vehicle for the resolution of disputes related to registered land or whether its primary focus is to seek to ensure that registrations at the Land Registry are correct. If it is meant to be a land court, then the legislation needs to be revisited. The current framework, like the 1862 Act, tends to create disputes and to oblige people to litigate through the Tribunal when they might otherwise choose not to do so. Further, the current statutory framework has recreated a dichotomy that was removed by the Judicature Acts of the 1870s. A person in whose favour the Tribunal decides may have to commence separate court proceedings to enforce that decision. If, on the other hand, the Tribunal’s primary focus is to ensure that the public can be assured that the register is accurate, the adversarial nature of the Tribunal is unfortunate. It would seem much more appropriate to adopt an inquisitorial approach whereby the tribunal judge, a specialist conveyancer, takes steps to establish as best as possible the true position.





If it were indeed to move to a more inquisitorial approach, then its power (enjoyed by no other division of the Property Chamber) to award inter-parties’ costs should be abandoned. Of course, if (contrary to our contentions in this article) its primary purpose is indeed to provide a specialist forum before which parties conduct property litigation, its powers need to be widened so that it can enforce the decisions that it makes without the parties having to have subsequent recourse to the courts.

Changes in nomenclature and procedure It is important to assess the historical position of land registration dispute resolution, as current problems stem from changes in nomenclature and procedure over time.

Before the passing of the Land Registration Act 2002 (“the 2002 Act”), any E.g. Tim Morshead QC, “Adjudications: Jurisdiction, Procedure, Appeals and Reform”, Chancery Bar Association Seminar: Land Registration (9 May 2011), para.45. S. Brilliant and M. Michell, A Practical Guide to Land Registration Proceedings (London: LexisNexis, 2015), para.1.10 is to the same effect.

(2016) 80 Conv., Issue 1 © 2016 Thomson Reuters (Professional) UK Limited and Contributors The New Land Registration Tribunal: Neither Fish nor Fowl? 21 question, doubt, dispute, difficulty or complaint regarding the registration of a title was referred to the Solicitor to HM Land Registry (“the Solicitor”) or to one of his deputies. In practice these were legally qualified land registrars almost always with a considerable knowledge of practical conveyancing. The Solicitor had the power to require that one of the parties to the dispute should commence proceedings in the Chancery Division and determined the remaining disputes himself, in informal hearings held at the then headquarters of the Land Registry or, occasionally, in provincial courts hired by the Land Registry for the purpose. The number of disputes dealt with by the Solicitor was usually less than 100 per year, and many of those would be compromised before an actual hearing was necessary.

When the 2002 Act was being considered, the Law Commission recommended that the function of the Solicitor should be transferred to an independent adjudicator to dispel perceptions regarding independence. As a result, Pt 11 of the 2002 Act (ss.107 to 114) provided for the appointment of the Adjudicator. The opportunity was also taken to accord the Adjudicator the power to order the rectification of documents that effect a qualifying disposition of registered land, a weakness in the previous regime.

After the creation of the office of the Adjudicator the number of disputes rose exponentially, to well in excess of 1,000 per year. In order to cope with this increase, the Adjudicator appointed over 30 deputies, most part-time, resulting in more deputy adjudicators than there were full-time judges in the Chancery Division.

Following the reorganisation of tribunals consequent upon the Tribunals, Courts and Enforcement Act 2007, the First-tier Tribunal was created, sub-divided into seven chambers including a “Property Chamber”. The Property Chamber is itself sub-divided into three divisions, including the Land Registration Division. By art.4 of the Transfer of Tribunal Functions Order 20134 the functions of the Adjudicator were transferred to the First-tier Tribunal and the office of Adjudicator was abolished. The erstwhile Adjudicator became the “principal judge of land registration” and upon his retirement, Tribunal Judge Cooke took on the mantle.

Procedure before the Adjudicator was governed by free-standing rules set out in the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 20035 (as subsequently amended in 2008).6 In the Tribunal there is a single set of rules covering all divisions of the Property Chamber, the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 20137 (“the Tribunal Rules”). This is not the place to set out a full critique of the new rules,8 but they are similar to the Civil Procedure Rules 1998, which are primarily designed for adversarial litigation. One point, however, is to be noticed: r.13(1)(c) specifically provides that the Tribunal may make orders for one party to pay the costs of another in a land registration case, whereas in all other cases the power of a tribunal to award costs is restricted to where a person has acted unreasonably or where wasted costs have been incurred.

Transfer of Tribunal Functions Order 2013 (SI 2013/1036).

Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003/2171).

Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) (Amendment) Rules 2008 (SI 2008/1731).

Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169)—minor amendments made by the Tribunal Procedure (Amendment No. 3) Rules 2014 (SI 2014/2128).

They contain oddities; for example, by r.12(1) only the respondent may apply for security for costs, but r.28(3)(c) says that it is for the Tribunal to decide which of the parties is to be the applicant and which is to be the respondent.

(2016) 80 Conv., Issue 1 © 2016 Thomson Reuters (Professional) UK Limited and Contributors 22 The Conveyancer & Property Lawyer Difficulties with the present position Part 11 of the 2002 Act, drafted primarily to make the functions hitherto carried out by the Solicitor independent of the Land Registry,9 has had the unexpected consequence that the caseload has increased so much that it has been necessary to create an entire division of the First-tier Tribunal. If it could be shown that this substantial increase was as a result of disputes (which would otherwise have been litigated in other forums) now being heard in the Tribunal; or that these disputes were being dealt with more speedily or more cheaply, there might be less cause for alarm. However, the evidence for any of the above is not readily forthcoming and the growing inference is that the unforeseen effect of s.73 of the 2002 Act, like the Land Registry Act 1862, has been to create extra disputes. The impact of the Tribunal Rules, coupled with the way that they are being applied in practice, means that the determination of those disputes is seldom cheaper or particularly quicker than going to court.10 The statutory framework The 2002 Act provides that most dealings in land are now required to be registered at the Land Registry, and s.6 places upon the responsible estate owner a duty to apply to the Chief Land Registrar for registration. Section 73 of the 2002 Act, headed “Objections”, provides that, subject to certain provisions, “anyone may object to an application to the registrar” and that the application cannot be determined until the objection has been disposed of, unless the registrar is satisfied that the objection is groundless.11 Section 73(7) provides that “[i]f it is not possible to dispose by agreement of an objection … the registrar must refer the matter to the First-tier Tribunal”. “Groundless” is an extremely low threshold.12 For many years now the courts have employed the “real prospect of success” test13; and that would appear to be a more appropriate standard by which objections should be initially assessed. Allowing objectors to advance objections which whilst not “groundless” nevertheless have “no real prospect of success” inevitably means that costs will be unnecessarily incurred both by objectors (because nobody is telling them that they are wasting their time) and by applicants (because they are having to address points that cannot succeed).

Such a low initial threshold could be justified if objections were limited to those who sought to advance some interest adverse to the applicant seeking registration.

This could be on the basis that although the objection as currently formed seemed to be weak, as the objector was seeking to advance some contrary interest of his or her own, it was not appropriate to rule that objection out at an early stage.

However, in Mann v Dingley the Chancery Division determined that s.73(1) meant that there was no requirement for an objector to have any private law standing14;

See Harpum C & Bignell J, Registered Land: Law and Practice Under the Land Registration Act 2002, 1st edn (London: Jordans, 2004), Ch.34.

For example, in Purslow v Lindsay Ref/2011/0365 (permission to appeal refused by Henderson J on 14 March

2013) the dispute concerned an alleged right of way over a piece of land whose value was almost certainly less than £1,000, but the adverse costs order exceeded £40,000.

LRA 2002 s.73(6).

K. Harrington, “Adjudication in a new landscape” (2013) 24 K.L.J. 316, 334.

See CPR 13.3, 24.

2 and 52.3.

Mann v Dingley [2011] EWLandRA 2010/0582 at [85].

(2016) 80 Conv., Issue 1 © 2016 Thomson Reuters (Professional) UK Limited and Contributors The New Land Registration Tribunal: Neither Fish nor Fowl? 23 and in Walker v Burton15 the Court of Appeal (at [31]) did not take the opportunity to dissent from this conclusion.

Therefore the current situation is that when O buys unregistered Blackacre, he is statutorily obliged to apply to the Land Registry to register himself as proprietor.



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