Assistant Land Registrar Richard Hill explores the implications of a judgment by the Upper Tribunal

Bean vs Katz

What is the jurisdiction of the Land Registration Division of the Property Chamber, First-tier Tribunal, when dealing with referrals by Land Registry under the Land Registration Act 2002 s.73 (7) in respect of disputed determined boundary applications?

This question has been the subject of further consideration by the Upper Tribunal, Tax and Chancery Chamber (the UT).

Melvyn Roy Bean and Penelope Jane Saxton v Howard Katz and Benjamin Katz [2016] UKUT 168 (TCC) was heard by Judge Elizabeth Cooke in February and contains further analysis of the jurisdiction of the First-tier Tribunal (FTT), following the decision in Murdoch v Amesbury [2016] UKUT 3 (TCC).

Murdoch was considered in a previous article and that decision sought to define the limits of the jurisdiction of the FTT when dealing with disputed determined boundary (DB) applications.

The background

The applicants in the FTT (also the appellants in the appeal) submitted an application on form DB to determine a long boundary between neighbouring properties in Shropshire in 2011.

The plan accompanying the application complied with Land Registry technical requirements and was found, before the FTT, to be sufficient to determine the boundary save in respect of a small section at the front. This part showed a curved boundary on the DB plan but the FTT judge, after hearing all the evidence, decided that the front section boundary was not curved, but at a right angle, and differed to that extent to the boundary applied for in this one respect.

The FTT decision referred to a plan showing the area concerned with a red line, and determined the line of the boundary accordingly. The effect of this was to give a small area of the front section to the respondents, and to divide a hedge on the site so that part of it fell inside the extent of each of the neighbouring properties.

On appeal, the appellants said that the relevant boundary was curved as shown on the original plan, because the evidence supported a finding either that a boundary agreement applied in respect of this area of land or that there was a presumption that the boundary lay along the curved line shown on the plan [para 32].

The Upper Tribunal’s decision

The appeal was successful, the UT finding that the boundary was curved as shown on the DB plan, and the judge re-made the decision of the FTT, directing the Chief Land Registrar to complete the original application as if the objection had not been made.

She did this because she found the evidence supported a finding that there had been a boundary agreement in respect of the curved part of the front section of the boundary at some time in the past, and that the FTT judge had therefore erred by not giving effect to that in her judgment.

However, the main interest of this case is the discussion by the UT judge on the issue of jurisdiction of the FTT in such cases.

The issue of jurisdiction of the FTT was not argued at the hearing either at first instance or on appeal. It was merely referred to in the skeleton argument of the appellants, and by the appellants’ solicitor at the hearing who had to step in for counsel at the last minute because of illness. Their simple point was that Murdoch v Amesbury was not relevant to the appeal, and the UT judge agreed with this approach.

The UT judge, however, went further and dealt with jurisdiction in detail in the judgment, even though no argument on the point had been heard; the UT decision in Murdoch embodies a reminder that jurisdiction cannot be conferred by consent.

The judge regarded it as important to be clear, not only that the FTT had had jurisdiction to make the order it did but also that the UT had jurisdiction to re-make the FTT’s decision. In the absence of argument she went no further than was necessary for that purpose.

The Upper Tribunal judge’s analysis on jurisdiction

Murdoch v Amesbury was a fundamentally different case to this one, in the view of the judge of the UT. The judge considered that Murdoch was not binding with regard to jurisdiction of the FTT in disputed DB applications, save in those cases where the tribunal makes its decision to reject an application based upon the accuracy and technical quality of the plan submitted.

The ratio decidendi of Murdoch was narrow, and so its relevance was confined to cases where the DB application failed only because the plan failed to comply with the technical requirements of r. 119 (1) (a) LRR 2003. The general statement by the judge in Murdoch that DB applications are concerned with the accuracy of the identification line, rather than title to the line, was therefore obiter dictum, and not binding authority.

R.119 (1) (b) states that the registrar must be satisfied that the applicant has shown an arguable case that the exact line of the boundary is in the position shown on the plan, and any verbal description, to be able to take the application forward. Therefore, said the UT judge, an objection to a DB application on the basis that r. 119 (1) (b) has not been complied with “obviously involves a question of title”.

The FTT will therefore have jurisdiction to dispose of DB applications where the objection is not to the technical quality of the plan (under Rule 119 (1)(a)), but to what the plan says about the position of the legal boundary. In this second part of the test, it is necessary to look at the title to the properties concerned, and the FTT will have to make findings about the position of the boundary, and the title behind that position in order to give reasons for the decision it makes.

This meant that the outcome of the appeal was simple; the original application was to be completed in full because the title history supported it. However, this case differs from one where, following a full consideration of the title issues at the hearing, the FTT decides that the actual boundary is in a wholly different location to that shown on the DB plan. It remains to be seen, therefore, how the combined effect of Murdoch and Bean v Katz will impact upon these kinds of cases.

You can read the full judgment here.

Richard Hill
By Richard Hill,
Lawyer at HM Land Registry, Guarantee & Litigation Group