Land Registration: Rectification of land register following an error on revised demise plan (Kenny-Frow v Ryan – 2021)

The Upper Tribunal considers a freeholder’s application to set aside a strike-out order by the First-tier Tribunal in respect of the freeholder’s application to alter the register, whereby the FTT viewed the application as having no realistic prospect of success.

The background

In Kenny-Frow v Ryan [2021], the appellant was the registered proprietor of a building divided into flats. The first floor was let to the respondent leaseholder under a lease, which defined the demised premises as being property shown edged red on the plan, and which showed that the patio and outside store were not part of the demise. The Land Registry refused to accept this plan on the leaseholder’s application for registration.

The freeholder acquired its interest subject to the respondent’s leasehold interest. The respondent’s solicitor supplied a revised plan to the appellant’s solicitor. The appellant signed the revised plan showing the patio and outside store as part of the leaseholder’s demise. After a period of around 17 years, an investigation into the conveyancing file was undertaken which determined that the appellant’s solicitor had not been asked to consider whether the plan was correct and a true reflection, merely that the appellant had asked for confirmation that the plan was acceptable to the Land Registry.

The appellant applied to the Land Registry to make an alteration to the register on the basis that the registered plan was wrong; the plan should have been the original plan, showing the patio and outside store as not forming part of the leaseholder’s demise. The appellant had not realised that the revised plan differed, but the leaseholder objected to the alteration.

The FTT struck out the appellant’s application, finding that it had no reasonable prospect of success and that the appellant had not complied or cooperated with the FTT’s order. The appellant had, according to the FTT, sent many unnecessary emails and documents and had not observed the FTT’s requirement to make an application for rectification under s.108 of the Land Registration Act 2002. The appellant appealed to the Upper Tribunal.

The decision

The Upper Tribunal set aside the order to strike out the application, finding in favour of the appellant as a result of a misunderstanding by the FTT of the cases of both parties, and a failure to consider relevant matters.

In considering whether the FTT had erred in striking out the application on the basis of no realistic prospect of success, the UT heard that the appellant had been happy to sign the revised plan in 2013 and had not been misled. Further, the UT could find no grounds as to why the leaseholder may challenge any application to alter the register; the parties had agreed that the plans were different and the FTT had misunderstood the arguments of the appellant and respondent.  A signature on a revised plan did not vary the lease.

The FTT’s decision that the application had no realistic prospect of success was based on a mistaken view of the facts of the case, and the UT could not uphold this.

The UT also considered whether the FTT had erred in its decision to strike out the application as a result of the appellant’s failure to comply with its directions. The UT found that the FTT had not had regard to key factors:

1. The appellant had acted in a manner which was understandable given the FTT had failed to hear her argument;
2. The FTT had decided to strike out the appellant’s case on grounds of failure to follow procedure, but this decision appeared to rest on perceived weaknesses in the appellant’s case; and
3. The FTT did not consider that the leaseholder’s legal representation had also been questionable, with inconsistencies and inaccuracies, and a failure to correct matters.

The appellant had also filed evidence by way of the s.108 application for rectification, and supported this with a statement of truth.

Advice and action for landlords

This decision is a useful guide for cases where applications are deemed to have no realistic prospect of success. Where a decision that an argument has no realistic prospect of success is made based on a misunderstood, or mistaken, view of the cases of the parties, and of the facts, this decision cannot stand.