Young Cammiade [2023] UKUT 96 (LC), 2023 WL 03023622
The case raised the interesting question whether section 84(1) of the Law of Property Act 1925 confer power on the Upper Tribunal to discharge a restriction arising under a covenant prohibiting the registration of a transfer of a registered lease without the consent of the covenantee? The short answer is "no".
The facts
The Applicant, Ms Cammiade was the lessee of No. 1 Acacia Grove, one of four flats in a two-storey block. She had owned the flat since 2013 under a lease for a term of 999 years granted on 23 March 1960.
In 1983 the respective owners of Nos. 1 and 3 entered into a Deed of Covenant which had subsequently been lost. The 1983 Deed was discharged by a Deed of Release and Substitution made between the same parties and the intending purchaser of No.1 on 27 September 1988. By that Deed the purchaser of No. 1 and the then owner of No.3 covenanted to observe and perform the covenants in the 1983 Deed. The covenants were however not recited in the 1988 Deed so its effect remained unknown.
Presumably to ensure the continuation of the mutual covenants on subsequent disposals, the parties to the 1988 Deed each applied to the Registrar, in terms agreed between them and recorded in the Deed, for the entry of a restriction on their respective registers of title. The restriction entered on the title of No. 1 was in these terms:
"Except under an Order of the Registrar no transfer or lease is to be registered without the consent of the Lower Lessee or other the registered proprietor for the time being of title number SY245193."
The original title number of No. 3 Acacia Grove had since been closed and replaced by a new title number and no restriction requiring the consent of the owner of No. 1 appeared on that title. The restriction remained against No1's title. When No 3's owners failed to respond to requests by No 1 to the removal of the restriction, Ms Cammiade applied to remove it under s 84.
The outcome
The Tribunal noted that section 84(12) extends the Tribunal's power to leasehold covenants where the land is subject to a term of forty years or more, of which more than twenty-five years have expired. The jurisdiction to discharge, however, only extends to restrictions "as to the user" of land. The Tribunal rejected the Applicant's argument that the restriction which prevented the Applicant from registering a transfer or a lease without the consent of the owner of No. 3 was a restriction "as to the user" of land. The Tribunal held that it was only concerned with the completion of a disposition by registration in the register of title. It did not impinge, directly or indirectly, on what the flat may lawfully be used for. It followed that the Tribunal had no jurisdiction to discharge the restriction. The application was dismissed.
Lesson learnt
The Upper Tribunal does not have inherent jurisdiction. Ensuring that the scope of the application falls within its jurisdiction, even if the application is unopposed, is therefore essential. As noted by the judge in this case, the Applicant was not without recourse. She could (and probably should) have applied for a declaration that consent had been unreasonably refused by No 3.
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