Land – Registration – Restriction – Appellant applying to register restriction against property – Respondent raising objection – Adjudicator considering question of beneficial interest in property – Whether adjudicator determining issue beyond jurisdiction – Appeal dismissed
The appellant applied for the registration of a restriction against the registered title to a property. She claimed to be the sole beneficiary under a resulting trust of the property in her favour because she had: (i) provided the original funds for its purchase; (ii) paid the instalments under a charge of the property in favour of a building society; (iii) redeemed the charge out of her own money; and (iv) borne all the outgoings of the property as well as having received all the income accruing from its letting. The respondent opposed the application on the grounds that the appellant had no interest in the property and that her version of the history of the matter was unsupported by the evidence.
After a two-day trial, the deputy adjudicator to HM Land Registry, to whom the matter had been referred under section 73(7) of the Land Registration Act 2002, directed that the appellant’s application should be cancelled. The appellant appealed to the High Court. She argued that, inter alia, the adjudicator should not have embarked on a trial of the issue of whether the appellant had a beneficial interest in the property but should merely have ascertained whether she had an arguable claim to that effect and directed that her claim should be tested by a competent court, with the restriction for which she had applied remaining in place in the meantime.
Held: The appeal was dismissed.
The procedural code regulating the discharge by the adjudicator of functions conferred by the 2002 Act, as set out in the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003/2171), expressly incorporated the overriding objective in terms that broadly corresponded with those in the Civil Procedure Rules. The rules contained a procedural code plainly designed to enable the adjudicator to resolve disputes over substantive rights, rather than merely to conduct a summary process designed to ascertain whether an arguable claim existed.
Under section 42(1) of the 2002 Act, the chief land registrar could enter a restriction if he considered that it was necessary or desirable to do so for the purposes of protecting a relevant right or claim. Although that process required him to be satisfied that the applicant was entitled to apply within the meaning of section 43(1), and therefore had a sufficient interest in the making of the entry, that was not the extent of the registrar’s task. A person might have a sufficient interest to qualify him as an applicant for a restriction, in circumstances where the registrar was none the less not persuaded that it was necessary or desirable to make the requested restriction for the purpose of protecting the applicant’s right or claim.
It followed that the question referable to the adjudicator under section 73(7), where an objection that was not obviously groundless could not be disposed of by agreement, was not merely whether the applicant had a relevant right or claim, but the additional question of whether the entry of a restriction was necessary or desirable for the purpose of protecting that right or claim.
It was also apparent from section 73(5) to (7) that where there had been an objection to an application for the restriction, it was necessary to “dispose of” that objection. That disposal was an integral part of the matter referred to the adjudicator under section 73(7). It followed that the precise nature of the adjudicator’s function on any particular reference under section 73(7) would be significantly affected by an examination of the precise restriction sought, the nature of the claim or right thereby sought to be protected and the basis of the objection that had led to the reference.
It was clear from section 110(1) that, on a reference under section 73(7), the adjudicator was given a broad discretion as to whether to decide a matter himself or to require it to be decided in a competent court. It was equally clear from the procedural powers given to the adjudicator under the 2003 Rules that a decision to decide a matter himself might properly involve a trial, rather than merely a summary review directed to the question of whether an asserted claim was reasonably arguable.
Christopher Maynard (instructed by Lakhani & Co) appeared for the appellant; Nicola Muir (instructed by Seth Lovis & Co) appeared for the respondent.
Eileen O’Grady, barrister
