Land Registry plans record general boundaries. This means that lines drawn on title plans are not definitive. However, it is possible to apply to have boundaries shown on the register as “determined boundaries”: section 60(3) Land Registration Act 2002 and rules 118 and 119 of the Land Registration Rules 2003. All well and good, but what exactly is the role of the First Tier Tribunal (FTT) if an application is contested?
Murdoch v Amesbury [2016] UKUT 3 (TCC); [2016] PLSCS 14 suggested that the FTT does not have jurisdiction to decide the exact location of a boundary, because the Land Registration Rules make no provision for rival plans or for the FTT to ascertain that a boundary lies in a position different to that shown on the application plan. Consequently, if there is an argument about a boundary line, the parties must use alternative dispute resolution, or take their dispute to court, and then make a determined boundary application based on the parties’ agreement or the findings of the court.
However, Bean v Katz [2016] UKUT 168 (TCC); [2016] PLSCS 205 suggested that the FTT’s jurisdiction is not that narrow, because it will need to consider the evidence, examine the titles and make findings about the position of a boundary in order to deal with an application. The FTT took a similar line in Mehmet v Eurorose Properties Ltd [2016] EWLandRA 2015_0711, preferring Bean v Katz on the ground that it offered “a more coherent reading of the relevant statutory provisions and procedure”.
Lowe v William Davis Limited [2018] UKUT 206 (TCC) completes a hat-trick of decisions confirming that the FTT can determine an underlying boundary dispute. Furthermore, Morgan J ruled that the FTT can do so even if the determined boundary application is dismissed for non-compliance with the Land Registry’s requirements for accurate plans.
The company had applied for the determination of the exact line of the boundary between its own land and land belonging to Mr & Mrs Lowe, who contested the application. The FTT agreed that the boundary was located in the position identified by the company. But it directed the Land Registry to cancel the application because, during the course of the hearing, it emerged that the plan accompanying the application was defective.
Mr & Mrs Lowe appealed against the FTT’s findings as to the location of the boundary. They argued that the discovery that the plan was inaccurate put paid to the FTT’s jurisdiction. Therefore, it should not have decided where the boundary lay.
Morgan J accepted that the FTT does not have an inherent jurisdiction, but ruled that it does have jurisdiction to determine the issue referred to it and that the procedure for the determination of the exact line of a boundary is available where a boundary is disputed. The FTT may take the view that the dispute would be better litigated in the courts, but it is not obliged to do so in every case.
Furthermore, although the right order to make in response to an application will normally be a direction either to give effect to or to cancel it, that does not limit the FTT’s jurisdiction to make findings and decisions. Morgan J was not persuaded by Murdoch. Bean v Katz was altogether more persuasive and the FTT did have jurisdiction to make the decision made in this case.
Allyson Colby is a property law consultant
