What is the matter with the Land Registry?

The decision strongly emphasises the cardinal significance of the terms in which Notices of Objection are given to the determination of the scope of the tribunal’s jurisdiction.

Section 73(7) Land Registration Act

Section 73(7) Land Registration Act 2002 says that if an objection to an application is not resolved by agreement, HM Land Registry must refer the matter to the FTT. Thus, it is the nature of the matter which defines the scope of the FTT’s jurisdiction.

In Silkstone v Tatnell [2011] EWCA Civ 801, the Court of Appeal held that:

“… a reference to [the FTT] of a matter under section 73(7) of the Land Registration Act 2002 confer[s] jurisdiction upon [the FTT] to decide whether the application to which objection had been made should succeed, a jurisdiction which include[s] the determination of the underlying merits of the claim which had provoked the making of the application.”

However, in Razoq Martin Rodger QC held that, because the issues which the applicants wished to raise in the proceedings before the FTT did not form part of the Land Registry’s Case Summary and had not formed part of their original objections to the application (even though they did apparently relate to the relief sought by the application), they did not form part of the matter referred and so did not fall within the jurisdiction of the FTT.

Razoq is a decision made on an application for permission to appeal and on the papers. It will not therefore be authoritative. Nevertheless, it may mark a shift of approach on the part of the Upper Tribunal away from the relatively broad scope of the jurisdiction indicated by the decision in Silkstone. As such it may prove a trap for the unwary and a useful decision for those seeking to keep the issues before the tribunal on a short leash.