In this article, our property litigation legal director, Anna Phillips, discusses why The First-tier Tribunal or 'FTT', can be a useful alternative arena to the Courts for resolving Land Registration issues. 

The FTT's role in resolving leasehold disputes is well known but its role in resolving matters which cannot be decided by the Land Registrar (such as first registration or applications to correcting errors on the land register) is equally important.  In this article, Anna Phillips highlights the benefits of the FTT's approach as well as the need for early identification of the best arena for each dispute.

Tactical thinking not Sleepwalking

Perhaps because land registration matters often begin with a simple and apparently innocuous application to the Land Registry, it is not always anticipated that disputed proceedings may quickly follow or that, should this occur, the parties can make an active choice of arena.  Such 'sleep walking' into proceedings should be avoided.  Parties should first consider whether the FTT or the Courts is the appropriate arena taking into account:

  • achievable outcomes;
  • speed of resolution;
  • likely work involved; and
  • costs issues.

 

Achievable Outcomes

If a declaration or decision is required, the FTT can be quick and efficient. Conversely, whilst the FTT can make a range of orders, it cannot grant an injunction to prevent a party taking certain action, nor can it award damages.   Where such remedies are required the matter may be better heard by the Courts; for example, where an opposing party claims ownership by long use, the issue of proceedings will stop time running and an injunction to remove an occupying party can be obtained.

Speed

The FTT can be swift and can decide some matters more quickly than the Courts.  However, there are some important exceptions to this:

  • hearings in the regions take longer to list than in London;
  • the Tribunal office is now beginning to see some delays similar to the Courts; and
  • emergency remedies, such as injunctions, will need to be sought through the Courts.


Equally the speed of the FTT's actions and the time within which parties are required to comply can take parties by surprise and make compliance challenging.

The Likely Work Involved

As with any legal proceedings, parties should not underestimate the work required in preparing for a Tribunal hearing.  The Tribunal service was designed to assist those acting for themselves but, in matters of complex property law, professional advice is invariable desirable and a considerable amount of work both by advisors and their clients will be required.  

Proceedings before the FTT follow broadly similar procedures to those before the Courts but differ in the following ways which can affect the choice of arena:

  • The FTT has its own rules which, whilst more streamlined than the Court rules, do not have clear guidance for all scenarios;
  • The FTT requires 'Statements of Case' with all relevant documents attached at the outset which requires careful upfront preparation; 
  • The FTT's  judges often have a property background which can avoid the need for certain expert evidence.

 

Costs

In both the Courts and the FTT some proceedings can be very swift and others complex, drawn out and expensive.  The likely cost of any dispute should be considered carefully at the outset taking into account what is likely to be achieved and appropriateness and proportionality of any fees incurred.

Where proceedings are issued before the Courts, the normal rule (subject to the value of the claim and the application of proportionality) is that the losing party generally pays the winning parties costs.  Not so before the FTT!  Recovering of costs should not be relied upon before the FTT and will only be awarded in limited circumstances and at the discretion of the Judge:

  • where there has been an act or omission by a representative of a party;
  • in certain cases, where a party has acted unreasonably in bringing, defending or conducting proceedings; or
  • in land registration cases (where the normal costs rules apply but the FTT remains cautious in any awards).

Recovery of costs is a double edged sword.  A losing party before the FTT undoubtedly faces less risk of being ordered to pay the other sides' costs.  However, a winning party, even in the face of relatively extreme poor behaviour by an opposing party, has a much smaller chance of recovering its costs than before the courts.   In addition, whilst some parties may be more cautious about incurring costs, the cost regime before the FTT can mean that others are more gung-ho about proceeding to a hearing and less inclined towards appropriate settlement discussions at an early stage.

Final Thoughts

Since its introduction in 2008, the FTT has undoubtedly provided a welcome, expert and effective alternative arena for property disputes.  Parties should consider carefully with their advisors at the outset whether the FTT or the Courts are likely to be the best arena for resolving land registration issues.

For more information contact Anna Phillips -on Anna.phillips@footanstey.com