Melvyn Roy Bean and Penelope Jane Saxton v Howard Katz and Iris Benjamin Katz
| Jurisdiction | UK Non-devolved |
| Judge | Judge Cooke |
| Neutral Citation | [2016] UKUT 0168 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Land Registration,6 April 2016 |
| Date | 06 April 2016 |
| Published date | 01 December 2016 |
[2016] UKUT 0168 (TCC)
Appeal number: UT/2015/0042
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
MELVYN ROY BEAN and PENELOPE JANE SAXTON
Appellants
- and -
HOWARD KATZ and IRIS BENJAMIN KATZ
Respondents
TRIBUNAL: Judge Elizabeth Cooke
Sitting in public at Royal Courts of Justice, Strand, London, WC2A 2LL on 16 February 2016
1. The Appeal is allowed.
2. In accordance with Section 12 of the Tribunals, Courts and Enforcement Act 2007 I re-make
the decision of the First-tier Tribunal and I direct the Chief Land Registrar to give effect to
the appellants’ application for a determined boundary dated 20 January 2011 as if the
objection to that application had not been made.
© CROWN COPYRIGHT 2016
2
DECISION 5
1. This is an appeal from a decision made on 6 February 2014 in the Land
Registration Division of the First-tier Tribunal on the Appellants’ application
for a determined boundary under section 60 of the Land Registration Act 10 2002. The First-tier Tribunal determined that the boundary was on the line
claimed by the Applicants, save for one small section in respect of which it
was found to be a right angle, rather than as the curve shown on the
Applicants’ plan. I refer to that section, as did the judge in her decision, as
“the Front Section”. This appeal, brought by the Applicants, relates only to the 15 Front Section.
2. Permission to appeal was granted by Judge Edward Cousins in the Upper
Tribunal (Tax and Chancery Chamber) on 11 March 2015 after an oral
hearing. I heard the appeal on 16 February 2016. The application for 20 permission to appeal, the grounds of appeal (as amended on 2 March 2015)
and the skeleton argument for the Appellants were drafted by Mr William
Hansen of counsel. He was taken ill very shortly before the hearing, and the
Appellants instructed their solicitor Mr George Tedstone to represent them at
the appeal, preferring to rely upon his detailed knowledge both of the land and 25 of the legal authorities than to instruct fresh counsel at the last minute. Mr
Tedstone represented his clients very ably and I am most grateful for his
assistance. The Respondents did not attend and were not represented.
3. The Second Respondent applied, by letter dated 10 February 2016 to be 30 removed from these proceedings. At the hearing I refused her request and she
remains a party; I have given a separate written decision, setting out my
reasons for that refusal.
4. The Appellants say that in the light of the findings of fact made at first 35 instance the judge of the First-tier Tribunal erred in fact and law in finding that
the boundary of the Front Section did not follow the line on their plan. They
say that the facts found demonstrated that there had been at some point in the
past a boundary agreement to the effect that the Front Section boundary was
curved. Alternatively they say that the presumption of lawful title after 20 40 years’ open and peaceable possession leads to the same conclusion.
5. Before I explain why, in my judgment, the Appellants are correct I set out the
relevant law. In doing so I have to discuss the First-tier Tribunal’s jurisdiction
in relation to determined boundary applications - an issue that was not raised 45 by the Appellants or the Respondents at first instance or on appeal, although
Mr Hansen’s skeleton argument, and Mr Tedstone at the hearing, referred to it.
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