A judge by any other name would smell… much the same

Did you know that a judge of the First-tier Tribunal (Property Chamber) may be able to hear a county court case and vice versa? Under a scheme being piloted at present, such a thing is indeed possible.

As readers of our property newsletter will know, there are a number of areas of property law where jurisdiction is split between the courts and either the First-tier Tribunal (Property Chamber) [“FTT(PC)”] or the Upper Tribunal (Lands Chamber) [“UT(LC)”].  Examples include:

• Forfeiture of residential leases for breach of covenant where a landlord must apply to the FTT(PC) for a determination of breach before serving a s.146 notice and then applying to the county court for a possession order so as to forfeit the lease.
• Enfranchisement where, broadly speaking, the County Court determines entitlement to enfranchise and the FTT(PC) determines the terms of acquisition.
• Service charges where the Court and the FTT(PC) can decide whether service charges are payable but only the FTT(PC) can determine whether to dispense with consultation in cases where non-compliance with the consultation requirements affects payability.
• Claims of breaches of covenant by residential landlords which can be considered by the FTT(PC) insofar as the breaches are relied on as a defence of set-off to landlord’s claims but not otherwise, and in respect of which the FTT(PC) cannot order works to be carried out.
• Boundary disputes where the FTT(PC) can determine boundaries but cannot make declarations or award damages.
• Beneficial interest disputes where the FTT(PC) can determine whether a party has an interest under a trust in the course of deciding a contested application for a restriction but cannot make declarations concerning the extent of the beneficial interest nor make an order for sale.
• Applications to rectify documents leading to registration where the FTT(PC) has jurisdiction to rectify a charge but not to rectify a discharge of a charge.
• Easements where the FTT(PC) can determine whether an easement over registered land exists but not make injunctions or award damages in relation to interferences with the same easement.
• Freehold covenants where the UT(LC) has the power to discharge or modify restrictive covenants but all other issues must be determined by the Court.

In July 2015 the Civil Justice Council set up a working party to consider proposals for change in the deployment of judicial resource between the County Court and the FTT (PC) in landlord and tenant, property and housing disputes. The possibility arises because of changes introduced by the Crime and Courts Act 2013.  As a result of amendments made by the 2013 Act to the County Courts Act 1984 and the Tribunal Courts and Enforcement Act 2007, all FTT judges are judges of the County Court and all County Court judges are judges of the FTT. 

In May 2016 the working party produced an interim report (which can be downloaded at https://www.judiciary.gov.uk/wp-content/uploads/2011/03/final-interim-report-cjc-wg-property-disputes-in-the-courts-and-tribunals.pdf). The working party considered the desirability of establishing a new “housing court or tribunal” but recognised that, whether desirable or not, there was no realistic prospect of such a reform occurring in the foreseeable future.  Instead the working party recommends that for specified classes of property disputes there should be “flexible deployment” of judges between the FTT(PC) and the county court to ensure that those disputes are resolved in one forum.  Primarily, this would involve one judge wearing two hats in order to decide the whole of a dispute – a county court hat and a FTT(PC) hat.

A pilot project is already under way albeit that only a handful of cases have been tried under it.  The example given in the report is of a park home case.  In cases under the Mobile Homes Act 1983 and the Caravan Sites and Control of Development Act 1961, the FTT(PC) has jurisdiction over charges, site rules and the parties’ obligations and the court tries termination proceedings.  In the case in question the occupier applied to the Tribunal for a determination that her quiet enjoyment was being disturbed.  A few days later the owner applied to the court to determine the occupation agreement and for an injunction to remove the occupier from the site.  By arrangement with a District Judge at the County Court centre where the latter proceedings had been issued, the FTT (PC) dealt with the County Court proceedings as well as the occupier’s application.

There are at least two cases proceeding in the Land Registration division of the FTT(PC) where flexible deployment has been used as part of the pilot.  In one, a boundary dispute where there has been an application to the Land Registry for a determined boundary and also court proceedings for an injunction, the FTT(PC) is to hear both matters together.  In another, there is a reference to the FTT(PC) from the Land Registry which is connected with mortgage possession proceedings in the County Court.  The County Court is to deal with the reference from the Land Registry instead of the FTT(PC), while dealing with the possession proceedings.

There are many practical issues that will require to be worked out if the pilot scheme is to take-off (pun intended).  A further report from the working party on some of them is planned for September 2016.  But in the meantime, if you have a case which would otherwise require separate proceedings in the FTT(PC) and the county court, you may wish to enquire with the FTT (PC) about including it in the pilot.