CA-2024-002828 - [2025] EWCA Civ 1016

There is little to add to the summary of the factual background I have already given.

The UT was willing to infer, at [18]: (a) that Ms O’Connor’s application for registration of the lease of Flat 17 was made on 15 July 2021, because that was the date to which the registration was back-dated when it was eventually made; and (b) that it was to her application that the note of a pending application on the freehold title at the date of the claim notice referred. No challenge has been made before us to the drawing of either of these inferences. The UT added, at [19], that the reason for the delay in the registration of the lease of Flat 17 is not known, nor is the date on which the registration took place. But it had certainly not taken place by the crucial date, 14 days before the claim notice was given, and no participation notice was given to Ms O’Connor. Accordingly, on that crucial date, “Ms O’Connor held an equitable lease of flat 17 and there was no legal lease in existence”: [21]. The effect of section 27 of the Land Registration Act 2002 (“LRA 2002”) is that the grant of a lease for a term of more than 7 years out of a registered estate is a registrable disposition and it does not take effect at law until the lease is registered: [16] and LRA 2002 section 27(1) and (2)(b)(i).

At [28] the UT recorded that in the course of the appeal, and after the respondent had instructed counsel, “something of a wrinkle appeared” in relation to the facts that were before the FTT. Although Mr Joiner had told the FTT the position as he understood it, and he was personally unaware of the lease of Flat 17, it transpired that one of the directors of the respondent, Ms Hamida Bellenie, was aware of Ms O’Connor’s presence in Flat 17. Ms O’Connor’s mother had apparently rented the flat for many years, so she and her mother were known to Ms Bellenie; and when Ms O’Connor came back to live there after her mother’s death, she contacted Ms Bellenie to ask if there was a residents’ association and mentioned that she now owned the flat. She attended Zoom meetings held to assess support for the bid to acquire the right to manage, and she was supportive of the process but was waiting until after her lease was registered before becoming a member of the respondent.

The information summarised above was provided in a letter from Mr Joiner to Avon’s solicitors dated 28 May 2024, some two weeks before the UT hearing. But no application was made to admit new evidence on the appeal, and there was no witness statement to verify it. The UT was concerned that the information “raises as many questions as it answers”: [29]. For example, did Ms Bellenie share her knowledge with anyone else at the relevant time, and would she have appreciated that Ms O’Connor had an equitable lease because it had not yet been registered? In those circumstances, the Judge concluded at [30] that

“it appears that the factual basis presented to the FTT may have been wrong, but the evidential position is unchanged. I will therefore decide the appeal on the basis of the position as the FTT understood it, namely that the respondent did not know that a lease of flat 17 had been granted but had not yet been registered, because that is what the evidence (or its absence) shows.”

Neither side has submitted to us that the Judge was wrong to proceed in this way, and I am content to do likewise. Indeed, I think the Judge’s decision on the point was inevitable in the absence of any application to admit fresh evidence or of any agreement by the parties to vary the facts found by the FTT.