The Upper Tribunal (Lands Chamber) has set aside a First-tier Tribunal order striking out a section 108(2) Land Registration Act 2002 application, ruling that the transfer's link to an earlier Tomlin order was no basis for strike-out.
Key facts
- Who: Parties to applications under section 108(2) of the Land Registration Act 2002 where the transfer followed a Tomlin order.
- From: Judgment of 22 June 2026
- Source: Pia Spragg v Malcolm Thompson Pearson [2026] UKUT 231 (LC)
In Pia Spragg v Malcolm Thompson Pearson [2026] UKUT 231 (LC), decided on 22 June 2026, His Honour Judge Neil Cadwallader allowed an appeal against a First-tier Tribunal (FTT) order of 26 January 2026 striking out an application under section 108(2) of the Land Registration Act 2002.
Background
On 22 January 2019, at a trial in the County Court at Leeds, Mrs Spragg and Redeeris Hendric Dirk Oudijk (the defendants) entered into a Tomlin order with Malcolm Thompson Pearson (the claimant). Both sides had counsel. The schedule to the order contained a signed agreement, including that Mr Oudijk and Mrs Spragg would clean and maintain a particular ditch.
On 4 February 2020 they entered into a transfer in Form TP1 with Mr Pearson. Clause 12.6 contained covenants about the ditch, including a covenant not to make a disposal without first procuring that the disponee had executed a deed of covenant. The transfer also applied for a restriction requiring certification that clause 12.6 had been complied with. Mrs Spragg may have experienced difficulty obtaining the certificate she needed to remortgage.
The question
Section 108(2) allows the FTT, on application, to make any order the High Court could make for the rectification or setting aside of certain documents, including those effecting a qualifying disposition of a registered estate. The question was whether the FTT could strike out the application on the basis that the transfer merely gave effect to the Tomlin order.
The decision
The FTT struck out the application without a hearing. It said the transfer reflected the Tomlin order, that any challenge was "inextricably linked" to the settlement, and that it could not go behind the order. In refusing permission to appeal, it added that Mr Oudijk would have to be a necessary party and had not applied to be one.
The Upper Tribunal allowed the appeal and set the FTT's order aside.
The reasoning
- Neither the Tomlin order nor its schedule contained any provision for a restriction.
- The ditch obligation in the order was narrower than the corresponding covenant in the transfer.
- The order contained no agreement not to make a disposal without a deed of covenant.
- Mrs Spragg did not seek to set aside or vary the Tomlin order, only the transfer to the extent it went beyond that agreement, so the conclusion that the FTT could not "go behind" the order rested on a false premise.
- The FTT had not considered whether its section 108(2) jurisdiction might extend to a contract embodied in a Tomlin order, as a contract to make a qualifying disposition of a registered estate.
- Mr Oudijk's absence did not justify strike-out. His witness statement indicated that he did, in substance, challenge the transfer, and he could have been joined as a co-applicant with his consent, or as a respondent.
What this means for people involved in land registration disputes
- In this case, the Upper Tribunal held that the FTT was wrong to strike out the application on the basis that the transfer reflected the Tomlin order, and wrong to treat the absence of the other transferor as fatal.
- The FTT's order was set aside.
- Any party has a right of appeal to the Court of Appeal on a point of law, with permission. An application must be received by the Tribunal within one month after the decision is sent to the parties. If a costs application is made within 14 days of the decision being sent, the one month runs from the date the Tribunal's costs decision is sent.
- Anyone facing a deadline should get advice before it passes.
Sources
- Pia Spragg v Malcolm Thompson Pearson [2026] UKUT 231 (LC), Upper Tribunal (Lands Chamber), 22 June 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/231