Can a Property Transfer Be Challenged if it Adds New Terms Not in a Court Order?

Neutral Citation Number: [2026] UKUT 231 (LC) Case No: LC-2026-132 Royal Courts of Justice, Strand, London, WC2A 2LL IN THE UPPER TRIBUNAL (LANDS CHAMBER) AN APPEAL AGAINST A DECISION OF THE FIRST-TIER PROPERTY CHAMBER Ref: C80LS517 22 June 2026 TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 LAND REGISTRATION - Rectification or setting aside of documents - Practice and procedure – strike out BETWEEN: [APPELLANT] Appellant -and- [RESPONDENT] Respondent [REDACTED] His Honour Judge Neil Cadwallader 16 June 2026 © CROWN COPYRIGHT 2026 Introduction 1. This is an appeal against the order of the First-tier Tribunal (“the FTT”) dated 26 January 2026 striking out the appellant’s application under s. 108(2) Land Registration Act 2002 dated 11 November 2025.

2. The central issue on this appeal is whether the FTT was entitled to strike out an application under s.108(2) Land Registration Act 2002 on the basis that the impugned transfer merely gave effect to a prior Tomlin order. The facts 3. On 22 January 2019 at a trial in proceedings in the County Court at Leeds the [APPELLANT] and [NAME] (the defendants) entered into a Tomlin order with [RESPONDENT] (the claimant). Both sides were represented by Counsel. The Schedule to the Tomlin order contained an agreement between the parties which they signed. Among its terms was an agreement at paragraph 9 that [NAME] and [APPELLANT] should clean and maintain a particular ditch.

4. On 4 February 2020 [NAME] and [APPELLANT] entered into a transfer in Form TP1 with [RESPONDENT]. At Clause 12.6 the Transfer contained covenants by [NAME] and [APPELLANT] in relation to the ditch, including a covenant not to make a disposal without first procuring that the disponee had executed a deed of covenant.

5. The transfer also contained an application by [NAME] and [APPELLANT] for the entry of a restriction requiring certification by the proprietor of [RESPONDENT]’s title (or their conveyancer) that Clause 12.6 of the transfer had been complied with.

6. It appears that [APPELLANT] may have experienced difficulty in obtaining from [RESPONDENT] the requisite certificate to allow her to effect a remortgage. The application 7. Section 108(2) Land Registration Act 2002 provides that the FTT may, on application, make any order which the High Court could make for the rectification or setting aside of a document which effects a qualifying disposition of a registered estate or charge, is a contract to make such a disposition, or effects a transfer of an interest which is the subject of a notice in the register. For these purposes, it provides that a qualifying disposition is a registrable disposition, or a disposition which creates an interest which may be the subject of a notice in the register. Section 108(4) provides that the general law about the effect of an order of the High Court for the rectification or setting aside of a document applies to an order under that section.

8. The appellant’s application to the FTT under s. 108(2) Land Registration Act 2002 dated 11 November 2025 was expressed to be to cancel/set aside the transfer dated 4 February 2020 (and all that it contained, including the restriction), on the grounds that “it was procured by duress/mistake/lack of informed consent/misrepresentation/bad faith/concealment/unjust” and sought such further or alternative relief as the FTT might consider just and equitable. The evidence in support (of which this Tribunal has had sight by the courtesy of the FTT) complained that by mistake the transfer introduced new and onerous conditions for which the Tomlin order had not provided, including the application for the restriction. [APPELLANT] did not seek to set aside the Tomlin Order although she complained of the circumstances in which it was made. Reference was also made to Sch.4 of the 2002 Act . The decision of the FTT 9. The FTT apparently expressed concerns about the application in a letter dated 17 December 2025 to which a response dated 13 January 2026 was received. This Tribunal has not seen those documents, but their content can be inferred from the order of the FTT made without a hearing and dated 26 January 2026 by which the FTT struck out the application. The reasons which it gave for doing so were as follows: “1. Nothing in the Applicant’s submissions counters the reasoning in the Tribunal’s notice of 17th December 2025.

2. It is quite plain that the TP1 transfer which the Applicant seeks to set aside (dated 4 th February 2020) was executed as part of her (and [NAME]’s) obligations pursuant to a detailed Tomlin Order entered into in proceedings in the county court at Leeds C80LS5177 and which was made nearly a year earlier on 22 nd January 2019. The [APPELLANT] and [NAME] as transferors had the benefit of counsel for those proceedings.

3. The drafting of the TP1 reflects the terms agreed in the Tomlin Order.

4. Any challenge to the TP1 is inextricably linked to the settlement of the court proceedings and the Tomlin Order. This Tribunal cannot go behind the Tomlin Order and the TP1 made in consequence.” Discussion 10. The FTT erred in striking out the application on the basis that the TP1 reflected the Tomlin order. Neither the Tomlin order nor the agreement scheduled to it contained any provisions for a restriction. The Tomlin order agreement to clean and maintain the ditch is narrower than the corresponding covenant in the transfer. The Tomlin order contains no agreement not to make a disposal without a deed of covenant.

11. The FTT’s conclusion that it could not ‘go behind’ the Tomlin Order was based on a false premise. The appellant did not seek to set aside or vary the Tomlin Order, but only the transfer, to the extent that it went beyond that agreement. Further, the FTT failed to consider whether its jurisdiction under s.108(2) Land Registration Act 2002 might extend, if necessary, to a contract embodied in a Tomlin Order as a contract to make a qualifying disposition of a registered estate.

12. The appellant sought permission to appeal. This Tribunal has not seen that application. In refusing permission to appeal its decision, however, the FTT stated that it stood by its reasoning, but added inter alia the following. “3. The TP1 transfer is not challenged by [NAME] who would have to be a necessary party to any application. He is not and has not applied to be. That is also fatal to the current application.

13. The FTT also considered the absence of [NAME] to be fatal. That conclusion was incorrect. [NAME]’s witness statement indicated that he did, in substance, challenge the transfer. In any event, he could have been joined as a co-applicant with his consent; or as a respondent. His absence did not justify striking out the application. Conclusion 14. For those reasons, the appeal is allowed. The order of the FTT dated 26 January 2026 is set aside. His Honour Judge Neil Cadwallader 22 June 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.