Priory (High Ackworth) Management Company Limited v David Stephen Beach & Anor

RESTRICTION – REQUIREMENT FOR CERTIFICATE OF APPLICANT- APPLICANT NOT PROVIDING CERTIFICATE – APPLICATION TO DISAPPLY RESTRICTION

1. Plot 2, Priory Cottage forms part of a small development that was constructed in about 2016. It comprises both older buildings and newer buildings. Houses in the development share facilities, such as private driveways, a sewerage system and drainage system. The Applicant, Priory (High Ackworth) Management Company Limited (“the Company”) is a company that was set up to manage the shared facilities. The Respondents Mr and Mrs Beach took a transfer of Priory Cottage from the registered proprietor, Mr Michael Wakefield, by a transfer dated 12 th October 2018.

2. Mr Wakefield had entered into a deed of covenant with the Company on 2 nd February 2016. Mr and Mrs Beach entered into a covenant with the Company on 12 th October 2018. A copy of the deed of covenant of 2 nd February 2016 is not in evidence but it is agreed that it was in the same terms as the deed of covenant of 12 th October 2018.

3. Clause 5 of the deed of covenant reads as follows: 5.1 The Transferee covenants with the Company that he will pay to the Company: (a) the specified fraction of the costs and expenses incurred by the Company in providing, securing and performing the scheduled services; (b) the specified fraction of the contributions to the sinking fund for expenditure in relation to the Private Driveway, the Sewerage System and the Drainage System; (c) the costs of and incidental to, the administration and conduct of the Company’s affairs. 5.2 The Transferee covenants with the Company that he will procure that a restriction in the following form is entered in the proprietorship register of the Property: “No disposition of the registered estate (other than a charge) by the proprietor of the registered estate or by the proprietor of any registered charge is to be registered without a certificate signed by [the Company] that the provisions of clause 5 of the deed of covenant [insert date of covenant] and made between Michael John Wakefield and [the Company] referred to in the charges register have been complied with”.

4. A restriction was entered as clause 3 in the property register of the title to Priory Cottage to the effect that no disposition of the registered estate (other than a charge) was to be registered without a certificate from the Company that the provisions of clause 5 of the deed of covenant of 2 nd February 2016 has been complied with.

5. Mr and Mrs Beach asked the Company to provide a certificate under clause 3 of the restriction so that the transfer of Priory Cottage to them on 12 th October 2018 could be registered. The Company would not do so.

6. The registrar has power under s.41(2) of the Land Registration Act 2002 to disapply a restriction in relation to a disposition specified in the order.

7. On 26 th May 2022 Mr and Mrs Beach applied to HM Land Registry to disapply the restriction so that they could be registered as the registered proprietors of Priory Cottage.

8. The Company, which acts by Mr Valery Sawbridge, objected and the matter was referred to the Tribunal for determination.

9. Mr Sawbridge set out in the Company’s Statement of Case the reasons the Company had given in a letter to Mr Wakefield and Mr and Mrs Beach’s solicitors dated 19 th July 2019 for refusing to provide the certificate. The letter ran to some 335 pages. The reasons are set out in the Statement of Case in shorter terms and are described as “breaches”. They are thirty-eight in number. Most of the breaches refer to ways in which it is alleged the construction of Priory Cottage departed from the detailed terms of the planning permission given for its development.

10. The matters Mr Wakefield covenanted to do by clause 5 of the deed of covenant were to pay a fraction of the Company’s costs of providing etc scheduled services, a fraction of the contributions to the sinking fund for specified types of expenditure and the costs of and incidental to the administration and conduct of the Company’s affairs. Only the breach numbered “34” in the list of breaches in the Company’s Statement of Case relates to costs said to have been incurred by the Company.

11. Some further details of the costs are set out in clauses 5, 6 and 7 of the Company’s Statement of Case. These are pleaded as being (clause 5) the cost of cleaning as a result of “deliberate dog fouling” by residents of Priory Cottage - £3,784 the cost of dealing with “anti-social behaviour” by the residents of Priory Cottage, including the cost of time spent by a director in gathering CCTV evidence - £3,357.11 the cost of corresponding with Mr Wakefield and HM Land Registry - £3,212 (clause 6) the cost of installing and running CCTV system after April 2021 due to anti-social behaviour by the Respondents, Mr Wakefield’s share of the costs being £9,001.76 (clause 7) the cost of maintaining the sewerage pump system since January 2022 in the total sum of £6,077.31, of which the share applicable to Priory Cottage was £1,519.31 the cost of rectifying damage caused to the sewerage system by Mr Beach on the 5 th March 2023.

12. The items listed in clauses 6 and 7 are costs said to have been incurred in 2021, 2022 and 2023. They are not sums that were owed by Mr Wakefield under the terms of clause 5 in October 2018 at the time Mr and Mrs Beach asked the Company to provide the certificate that the terms of clause 5 of the deed of covenant had been complied with.

13. The Company did not provide in the proceedings any copy of a bill for the costs listed in clause 5. The Company did not provide evidence that these costs were due from Mr Wakefield as at 12 th October 2018. Mr Sawbridge in the long letter he sent on behalf of the Company dated 19 th July 2019 said that Mr Wakefield owed money to the Company because he had cancelled a monthly standing order with effect from March 2019. Mr Sawbridge did not state anywhere else in that letter that Mr Wakefield owed money to the Company.

14. In the absence of evidence that Mr Wakefield as at 12 th October 2018 owed money to the Company under the terms of clause 5 of the deed of covenant, the Company should have provided the certificate that the terms of clause 5 had been complied with. As the Company has not done so, it is just that the restriction should be disapplied so that the transfer to Mr and Mrs Beach can be registered and Mr and Mrs Beach can be entered on the register as the registered proprietors.

15. I note that Mr and Mrs Beach, by their solicitor, informed the Tribunal during the hearing that in the event it should be established that any costs have been incurred by the Company, falling within the categories of costs set out in clause 5 of the deed of covenant, between the date of the transfer to them and the date of registration, of which are share is attributable to Priory Cottage, they would not seek to argue that they were not liable for the costs on the grounds that the costs were incurred prior to registration of the transfer.

16. I shall direct the Chief Land Registrar to give effect to the application of Mr and Mrs Beach to disapply the restriction so that the transfer to them dated 12 th October 2018 can be registered.

17. The Tribunal has power in a land registration case to make an order for costs. Practice Direction 9 of the Property Chamber Land Registration Practice Directions states that if the Tribunal makes an order as to costs, it will usually order the unsuccessful party to pay the costs of the successful party but it may make a different order. Any party who wishes to apply for an order for costs should apply by email to the Tribunal and send a schedule of costs with their application. The parties are reminded that the Tribunal cannot award costs incurred prior to the date of the reference of the matter to the Tribunal by HM Land Registry. The date of the reference was 26 th April 2023. Any application for costs should be sent to the Tribunal and served on the other party by 5pm on 30 th October 2025. BY ORDER OF THE TRIBUNAL Judge Michael Michell DATED this 15 th October 2025