England and Wales Land Registry Adjudicator

REF/2012/1006

REC/2013/0041

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

AND IN THE MATTER OF AN APPLICATION TO SET ASIDE A DOCUMENT MADE UNDER SECTION 108(2) OF THE ACT

 

 

BETWEEN:

 

(1)    Jonathan Howard Roberts and Janet Ann Thain

(2)    Morgoed Estates Ltd

 

APPLICANTS

 

and

 

Brendan Keegan

 

RESPONDENT

 

AND BETWEEN:

 

Brendan Keegan

APPLICANT

 

and

 

(1)    Jonathan Howard Roberts and Janet Ann Thain

(2)    Morgoed Estates Ltd

RESPONDENTS

 

Property Address: 1 Arlington Road, Bristol (BS4 4AF)

Title Number: BL128360

 

 

Before: Mr Edward Cousins, sitting as the Principal Judge of the Property Chamber

 

Sitting at: Bedford Square on Tuesday 9 July 2013, and

Alfred Place on Monday 17 ^th February 2014

REF/2012/1006

Applicant Representation: Mr David Roberts, Solicitor, instructed by the Applicants

Respondent Representation: Mr Keegan in person

 

REC/2013/0041

Applicant Representation: Mr Keegan in person

Respondent Representation: Mr David Roberts, Solicitor, instructed by the Respondents

 

 

 

 

DECISION

 

KEYWORDS: Rentcharges – grant of lease over rentcharge to trustees to enforce payments due under a rentcharge – equitable status of lease pending registration - proof of title to rentcharge – proof of sums due and owing – legal effect of non-payment – whether notice of demands is a prerequisite to payment - application to register lease against title to property the subject of the rentcharge – whether the lease can be set aside as a sham transaction – statutory redemption of rentcharges - unreasonable, unconscionable behaviour, and/or lack of proportionality – Law of Property Act 1925, ss. 1(2)(b), 121 - Rentcharges Act 1977, ss. 2, 3, 8, 9, 10 - Land Registration Act 2002, ss. 4(2), 108(2) - The Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003, r.33

 

THE BACKGROUND

1.                   Mr Jonathan Howard Roberts and Ms Janet Ann Thain are the directors of Morgoed Estates Limited (“Morgoed Estates”). Morgoed Estates have acquired over the years a property portfolio comprising a large number of perpetual yearly rentcharges held over various properties throughout England. One such rentcharge (“the Rentcharge”) is that held in fee simple by Morgoed Estates over the property known as and situate at 1 Arlington Road, Bristol (“the Property”) of which Mr Brendan Keegan (“Mr Keegan”) is the registered proprietor. The Property was the subject of a first registration at HM Land Registry on 21 ^st September 2000 under title number BL65739, and the Charges Register records the entry of the Rentcharge on the same date.

 

2.                   The Rentcharge was originally created by an indenture dated 16 ^th January 1903 made between (1) Edgar Robson Tanner and Charles Frederick Loriston Clark, (2) William James, and (3) William James (“the 1903 Indenture”). This provides that the annual payment of £2-15s (£2.75p) is to be made by two instalments payable on 25 ^th March and 29 ^th September in each year, the first payment being made on 29 ^th September 1902. It is contended that Morgoed Estates hold the Rentcharge as an estate in fee simple as successors in title to Ms Marjorie Constance Moorse (deceased) by virtue of a conveyance made on 25 ^th September 2003 (“the September 2003 Conveyance”). It is noted on the title to the Property that the 1903 Indenture has been filed with HM Land Registry.

 

3.                   Mr Jonathan Howard Roberts and Ms Janet Ann Thain in their capacity as directors of Morgoed Estates are also trustees (“the Trustees”) of a lease dated 28 ^th March 2012 and made between (1) Morgoed Estates and (2) the Trustees (“the Lease”). The Lease was purportedly granted over the Rentcharge and was executed by the parties on 28 ^th March 2012. It is said to have been granted by Morgoed Estates under the power contained in section 121(4) (“Section 121(4)”) of the Law of Property Act 1925 (“the 1925 Act”).

 

THE APPLICATIONS

4.                   There are two applications before this Tribunal. The first is an application made in Form AP1 dated 28 ^th March 2012 made by the Trustees (“the Referral Application”). The second application dated 20 ^th October 2013 (“the Set-Aside Application”) is made by Mr Brendan Keegan who seeks to set aside a document pursuant to the provisions of section 108(2) (“Section 108(2)”) of the Land Registration Act 2002 (“the 2002 Act”), the relevant document being the Lease.

 

The Referral Application

5.                   By the Referral Application the Trustees seek to register the Lease. This power is said to have arisen under Section 121(4) from the purported non-payment of rent by Mr Keegan allegedly due under the Rentcharge. The Trustees have been appointed as trustees by the company to enforce what are asserted to be outstanding payments of the Rentcharge over the Property owed by Mr Keegan. By virtue of its interest in the Property it became apparent that Morgoed Estates should be made a party to the Referral Application. By a direction made on 8 ^th November 2012 Morgoed Estates was duly added as second Applicants to the Referral Application.

 

6.                   Notice of the application to register the Lease was served on Mr Keegan as the proprietor of the Property subject to the Rentcharge. He objected to the registration of the Lease on the grounds that Morgoed Estates has acted unreasonably in relation to the collection of the Rentcharge, and as such the sums to be collected in relation to costs associated with the Rentcharge were and are not due as demanded. The fundamental plank of his case is that he has consistently sought conclusive proof that Morgoed Estates are the current owners of the Rentcharge. However, as he asserts, despite numerous requests being made such evidence has never been fully or properly supplied. He therefore submits that unless such proof of entitlement is forthcoming he does not see why he should have to make the payments sought. As Mr Keegan has put it during the hearing, he “cannot pay to someone he does not know is the owner” and that he was “always willing to pay to the legal owner of the Rentcharge”. In other words he says that all he has ever been asking for is proof of ownership. He also challenges the amounts of the sums sought to be paid on the basis that he has in fact made some payments, and the precise amounts said to be due and owing are unclear, and no proper evidence has been provided of the sums due.

 

7.                   Mr Keegan therefore contends that the Lease should not be registered in order to collect sums which he asserts have been unreasonably demanded and/or are not legally due and owing. For their part the Trustees consider that Mr Keegan has no reasonable grounds for objection to the Referral Application in fact and law.

 

The Set-Aside Application

8.                   The circumstances surrounding the making of the Set-Aside Application by Mr Keegan are as follows: - during the procedural stages of the Referral Application it seemed from the written documentation provided by Mr Keegan that the sums alleged to be due and owning under the Rentcharge were conceded (see the e-mail dated 9 ^th April 2013 from Mr Keegan to Mr David Roberts and the Adjudicator). It therefore seemed appropriate at that stage that a direction should be made pursuant to Rule 33 of The Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 (as amended) which would then enable the Adjudicator to make a substantive order without a hearing.

 

9.                   Following a direction to that effect dated 17 ^th April 2013 Mr Keegan objected to the Rule 33 Direction, and the interpretation placed upon the correspondence from him. It became apparent that he was making no such concession. The case was therefore duly listed for a disposal hearing on 9 ^th July 2013. However, at that hearing, although Mr David Roberts was present on behalf of the Trustees and Morgoed Estates, Mr Jonathan Howard Roberts, as the primary witness relied upon to provide the requisite proof of the sums due and owning under the Rentcharge, was not present to give the oral necessary evidence in support. This was despite the fact that it was clear that the sums demanded and the method of demand were in issue. It is to be noted that in the statement of case provided by the Trustees it is stated that Mr Jonathan Howard Roberts was the only witness who was to be called to give evidence. His witness statement served in the proceedings is dated 28 ^th March 2012.

 

10.               At the hearing on 9 ^th July 2013 Mr Keegan made a number of challenges to the written evidence provided. In particular he challenged the sums said to be due and owing prior to the grant of the Lease, and the failure to demand such sums. It also became apparent that an important feature of Mr Keegan’s response to the Referral Application was his assertion that the process adopted by Morgoed Estates in granting the Lease to the Trustees pursuant to Section 121(4) based upon sums claimed to be due under the Rentcharge was flawed. As a consequence he seemed to be asserting that the Lease executed by the parties to the Trustees was not validly created.

 

11.               In this context it should be emphasised that Mr Keegan is a litigant in person with no resources to seek and obtain legal advice. He also says that he is dyslexic. I have to take into account these aspects especially in the light of the fact that the area of law relating to rentcharges is somewhat arcane.

 

Case Management Conference

12.               It was in these circumstances that the direction was made dated 1 ^st October 2013 under cover of the letter bearing the same date. This provided that a case management conference would be held in order to consider:-

 

(1)    Whether Mr Keegan’s application dated 20th October 2013 is a properly constituted application under Section 108(2) of the 2002 Act; and if so

(2)    Whether Mr Keegan has standing to make such an application;

(3)    What further consequential directions should be given.

 

THE ISSUES

13.               Mr Keegan’s main contention in both the Referral Application and the Set-Aside Application is that on several occasions he has sought to be provided with evidence of the Morgoed Estates’ legal title to the Rentcharge, but that this has not been forthcoming. In paragraph 6, above, I have set out a summary of Mr Keegan’s contentions in this regard. Indeed it would appear that it was not until the Trustees served their statement of case in the Referral Application together with a number of exhibits (which include the 1903 Indenture and the September 2003 Conveyance) that such evidence was indeed provided. Mr Keegan has stated that he has been willing to pay the sums due under the Rentcharge, but in the absence of such evidence he has been resistant to making such payments, although (as I have stated above) he agrees that some sums have been paid since the September 2003 Conveyance.

 

14.               The question therefore arises as to the implications of any failure to pay the sums due under the Rentcharge for those years which still remain unpaid for the rent periods prior to the grant of the Lease.

 

15.               Thus an important aspect to be resolved is the extent to which the Rentcharge remains unpaid on the due dates for the following years:-

 

25 ^th March 2006

25 ^th March 2007

25 ^th March 2008

25 ^th March 2009

25 ^th March 2010

25 ^th March 2011

 

16.               There are therefore a number of specific issues to be resolved on an analysis of the documentation, particularly those raised by Mr Keegan in his statement of case in the Referral Application, and repeated in his submissions in the Set-Aside Application, and in correspondence. These can be summarised under a number of heads, as follows:-

 

(1)                Efficacy of Morgoed Estates’ legal title to the Rentcharge, and the requirement, or otherwise, of notice of the conveyance of title

(2)                Proof of sums due, and still remaining due, under the Rentcharge

(3)                Method of demand of sums due under the Rentcharge, and the requirement, or otherwise, of notice as a prerequisite of payment

(4)                Legal effect of non-payment of sums due under the Rentcharge

(5)                Efficacy of the grant of the Lease to the Trustees

(6)                Effect of the provisions of section 3 of the 1977 Act

(7)                Efficacy of statutory redemption of Rentcharge after grant of Lease, and equitable status of lease pending registration

(8)                Whether the grant of the Lease can be construed as a sham transaction

(9)                Whether there has been any unreasonable, unconscionable behaviour, and/or lack of proportionality on the part of Morgoed Estates

 

THE TRUSTEES’ CASE

17.               In the Referral Application the Trustees served a statement of case dated 2 ^nd January 2013. This sets out from their perspective the full factual background and legal argument. Mr David A Roberts is the signatory to the statement of truth. As noted above, in the list of witnesses it is stated that it was intended to call Mr Jonathan Howard Roberts (the first Trustee) .

 

18.               In their statement of case the Trustees set out a number of facts upon which they rely in support of the Application for registration of the Lease. The essential basis of the Trustees’ case is that under Section 121(4) Morgoed Estates as the legal owners of the Rentcharge were entitled to grant the Lease over the Property affected by the Rentcharge as sums due remained unpaid on the due dates. They contend that there is no answer to this. Further, if it be Mr Keegan’s case that he is challenging the legality of the Trustees’ title to the Rentcharge, it is their submission that this has no basis in law. It is therefore contended that the Respondent’s objections are groundless, and that the Trustees are entitled to be registered as proprietors of the Lease.

 

19.               Two issues thus arise for consideration. First, it is contended by the Trustees that Morgoed Estates notified Mr Keegan of its purchase of the Rentcharge by sending to him to a copy rent authority letter dated 9 ^th October 2003 produced by the solicitors for Mrs Moorse (Messrs Veale Wasbrough). It is asserted that this rent authority letter was produced as a blank document and then apparently overprinted with the address of the Property taken from the database of Morgoed Estates. The letter contained in the bundle prepared by the Trustees for the hearing (“the Bundle”) contains no address of the sendee. It is also contended that a formal rent demand accompanied the rent authority letter allegedly indicating the arrears of rent owed by Mr Keegan at the time of sale of the Rentcharge. This document does not appear in the Bundle, nor does the document apparently stating that Morgoed Estates would in effect redeem the Rentcharge on payment of an appropriate sum of money. The rent demand apparently indicated the arrears owed by Mr Keegan at the time of sale were in respect of the years ending 25 ^th March 2001 to 25 ^th March 2003 and which remained outstanding, so it is asserted. It is submitted that Mr Keegan was therefore properly informed of the change of ownership of the Rentcharge. Further it is contended that Mr Keegan has acknowledged the title of Morgoed Estates by paying to them on 3 ^rd March 2005 by cheque the sum of £5.50 apparently in relation for the period from 26 ^th March 2002 to 25 ^th March 2004.

 

20.               Secondly, it is asserted by the Trustees and Morgoed Estates that sums remain due and owing under the Rentcharge. It is said that Mr Keegan has not paid any rent since 3 ^rd March 2005. However, during the course of the first hearing it became apparent that there is a degree of uncertainty as to which sums still remain unpaid. Thus the amount actually paid and received is in fact the subject of a dispute, to which I shall refer again below.

 

21.               As to the necessity or otherwise to serve rent demands in writing Morgoed Estates contend that as a matter of principle rents due under a rentcharge are customarily due whether demanded or not. Even though they not obliged to do so, Morgoed Estates assert that they have demanded in writing the rent due under the Rentcharge annually in arrears on or before 25 ^th March each year from 2004 to 2011, and these demands have been sent to the Property itself addressed to “The Owner” between 2003 and 3 ^rd March 2005, but to no other address. After 3 ^rd March 2005 until 16 ^th March 2010 demands were addressed to “Mr B Keegan or Owner”. On 16 ^th March 2010 the rent demand for the rent falling due on 25 ^th March that year was returned marked “Gone Away”.

 

22.               It appears to be common ground that Mr Keegan does not live at the Property and that the Trustees and Morgoed Estates were aware of this fact. The question therefore arises as to what, if, any legal duty there is imposed upon the Trustees, or Morgoed Estates, to seek to ensure that Mr Keegan was made aware in writing or otherwise, of the sums due under the Rentcharge. As noted above, the Trustees assert that they are under no such duty, and parallel duties imposed in other areas of law such as housing law have no bearing on the position relating to the law of rentcharges.

 

THE CASE FOR MR KEEGAN

23.               For his part, Mr Keegan has provided two statements of case. This somewhat confused the position at the hearing of the Referral Application on 9 ^th July 2013. After some discussion it was decided that the relevant document was that dated 14 ^th February 2013 to which a number of documents were annexed.

24.               In his statement of case several points are made by Mr Keegan. In paragraph 6 above I have set out the broad thrust of his assertions. In summary he asserts that he has always had the full intention and willingness to pay the sums due to the legal owner of the Rentcharge. He has sought confirmation from Morgoed Estates that they are indeed the legal owners of the Rentcharge, but he contends that this information has never been fully or properly provided. He also challenges the proportionality of their approach to the circumstances and grounds his case on the manifest unreasonableness of Morgoed Estates and the Trustees in their adopted approach.

 

THE LEGAL POSITION

General

25.               Rentcharges are of ancient origin, but became popular in Victorian and Edwardian times as a means of purchasing property. They still continue to be of legal effect in certain parts of the country, especially in the areas of Bristol, Bath and Manchester. They have been long used as a substitute for capital payments on the sale of land. The formula adopted was that the seller would accept a reduced capital sum as the purchase price of land, or no capital sum at all, but in substitution for that sum, or in addition to a reduced sum, the seller would require a periodic payment in the nature of a rentcharge secured over the property with powers of enforcement granted to the rentcharge owner if the money is not paid. It should be emphasised that the concept of a rentcharge must be distinguished from the concept of a rent service found in the relationship of landlord and tenant with which it is often confused.

 

26.               Following the recommendations of the Law Commission, (Law Com No. 68) the Rentcharges Act 1977 (“the 1977 Act”) made provision for the abolition of those rentcharges which were inconvenient unpopular and anomalous, whilst exempting those which were considered to remain of use. Section 2(3) of the 1977 Act, as enacted, provides that the section does not prohibit the further creation of rentcharges such as estate rentcharges (as defined by the 1977 Act). Existing rentcharges such as the Rentcharge in question continue to remain enforceable until extinguished, but no new such rentcharges whether legal or equitable can be created, except for those exempted by statute.

 

27.               For a rentcharge to be a legal interest it must take effect in possession and be created in fee simple or for a term of years absolute (see section 1(2)(b) of the 1925 Act). A rentcharge so created is an incorporeal hereditament and consequently constitutes real property. It is therefore fully alienable. A deed is necessary for the creation of a legal rentcharge by an inter vivos instrument. Accordingly, the owner of a rentcharge in possession issuing out of or charged on land which is either perpetual or for a term of years absolute, and which subsists as a legal estate, may apply to have his title to the rentcharge registered under the 2002 Act. The rentcharge will be noted in the Charges Register against the title to the estate affected by it.

 

28.               However, section 3 of the 1977 Act provides that every existing rentcharge (subject to certain exceptions) shall be extinguished at the expiry of 60 years beginning with the enactment of the Act, namely 22 ^nd July 1977, or with the date on which the rentcharge became first payable, whichever is the later. In the present case in principle (and subject to the provisions contained in section 3(2) of the 1977 Act) the Rentcharge will therefore be extinguished on 22 ^nd July 2037. It therefore will only remain enforceable for a further 23 years or so, unless it has been extinguished in some other way. On the basis that the Rentcharge would be extinguished as a matter of law the approximate amortised amount due and owing between 29 ^th September 2013 and 22 ^nd July 2037 is therefore about £63. It is to be noted that the although the Rentcharge itself will be extinguished on 22 ^nd July 2037 the oddity is that the Lease granted to the Trustees in principle will continue as it was created for the term of 99 years from 28 ^th March 2012. This gives rise to the question as to whether the creation of the Lease could be construed as a sham transaction.

29.               One method of extinguishment of the Rentcharge which Mr Keegan could have pursued is to have sought a statutory extinguishment pursuant to the 1977 Act by making an application to the Secretary of States for redemption pursuant to the redemption provisions contained in sections 8 to 10. He does not seem to have pursued this, and it may be from what he has stated that he considered that this was no longer open to him once the Lease had been granted.

 

Remedies for recovery of sums due under a rentcharge

30.               There are four remedies available for the recovery of a rentcharge provided by section 121 of the 1925 Act. For present purposes the remedy pursued by Morgoed Estates is the provision contained in section 121(4) which provides as follows:-

 

“In the like case the person entitled to the annual sum, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by all or any of the means hereinafter mentioned, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and all costs and expenses occasioned by non-payment of the annual sum, or incurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed:

 

Provided that this subsection shall not authorise the creation of a legal term of years absolute after the commencement of this Act, save where the annual sum is a rentcharge held for a legal estate.

 

The surplus, if any, of the money raised, or of the income received, under the trusts of the deed shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created.

 

The means by which such annual sum, arrears, costs, and expenses may be raised includes –

(a) the creation of a legal mortgage or a sale (effected by assignment or sub demise) of the term created in the land charged or any part thereof,

(b) the receipt of the income of the land comprised in the term.”

 

31.               It is provided by sub-section (5) that the section applies only if and so far a contrary intention is expressed in the instrument creating the rentcharge. No such contrary intention is expressed in the 1903 Indenture in that this deed is silent on the point.

 

32.               The reference to in the “like case” refers to the provisions contained in sub-section (3) which provides as follows:-

 

“If at any time the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or otherwise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum, are fully paid; and such possession when taken shall be without impeachment of waste.”

 

Extinguishment of rentcharges

33.               The owner of a rentcharge may release all or part of the land charged by the rentcharge from the charge. The owner of a rentcharge also may release the land charged from all or part of the sum charged (see Co.Litt. p.148a). Merger and lapse of time are also ways in which a rentcharge may be extinguished.

 

34.               However, for present purposes the remedy available in principle to Mr Keegan under the 1977 Act is to seek a statutory redemption of the Rentcharge as provided for by section 8 to 10 of the 1977 Act. In such a case the owner of any land affected by a rentcharge may apply for a “redemption certificate” from the Secretary of State under section 8, and a procedure can then be followed whereby a redemption price is calculated by a formula contained in section 9, and the rentcharge is thereafter duly redeemed on the sum calculated being paid to the rentcharge owner. The difficulty in the present case is that it would seem that no application has been made by Mr Keegan seeking statutory redemption before the lease had been executed. However, there would seem to be no procedural or legal inhibition preventing him from still making an application for a certificate whilst the Lease remains unregistered and remains an equitable and not a legal interest, or indeed even after the registration has been perfected. This is a matter which should be the subject of further consideration by Mr Keegan.

 

Rent demands

35.               It is contended by the Trustees/Morgoed Estates that there is no provision at law requiring a rentcharge owner to issue a rent demand as a prerequisite to the liability of a freeholder to make a payment of rent due under a rentcharge, or indeed to give any notice prior to exercising any remedy available to it under Section 121 of the 1925 Act..

 

36.               Morgoed Estates states that it does in any event issue a single annual rent demand (in arrears) for each rentcharge owned or managed by it, in this case on or before 25 March each year. Mr Keegan acknowledges receiving some of these. However, one the points made by him (as referred to above) is that Morgoed Estates are failing to fulfil the terms of the Rentcharge deed by issuing a single annual rent demand rather than two by reference to the due dates.

 

37.               For their part the Trustees assert that there is no law on this subject. In any event all rent demands issued by Morgoed Estates contain a warning that enforcement action may be taken to recover rent. Between 2005 and the grant of the lease it is submitted that at least six such demands were sent to the Property. A formal notice of possible possession proceedings was also issued to Mr Keegan on the February 2005.

 

Reasonableness

38.               It is also submitted by the Trustees that reasonableness per se is not a concept that should apply to the registration of the Lease. The two considerations that might prohibit registration are (1) if the pre-conditions to allow the execution of the lease have not been met, and (2) whether the lease is one to which the section 4(2) of the 2002 Act applies. It is contended by the Trustees that the pre-conditions have been met here in that:

 

(1)                Morgoed Estates as the owner of the Rentcharge held the title to the Rentcharge at the relevant time;

(2)                The Rentcharge was a valid rentcharge granted after 31 ^st December 1881, and the document that created it does not exclude the powers reserved to the rentcharge owner by Section 121 of the 1925 Act;

(3)                The rent due under the Rentcharge had remained unpaid for 40 days or more; and

(4)                The Lease is for a term of 99 years.

 

39.               In any event it is contended that Morgoed Estates were not acting unreasonably in granting the Lease in that:-

 

(1)                Rent demands were issued to the Property despite there being no obligation to do so;

(2)                The Rentcharge was unpaid for the period 26 ^th March 2005 to 25 ^th March 2012;

(3)                Mr Keegan did not inform Morgoed Estates of his preferred address for correspondence until he objected to the application. As of the date of the Lease, the property was listed as Mr Keegan’s address for service in his title;

(4)                Correspondence and other contact with Mr Keegan suggested that he was either unwilling to pay rent or wished to attach unreasonable conditions to payment;

(5)                The title of Morgoed Estates to the Rentcharge itself could potentially have been in jeopardy for limitation reasons had it not acted to secure its interest;

(6)                Granting the Lease was a more cost-effective remedy for all parties than bringing an action to re-enter the property;

(7)                If Mr Keegan had not attempted to avoid payment of rent, Morgoed Estates asserts that it freely offers the chance for freeholders to redeem rentcharges affecting their property for a reasonable redemption fee. It is contended in the Trustees’ skeleton argument that Mr Keegan could have done this at any time for around £50. However, no mention is made of any costs and charges associated with such redemption.

DECISION

40. In my judgment having regard to the submissions made on behalf of the Trustees and Morgoed Estates and by Mr Keegan on 17 ^th February 2014 and the documentation contained in the various bundles produced by both sides, and the issues to which I have made reference above, I have come to the conclusion that the two questions posed for the purposes of the case management conference are to be answered in the affirmative. In other words in my judgment the Set-Aside Application is a properly constituted application, and Mr Keegan has the necessary standing to make it. I find that serious issues have emerged during the course of the Referral and Set-Aside Applications which require detailed considerations of the factual and legal issues at trial. I therefore propose to make the following directions:

(1)                The Trustees and Morgoed Estates are to file with the Tribunal, and serve on Brendan Keegan, their witness statements as to fact in case REF/2012/1006, by 5pm 21 days from the date of issue of this Decision.

(2)                Mr Keegan is to file with the Tribunal and serve on the Trustees and Morgoed Estates, any witness statement as to fact in case REF/2012/1006, by 5pm 42 days from the date of issue of this Decision.

(3)                Mr Keegan may, if so advised, file with the Tribunal and serve on the Trustees and Morgoed Estates, a reply to the objection served by Morgoed Estates in case REC/2013/0041, by 5pm 42 days from the date of issue of this Decision.

(4)                Further directions will be made thereafter as to the provision of written submissions on law and fact.

(5)                Liberty to apply.

 

 

 

Dated this 3 ^rd day of March 2014

 

 

BY ORDER OF THE TRIBUNAL