UK: Actual Occupation for the Purposes of Establishing an Overriding Interest

Link Lending Ltd v Hussein [2010] EWCA Civ 424

The Court of Appeal was asked to consider whether the decision of the Judge at first instance in finding that Ms Bustard was in actual occupation of the property at the date of registration of a legal charge granted in favour of Link was wrong in that he misapplied the statutory provisions to the facts and arrived at a legally unsupportable conclusion in Ms Bustard's favour.

The question of whether a person, having a beneficial interest in a property, is in "actual occupation" as at the date of registration of a legal charge is an issue on which a Trial Judge had to make an evaluation based on his findings of primary fact. In this case, the facts were both for and against Ms Bustard having been in actual occupation at the relevant date. The trend of cases had identified the factors that had to be weighed by the Judge when considering the issue, including the degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it and that person's personal circumstances.

Having considered whether the Judge's decision was wrong as a matter of statutory construction or as a judgment of fact and degree, Sullivan LJ concluded that the Court should not disturb the decision that Ms Bustard was a person in actual occupation of the property. The Judge had not misconstrued the Land Registration Act 2002 or the authorities. Nor did he misapply the law by making an insupportable evaluation of Ms Bustard's situation regarding the property. His conclusion was supported by evidence of a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere and of a persistent intention to return home when possible, as manifested by her regular visits to the property.

Appeal dismissed.

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The original publication date for this article was 03/06/2010.