• In the case of Bristol & West Building Society v Henning [1985] 2 All E R 606, the overriding interest of a beneficiary in land will not apply where they gave consent to such disposition.

Facts of Bristol & West Building Society v Henning [1985] 2 All E R 606

  • Mr and Mrs Henning bought a house, of which he was the sole mortgagor
  • Mrs Henning had knowledge of this, and gave her approval
  • After payments were not made to the building society, Mr Henning was sued for possession of the home
  • Mrs Henning argued that she had an overriding interest in the home, and it could not be possessed by the building society as she had priority

Issues in Bristol & West Building Society v Henning [1985] 2 All E R 606

  • Mrs Henning knew and consented to her husband’s name being the sole name on the mortgage, despite this could she still have an overriding interest in the property?

Held by the Court of Appeal

  • Order of possession made – Mrs Henning did not have an overriding interest in the property.

Lord Justice Browne-Wilkinson

Lord Justice Browne-Wilkinson considered any express intention or implied intentions made by the defendants, which would show Mrs Henning’s right as a beneficiary:

  • “Mr and Mrs Henning did not contemporaneously express any intention as to the beneficial interests in the property. Therefore such intention if it exists has to be imputed to them from their actions. Mrs Henning knew of and supported the proposal to raise the purchase price of the Devon house on mortgage. In those circumstances, it is in my judgment impossible to impute to them any common intention other than that she authorised” [609]

Even if there was imputed intention shown, it would not show her priority over the building society’s charge on the property by way of mortgage

  • “it is impossible for Mrs Henning to establish that she is entitled to some form of equitable interest which gives her rights in priority to the rights of the society. I would therefore hold that, even on the assumption that Mrs Henning has some equitable interest or right in the Devon house, such interest or right is subject to the society’s charge and provides no defence to the society’s claim for possession.” [610]