French v Barcham [2008] 2 WLR 1124

A married couple held their home in joint names. The husband became bankrupt, but both spouses continued living in the property. His trustee in bankruptcy, Mr French, later sought a sale and an account. He claimed occupation rent from the wife to reflect her continued use of the property. She argued that he had no relevant right to occupy it himself and could not claim compensation under the occupation provisions of the Trusts of Land and Appointment of Trustees Act 1996. The court therefore considered whether an equitable accounting jurisdiction remained available beyond those statutory provisions.

Could the court order occupation rent for a bankrupt owner's trustee even though the trustee lacked the personal occupation right contemplated by TOLATA?

Blackburne J held that occupation rent could be ordered through the court's equitable accounting jurisdiction. That jurisdiction was not exhausted by the statutory machinery governing a beneficiary's occupation under the Trusts of Land and Appointment of Trustees Act 1996. The trustee in bankruptcy could not reasonably be expected to share the family home, and the court recognised a claim against the occupying co-owner on the circumstances. The judgment did not overrule Stack v Dowden, a higher authority; it addressed the reach of the statutory provisions in the bankruptcy setting. The decision must also be read with Davis v Jackson, which emphasises that occupation rent is not automatic and depends on the relevant equitable arrangements.

Equitable accounting may support occupation rent beyond TOLATA's statutory occupation provisions, including a claim by a trustee in bankruptcy. Whether rent is payable depends on the circumstances; the trustee's inability to occupy is not an automatic entitlement in every case.

French is important for identifying the basis of the court's accounting jurisdiction. It concerns bankruptcy and occupation charges, rather than replacing the House of Lords' principles of beneficial ownership in Stack v Dowden. Davis v Jackson later illustrates why the history of occupation and payment arrangements matters. In a problem question, separate the beneficial shares from mortgage credits, occupation charges and the order for sale, then justify each proposed adjustment on its own legal and factual basis.