• In the case of French v Barcham [2008] 2 wlr 1124 the principles established in Stack v Dowden [2007] UKHL 17 are rejected in favour of allowing an order for occupational rent to a trustee in bankruptcy to be granted based upon the court equitable jurisdiction outside the Trust of Land and Appointment of Trustee Act 1996 (TLATA). 

Facts of the Case

  • A couple lived in a property for which they were registered proprietors of their home. The husband was later declared bankrupt, but the couple continued to live on the property.
  • This was until the husband’s trustee, Mr. French, on December 14, 2006, applied for a court order to sell the property under s14 of the Trust of Land and Appointment of Trustee Act 1996. 

Issues in French v Barcham [2008] 2 wlr 1124

  • The trustee in the husband’s bankruptcy, the claimant in this case, Mr. French, was entitled to occupation rent from the wife, the defendant here.
  • The wife argued the court had no power to grant the claimant’s compensation because he did not hold a beneficiary title that would entitle him to possession. Therefore, Mr. French, the claimant was not eligible under s13 TLATA.

Held by the High Court

  • Occupation rent was ordered on behalf of the claimant.

Justice Blackburne

  • When occupation rent is to be granted:
  • It would be unreasonable for the co-owner to occupy the premises based on the circumstances, i.e. identity and relationship to the co-owner(s).
  • Occupation rent cannot be claimed if it is reasonable for the co-owner to occupy but he chooses not to.
  • Occupation rent should ordinarily be granted to a trustee in bankruptcy because it is unreasonable for the trustee to claim the right to occupy unless it’s shown that there was an understanding that no occupation rent will be charged or the co-owner occupying the property had no reasonable means of discovering that the other co-owner was bankrupt.

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