Link Lending Ltd v Bustard [2010] EWCA Civ 424

Ms Bustard, C, suffered from a severe psychiatric condition which meant spending long periods of her life away from home, hospitalised C’s property was transferred to someone else, of which she did not receive any of the purchase price Despite this she continued living there, albeit substantial periods were spent at hospital A few years later she was detained at a residential care home The home had been mortgaged, however the mortgagor defaulted The mortgagee Link Lending, D, sought repossession of the property C claimed the transfer of legal title was voidable on grounds of undue influence or incapacity, and this meant she had an overriding interest through her actual occupation of the home when the mortgage was executed D argued that C was not in actual occupation as she was not in personal occupation at the date of registration of the charge

Was the C in actual occupation, and would therefore have an overriding interest in the property, despite not being present for the charge?

The Court of Appeal upheld the finding that Ms Bustard was in actual occupation despite her absence in care. Her absence was involuntary and explained by her psychiatric condition. She retained a continuing connection with the house, visited it and persistently intended to return. Mummery LJ identified factors including continuity, duration and reason for absence, the nature of the property and the person’s circumstances. No single factor was conclusive. The case did not substitute subjective intention for occupation or establish that every hospital patient retains overriding protection. The finding depended on objective evidence of a sufficiently enduring relationship with the property and the relevant underlying interest.

Actual occupation can continue during an involuntary absence where the evidence shows sufficient continuity and connection with the property. Intention to return, visits, the reason and length of absence and personal circumstances are relevant, but intention alone is not conclusive.

Bustard prevents actual occupation being reduced to physical presence at one instant. It should be compared with Cann’s preparatory acts and Chaudhary’s use of an access route, which raise different factual questions. A claimant must still establish an underlying proprietary interest and satisfy the applicable registration requirements. The case is a contextual assessment of continuing occupation, not a general exception based solely on illness or vulnerability.