• In the case of Link Lending Ltd v Bustard [2010] EWCA Civ 424, it was established that one can be in actual occupation even if they were absent from occupation at the date of execution of a mortgage, as long as certain conditions were fulfilled.

Facts of 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

Issues in Link Lending Ltd v Bustard [2010] EWCA Civ 424

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

Held by the Court of Appeal

Appeal dismissed, Ms Bustard’s absence from the property did not constitute as evidence of a lack of actual occupation. She was in actual occupation, and therefore had an overriding interest.

Lord Justice Mummery

Actual occupation shall be considered on the weight of the following factors [27]:

  1. Degree of permanence, and continuity of presence of the person concerned,
  2. Intentions and wishes of that person,
  3. Length of absence from the property and reasons for it,
  4. Nature of property, and
  5. Personal circumstance of the person

Applying to the current case:

  • “the new and special feature is in the psychiatric problems of the person claiming actual occupation. The judge was … justified in ruling, at the conclusion of a careful and detailed judgment, that Ms Bustard was a person in actual occupation of the Property. His conclusion was supported by evidence of a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere, which was satisfactorily explained by objective reasons, and of a persistent intention to return home when possible, as manifested by her regular visits to the Property.” [30]

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