Boris Ignachkov Legal Principles and Key Points:
- In the case of Lloyds Bank v Rosset [1988] 3 All ER 915, the relevant date to determine actual occupation was affirmed – being at the date of transfer or creation of estate, rather than its registration.
Facts of Lloyds Bank v Rosset [1988] 3 All ER 915
- D’s husband bought a home for himself and his wife to reside in
- He took out a mortgage with the C bank
- The common intention of the parties was that the home’s renovation would be a joint venture, and the D wife had a beneficial interest in the property under a constructive trust
- D spent almost every day helping the builders, she was unaware that her husband had successfully applied for an overdraft for the purchasing and repairs
- This meant D did not contribute to either the purchasing of the home, nor the repairs
- The husband made no payments to C, the payment defaulted, and they sought possession of the property and an order for its sale
- D argued this could not happen due to her overriding interest in the property under s70 of the Land Registration Act 1925
Issues in Lloyds Bank v Rosset [1988] 3 All ER 915
- Did the D, who did not make monetary contributions to the home, have an overriding interest?
- Was she in actual occupation at the time the mortgage was taken out?
Held by the Court of Appeal
D had an overriding proprietary interest in the property, she held a beneficial interest in the home and was found to be in actual occupation at the time of the mortgage agreement.
Lord Justice Nicholls
Recognised the difficulty in understanding what to make of “the interval between execution of a transfer or mortgage and registration” [922]
“If a person is intending to move into a house but has not yet done so, he would not normally be regarded as having gone into occupation. That is the normal position with a house which is fit for living in. But that does not provide the answer in the present case, where the house was semi-derelict.” [925]
Lord Justice Mustill dissenting
Mustill LJ did not believe D to have an overriding interest, going as far as to say:
- “Even if the statute had referred to no more than ‘occupation’, and even if the various clues to the meaning of para (g) to which I have previously referred had not been available, I would still have held that the wife was preparing the home for occupation, but was not in occupation on the relevant date and with these further considerations added, I conclude with less hesitation (although acknowledging the difficulty of the issue) that the wife did not have an overriding interest within the meaning of s 70(1)” [942]
Editorial comment
This only concerned the issue of actual occupation. The House of Lords deemed that the D had no beneficial interest.
