Link Lending Ltd v Bustard [2010] EWCA Civ 424

Key point

  • A person not in personal occupation of property at the date of execution of mortgage can nonetheless be deemed to be in actual occupation if certain circumstances are met (see below)

Facts

  • A transfer of C’s property to H had been organised by C’s solicitor and C received none of the purchase price
  • H later defaulted on a mortgage secured on the property, the mortgagee, D, sought possession of the property
  • C claimed that the transfer was voidable on grounds of undue influence or incapacity and that her right took precedence over D’s charge as an overriding interest held in actual occupation when the charge was executed
  • At the date of registration of the charge, C was detained in a mental institution

Held (Court of Appeal)

  • C was in actual occupation and had an overriding interest

Mummery LJ

What amounts to actual occupation?

  • The authorities lay down no single legal test for determining whether a person is in actual occupation but they require a number of factors to be weighed, including:
    1. the degree of permanence and continuity of presence of the person concerned;
    2. the intentions and wishes of that person;
    3. the length of absence from the property and the reasons for it;
    4. the nature of the property; and
    5. the personal circumstances of the person

Current case

  • In the instant case, there was a special feature in the psychiatric problems of the person claiming actual occupation
  • The judge’s conclusion that the respondent was in actual occupation 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