Lloyds Bank v Rosset [1988] 3 All ER 915

Key point

  • The relevant date for ascertaining whether an interest in registered land was protected by actual occupation so as to be an overriding interest is that of the transfer or creation of the estate, not of its registration
  • Note that this summary only concerns the issue of actual occupation; the rest of Court of Appeal decision was overturned in the House of Lords where it was held that the defendant had no beneficial interest; for the full case note on the House of Lords decision go here

Facts

  • A house was bought by a man in his sole name for the purpose of cohabitation with his partner, D
  • The man took out a mortgage on the house with C bank
  • C made no financial contribution to either the purchase or refurbishment of the property
  • C bank claimed possession and an order for sale after the man defaulted
  • D argued that she had a beneficial interest in the property that was overriding

Held (Court of Appeal)

  • D had an overriding proprietary interest in the property
  • D had a beneficial interest in the home and was in actual occupation at the time the mortgage was taken out

Nicholls LJ

  • The relevant date for ascertaining whether an interest in registered land was protected by actual occupation so as to be an overriding interest is that of the transfer or creation of the estate, not of its registration
  • If an overriding interest did not subsist at the date of execution but a person subsequently entered into occupation before registration of the particular disposition, no overriding interest is created
  • Although the general rule for other overriding interests is that they have to subsist at the time of registration not disposition