Hypo-Mortgage Services Limited v Robinson and Another: CA 17 Nov 1996

The court refused parents leave to appeal against a mortgage possession order, rejecting their argument that children living with them had a beneficial interest in the mortgaged premises and were thus ‘in actual occupation’ so as to have overriding interests under section 70(1)(g) of the Land Registration Act 1925. A child cannot be in occupation of land so as to constitute an overriding interest.
Lord Justice Nourse said: ‘I regard it as axiomatic that minor children of the legal owner are not in actual occupation within s 70(1)(g)
The minor children are there because their parent is there. They have no right of occupation of their own.
They are only there as shadows of their parent.’ and ‘No inquiry can be made of minor children or consent obtained from them in the manner contemplated by [s 70(1)(g)], especially when they are, as here, of tender years at the material date. If the second defendant was right, lenders would never be protected. Their security could always be frustrated by simple devices.’
Nourse LJ
Times 02-Jan-1997, [1996] EWCA Civ 899
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Cited by:
CitedRoyal Borough of Kingston Upon Thames v Wendy Prince Marie Emma Prince (a Minor) (Acting By Her Guardian Ad Litem Wendy Prince) CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .

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Updated: 20 April 2021; Ref: scu.81580