The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had been such a person. She had been taken advantage of and persuaded to sell the house to a third party who had created the charge, but not paid her. Though she was not personally at the house, her personal effects were still there. Her condition meant that she would not have had capacity at the time she executed the transfer.
Held: The facts suggested points both ways, but ‘the courts are reluctant to lay down, or even suggest, a single legal test for determining whether a person is in actual occupation. The decisions on statutory construction identify the factors that have to be weighed by the judge on this issue. The degree of permanence and continuity of presence of the person concerned, the intentions and wishes of that person, the length of absence from the property and the reason for it and the nature of the property and personal circumstances of the person are among the relevant factors.’
The decision was one of fact and was to be disturbed only for clear error. No such error had been shown.
Mummery LJ, Jacob LJ, Sullivan LJ
 EWCA Civ 424,  28 EG 86,  18 EG 98 (CS),  2 EGLR 55
Land Registration Act 2002 29
England and Wales
Cited – Strand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
Cited – Stockholm Finance Ltd v Garden Holdings Inc 26-Oct-1995
Robert Walker J considered how a court should decide on whether a person was in actual occupation of a house: ‘Whether a person’s intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as . .
Applied – Thompson v Foy ChD 20-May-2009
Lewison J discussed the decision in Etridge: ‘In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Cited – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – Hoggett v Hoggett CA 1980
The court considered whether there had been an effective surrender of a property at law.
Held: Where a person claims to have been in occupation of land at law, but was not physically present, it was necessary to show that his occupation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2021; Ref: scu.408600