Actual Occupation
Schedule 3, para 2 Land Registration Act 2002:
1. Must be in actual occupation:
a. Look at facts of cases.
2. Must be “reasonably obvious” on a reasonable inspection of the land.
Williams & Glyn’s Bank v Boland –
Lord Wilberforce:
“There was physical presence, with all the rights that occupiers have, including the
right to exclude all others except those having similar rights. The house was a
matrimonial home, intended to be occupied, and in fact occupied by both spouses,
both of whom have an interest in it: it would require some special doctrine of law to
avoid the result that each is in occupation.”
Lloyds Bank plc v Rosset –
Property was semi-derelict, unfit for occupation during the time that builders were renovating
the property. C was there almost daily, assisting in the decorating.
CA found that she did have actual occupation.
Baker v Craggs –
Visiting a barn more or less daily in order to carry out work there.
Had been in actual occupation of the barn at the relevant time.
Whilst he had not been sleeping there, that could not be expected of a barn
that was being converted into stables.
His almost daily presence there to carry out the conversion work meant that
he had certainly maintained “more than a fleeting presence.”
Malory Enterprises v Cheshire Homes –
C was the registered proprietor of a derelict building.
There was actual occupation.
What constitutes actual occupation of property depends on the nature and
state of the property in question.
If a property was uninhabitable, residence is not required for actual
occupation but there had to be some physical presence with a degree of
permanence and continuity.
C had erected fences, boarded up windows to keep out trespassers and kept
the building locked.
Abbey National Building Society v Cann –
D argued that she had moved in the carpets 35 minutes before the charge was completed and
was therefore in actual occupation.
D was not in actual occupation.
The acts done by D on the day of completion had amounted to no more than
preparatory steps.
While ‘actual occupation’ did not necessarily involve the physical presence of
the person claiming to occupy, it did involve some degree of permanence and
continuity, more than a “mere fleeting presence”.
Lord Oliver: “A prospective tenant or purchaser who is allowed, as a matter
of indulgence, to go into property in order to plan decorations or measure for
furnishings would not, in ordinary parlance, be said to be occupying it, even
though he might be there for hours at a time.”
Schedule 3, para 2 Land Registration Act 2002:
1. Must be in actual occupation:
a. Look at facts of cases.
2. Must be “reasonably obvious” on a reasonable inspection of the land.
Williams & Glyn’s Bank v Boland –
Lord Wilberforce:
“There was physical presence, with all the rights that occupiers have, including the
right to exclude all others except those having similar rights. The house was a
matrimonial home, intended to be occupied, and in fact occupied by both spouses,
both of whom have an interest in it: it would require some special doctrine of law to
avoid the result that each is in occupation.”
Lloyds Bank plc v Rosset –
Property was semi-derelict, unfit for occupation during the time that builders were renovating
the property. C was there almost daily, assisting in the decorating.
CA found that she did have actual occupation.
Baker v Craggs –
Visiting a barn more or less daily in order to carry out work there.
Had been in actual occupation of the barn at the relevant time.
Whilst he had not been sleeping there, that could not be expected of a barn
that was being converted into stables.
His almost daily presence there to carry out the conversion work meant that
he had certainly maintained “more than a fleeting presence.”
Malory Enterprises v Cheshire Homes –
C was the registered proprietor of a derelict building.
There was actual occupation.
What constitutes actual occupation of property depends on the nature and
state of the property in question.
If a property was uninhabitable, residence is not required for actual
occupation but there had to be some physical presence with a degree of
permanence and continuity.
C had erected fences, boarded up windows to keep out trespassers and kept
the building locked.
Abbey National Building Society v Cann –
D argued that she had moved in the carpets 35 minutes before the charge was completed and
was therefore in actual occupation.
D was not in actual occupation.
The acts done by D on the day of completion had amounted to no more than
preparatory steps.
While ‘actual occupation’ did not necessarily involve the physical presence of
the person claiming to occupy, it did involve some degree of permanence and
continuity, more than a “mere fleeting presence”.
Lord Oliver: “A prospective tenant or purchaser who is allowed, as a matter
of indulgence, to go into property in order to plan decorations or measure for
furnishings would not, in ordinary parlance, be said to be occupying it, even
though he might be there for hours at a time.”
