Williams and Glyn's Bank v Boland

Facts

Mr Michael Boland and Mrs Julia Sheila Boland lived on Ridge Park, Beddington, Surrey. Mr Boland, registered owner of the house, borrowed money from the bank for his building company, Epsom Contractors Ltd. Mr Boland failed to repay, and the bank sought possession. Mrs Boland argued that because she made substantial financial contributions to acquiring the home, she should be able to stay. The bank argued it did not qualify as a property right, basing its argument on the doctrine of conversion, and she should only get a share of any money made by her husband from the land, not a right enabling her to use it. Second, even if there was a property right, the bank’s defence was it registered its charge, and Mrs Boland’s right was not registered. The lack of registration defence does not work if the party claiming the unregistered right is in actual occupation. Then, that person has an overriding interest. But the bank argued that if she cohabited with her husband, she should not count as being in actual occupation because a bank’s investigation would not alert it to her having a property right in the land. It would be no surprise to find a shared occupancy.
Judgement

Court of Appeal

The Court of Appeal held that the wife was in actual occupation under section 70(1)(g) of the Land Registration Act 1925 and that therefore she had an overriding interest in the property.[1] The bank appealed contending that the wife's interest could only be considered a minor interest and that she could not be considered to be "in actual occupation". Lord Denning MR said the following.[2]

“
Actual occupation
The wife clearly has rights. The only question is whether she is herself a person "in actual occupation of the land." In construing those words, "actual occupation", it is no use looking at the meaning of occupation in other branches of the law, such as "rateable occupation" or occupation for the purposes of occupier's liability. I would only say that occupation need not be in one single person. Two persons can be in actual occupation, by themselves jointly or each of them severally.

In Caunce v Caunce [1969] 1 W.L.R. 286 Stamp J. seems to have held that, when a wife was living in the matrimonial home with her husband, it was the husband alone who was in actual occupation of it. The wife was not. Stamp J. said at p. 293 that she: *332

"... was not in apparent occupation or possession. She was there, ostensibly, because she was the wife, and her presence there was wholly consistent with the title offered by the husband to the bank."

This was followed by Templeman J. in Bird v. Syme-Thomson [1979] 1 W.L.R. 440, when he said, at p. 444A:

"In my judgment, when a mortgagor is in actual occupation of the matrimonial home, it cannot be said that his wife also is in actual occupation."

He followed it also in the present case when he said:

"actual occupation for the purposes of section 70 (1) (g) does not include the position of the wife of the legal owner who is in occupation."House of Lords

(1)The House of Lords dismissed the appeal and emphasised that section 70(1)(g) of the Land Registration Act 1925 should be interpreted in plain English. Accordingly what was required was physical presence on the land; the word ‘actual’ was not intended to introduce any additional qualifications but merely emphasised that what was required was physical presence and not some entitlement in law. Since the wife was physically present in the matrimonial home, with all rights that occupiers had, including the right to exclude all others except those having similar rights, and the home was a matrimonial home intended to be occupied and in fact occupied by both spouses, both of whom had an interest in it, the wife was in actual occupation.

(2) Even though the wife’s interest, in so far as it existed under a trust for sale, was an equitable interest capable of being overreached and therefore a ‘minor interest’ within s 3(xv) of the 1925 Act, it was also capable of being an overriding interest if it was protected by ‘actual occupation’, particularly if it was a house bought jointly by spouses to be lived in as a matrimonial home, because then it would be unreal to describe the spouses’ interests as merely an interest in the proceeds of sale, or rents and profits until sale, and there was every reason why, in that event, such an interest should acquire the status of an overriding interest. The wife’s interest, subsisting as it did ‘in reference to the land’, within the opening words of s 70(1), was by the fact of occupation made into an overriding interest and so protected by s 70(1)(g)