Abbey National building society v Cann

In Abbey National Building Society v Cann, House of Lords clarified about what amounts to ‘actual occupation' and on what date a person must be in ‘actual occupation' to have an overriding interest under s. 70(1)(g) binding upon a purchaser/ mortgagee. Was it the date of completion of the sale or mortgage, or was it the (inevitably later) date of registration? Their Lordships held in favour of the ‘date of completion' of the sale or mortgage.

Lord Oliver, who delivered the only reasoned speech in Abbey National v Cann, elaborated on the issue of what constitutes ‘actual occupation':

It is, perhaps, dangerous to suggest any test for what is essentially a question of fact; occupation is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied. It does not necessarily, I think, involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy, I should have thought, on behalf of his employer. On the other hand, it does in my judgment, involve some degree of permanence and continuity which would rule out mere fleeting presence.

In cases of temporary absence it seems that the presence of the occupier's belongings on the premises and the continuing intention to return may help to establish actual occupation, and in such cases the courts take into account whether the occupier had a continuing intention to return, and whether his or her belongings remained in the property. As the Court of appeal put it in Hoggett v Hoggett:

Going to hospital for a few days could not be regarded as going out of occupation, any more than if the [occupier] had gone on a weekend visit to a friend, or, indeed, gone out shopping for a few hours.

Thus inter alia as Mrs. Chhokar was in hospital for a short period with a continuing intention to return and her belongings were also present in the house, which shows that she was in actual occupation and hence an overriding interest.



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