Kingsworth Finance co Ltd v Tizard

The husband and wife had the freehold of a matrimonial home which was in the husband's name (the land being unregistered). The wife had an equitable interest by virtue of her contributions to the deposit and the mortgage to former properties, which were sold in order to purchase the property which was the subject of the dispute. After the marriage had broken down, but while the wife continued from time to time to occupy the matrimonial home, the husband (posing as solely entitled, and unmarried) obtained a mortgage. He later defaulted on the mortgage (and emigrated), and the issue was whether the mortgagee took subject to the interest of the wife.
Held
The mortgagee had constructive notice of the wife's interest, and therefore took subject to it.
Comment
The case is mostly a decision on the facts (was she really in occupation?), but is important because Caunce v. Caunce [1969] 1 WLR 286 was not followed, and Williams & Glyn's Bank v. Boland was regarded as illuminating on the definition of occupation even though Boland concerned registered land. It was also said, consistently with Boland, that the presence of the husband in the matrimonial home, with occupation, did not exclude the possibility of occupation of others. The case is stronger than the situation envisaged in Vaughan Williams L.J.'s dicta in Hunt v. Luck, since here (as in Boland) the vendor was also in occupation, yet still the mortgagee was affected by constructive notice of the wife's interest.

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