Unregistered Interests That Override Registered Interests

Question 1

Chhokar v Chhokar(1984) - Overriding interests

Answer 1

Ratio: No requirement for ‘continued and uninterrupted presence’, but there must be some degree of ‘permanence and continuity’, and, it the person is absent from the property , ‘an intention to return’

Facts:Mr Chhokar was in actual occupation. Her furniture was still at the property, and her occupation was not lost by her temporary absence . However , the purchaser was given credit for having paid the mortgage, and the court declared the wife and the purchaser to be tenants in common in equity in equal shares subject to this credit. Under schedule 3 paragraph 2 of the LRA 2002 a register d disposition of property can be overridden by the interest of a person who was in actual occupation at the time of the disposition , unless enquiry was made of the person with the interest and they failed to disclose the right when they could reasonably be expected .

Question 2

Malory Enterprises v Cheshire Homes (2002) - Overriding interests

Answer 2

This concerned derelict land. Boarding up windows, erecting a ‘No Trespassers’ sign and building a fence , installing a padlocked gate , were held to constitute actual occupation in those circumstances.

Question 3

Chaudhary v Yavus (2011) - overriding interests

Answer 3

This concerned a metal staircase . In this dispute over an easement ; using the staircase was held not to constitute an actual occupation. The 2002 Act had left very little scope for the doctrine of notice. The use of the staircase did not amount to actual occupation of any part of the metal structure by anyone which could give the Claimant’s rights the status of an overriding interest.

Question 4

Link Lending v Bustard (2010)- overriding interests

Answer 4

“The decisions on statutory construction identity the factors that have to be weighed by the judge on this issue. The degree of permanence and continuity 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”- Mummery LJ on the factors in assessing ‘actual occupation’

Question 5

Thomas v Clydesdale Bank Plc (2010)- overriding interests

Answer 5

Actual occupancy can be established when the house is under renovation because of her daily presence and the presence of workers acting on behalf of her and her intention to live in the home permanently. This confirms that the court can look into the nature of the property and the intention of the occupier. “…it is the visible signs of occupation which have to be obvious on inspection” “…the Bank has to have an actual knowledge of the facts which give rise to the alleged interest (rather than specific legal knowledge).” -Mr Justice Ramsay