“The third party mentioned in the instructions, namely Mrs Maxine Turner, is not actually resident at the property (Etwall Lawn(s)) … We do not consider that it is necessary to have a third party consent form in the circumstances as they now exist.”
“To whom it may concern … I am writing to confirm that I no longer live in The Cottage at Etwall, the full postal address being: 18 Main Street, Etwall, Derbyshire DE65 6LP.”
“Maxine and our grandchildren are and have always been financially dependent upon us to some degree since they have lived with us. Maxine has never paid any rent for her accommodation (and we have not asked her to) and we have usually paid utility bills for The Cottage as part of the whole property. We always paid our grandson’s school and university fees and continue to pay our granddaughter’s school fees.”
“… it would appear that Maxine Turner has a preceding interest to the [Bank]. The [Bank’s] mortgage offer appears to acknowledge that Maxine was resident at the property at the time, and as a matter of fact it has been her permanent residence ever since.”
“However, I have never assumed the status of resident in Barbados, and although I have spent much time there, I only ever stayed in Barbados on a visitor’s visa. I always regarded Etwall Lawn as my permanent residence. When I was in Barbados my son Alistair remained there in my absence under the care of his grandparents and lived in The Cottage until he went to school at Repton near Derby. Alistair and my daughter Megan who is 15 continue to live with me at The Cottage at Etwall Lawn.”
“The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing their house as their home and managing their joint affairs, there has at any time prior to the acquisition, or exceptionally at some later date, been an agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made, it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel. In sharp contrast with this situation is the very different when there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an agreement if they had applied their minds to the question, and where the Court must rely entirely on the conduct of the parties both as to the basis upon which to infer a common intention to share the property beneficially and thus the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by the payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But as I read the authorities, it is at least extremely doubtful whether anything less will do.”
“… within the area of the joint enterprise for the acquisition of land (which may be, but is not necessarily, the matrimonial home) the two concepts of [CICT and proprietary estoppel] coincide.”
“As in this case, the judge did not make any finding as to the existence of a constructive trust. He was not asked to do so, because it was not then seen as an issue in the case, but on the findings of fact which the Judge did make it was not disputed that if a proprietary estoppel arose the appropriate remedy was to grant Mr Yaxley in satisfaction of his entitlement, of a long leasehold interest, rent-free, on the ground floor of the property. Those findings do in my judgment equally provide the basis for the conclusion that Mr Yaxley was entitled to such an interest under a constructive trust. The oral bargain which the judge found to have been made between Mr Yaxley and Mr Browney-Gotts and had been adopted by Mr Browney-Gotts was definite enough to meet the test stated by Lord Bridge in Lloyds Bank plc v. Rossett[1991] 1 AC 107 , 132.”
“It was always our intention that The Cottage would be Maxine and Alistair’s home and although we stated in an application made for finance for the Company that we owned the whole of Etwall [Lawn] these facts were not strictly true as it was a decision made by my husband to secure funds for the Company to survive and to protect our employees, following extreme pressure applied to us from the banks.”
“Following the death of my son, it soon became obvious that Maxine was in such a fragile state, which previous and present medical records state, we needed to protect her and my grandson, so The Cottage was not placed in her name as we were concerned for the future if she remarried and the marriage failed. This did in fact happen with Maxine remarrying, having a second child and the marriage failing after eleven months.”
“The Cottage has never been lived in by anyone else, it has never been rented out as it has always been occupied by Maxine and Alistair as he was at school locally.”
“My grandparents Stuart and Erica Turner have always looked after the family affairs, private school fees for myself, my sister and our cousins.”
“There was never any doubt in my mind that this cottage was Maxine’s home. That was what the family intended considering it their moral responsibility to provide for Maxine even if this was never formally documented.”
“I would like to hold that the first defendant was sharing the occupation of the flat with second defendant. But I cannot bring myself to this conclusion. The truth is he allowed her to be in actual occupation, and that is all there is to it. She was a licensee rent-free and I fear that that does not give him protection.”
“On the facts, was the first defendant, at April 24, 1962, a person in actual occupation, though he was not in any ordinary sense residing there or treating it as his home, and the second defendant and her family were allowed by him to reside there? As a matter of the ordinary use of language, I do not consider the First Defendant to be such. For him it was argued that the phrase ‘in actual occupation’ derives from cases in which ‘actual occupation’ and ‘actual possession’ are used indifferently to describe a condition of enjoyment of the land itself, and the phrase ‘actual occupation’ here involves that form of the legal concept of possession as distinct from the other or notional forms of that concept consisting of the receipt of money payments derived from land, or of the right to possession though the land to be vacant. And it was argued that ‘actual possession’ was avoided by the draftsman as a phrase because of the difficulty which would flow from the definition of ‘possession’ in section 3(xviii) of theLand Registration Act 1925 . Reference was made to a number of authorities, including cases in the fields of rating, poor law and landlord and tenant, with a view to showing that possession, and therefore occupation, may be had through the medium of another. Suppose it was said, that the first defendant employed a resident caretaker to look after the flat in question, would the first defendant not be a person in actual occupation? I think that is correct. Then, it was argued, that is because the caretaker would be his licensee, bound to go at his will, and that with the position of the second defendant. But I think that here there is the distinction between the occupation by the caretaker as a matter of duty on behalf of the first defendant and occupation of the second defendant on her own behalf; both were licensees, but the former, by her occupation for which she was employed, was a representative of the first defendant and her occupation may therefore be regarded as his. The proposition that in each case the first defendant was in actual occupation because neither caretaker nor the second defendant had a right to independently of him, seems to me too broadly stated and to ignore that distinction. I do not say that a contract of employment or agency with a person residing there is essential to actual occupation by the other person. I think it might well be that if a house was used as a residence by a wife, separated from the tenant, her husband (whether or not in desertion), he could also be regarded as in actual occupation through her; the question of whether the husband was also a person in actual occupation did not, of course, arise in National Provincial Bank Ltd v. Hastings Car Market Ltd[1965] AC 1175 . But this conception, even if valid, could not extend to the relationship in the present case.”
“… on a true analysis of the position, JAD was in my judgment at the material time occupying the Unit simply as Mr Dugdale’s licensee. 45. While the Judge regarded this as a decision on its special facts, the decision of this court in Strand Securities Ltd v. Caswell[1965] Ch 958 is in my judgment clear authority for the proposition that where A permits B to occupy land on B’s own behalf by way of gratuitous licence, his capacity as licensor will not by itself entitle him to claim to be in actual occupation of the land, although the position will be different if B occupies as the representative of A (see Pages 908D-981C per Lord Denning MR and Pages 983G-985A per Russell LJ). Unless B occupies as the representative of A, circumstances going beyond A’s mere capacity as licensor will be required if he is to claim to be in actual occupation.”
“Then, were the wives in actual occupation? I ask, why not? 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 requires some special doctrine of law to avoid the result that each is in occupation. Three arguments were used for a contrary conclusion. First, it was said that if the vendor (I use this word to include a mortgagor) is in occupation, that is enough to prevent the application of the paragraph. This seems to me a proposition of general application, not limited to the case of husbands, and no doubt, if correct, would be very convenient for purchasers and intending mortgagees. But the presence of the vendor, with occupation, does not exclude the possibility of occupation by others. There are observations which would suggest the contrary in the unregistered land case of Caunce v. Caunce[1969] 1 WLR 286 , but I agree with the disapproval of these, and with the assertion of the proposition I have just stated by Russell LJ in Hodgson v. Marks[1971] Ch 892 , 934. Then it was suggested that the wife’s occupation was nothing but the shadow of the husband’s - a version I suppose of the doctrine of unity of husband and wife. This expression and the argument flowing from it was used by Templeman J in Bird v. Syme-Thomson[1979] 1 WLR 440 , a decision preceding and which he followed in the present case. The argument was also inherent in the judgment in Caunce v. Caunce[1969] 1 WLR 286 which influenced the decision of Templeman J. It somewhat faded from the arguments in the present case and appears to me to be heavily obsolete. The appellant’s main and final position became in the end this: that, to come within the paragraph, the occupation in question must be apparently inconsistent with the title of the vendor. This, it was suggested, would exclude the wife of a husband-vendor because her apparent occupation would be satisfactorily accounted for by his. But, apart from the rewriting of the paragraph which this would involve, the suggestion is unacceptable. Consistency, or inconsistency, involves the absence, or presence, of an independent right to occupy, although I must observe that ‘inconsistency’ in this context is an inappropriate word. But how can either quality be predicated of a wife, simply qua wife? A wife may, and everyone knows this, have rights of her own; particularly, many wives have a share in a matrimonial home. How can it be said that the presence of a wife in the house, as occupier, is consistent or inconsistent with a husband’s rights until one knows what rights she has? And if she has rights, why just because she is a wife (or, in the converse case, just because an occupier is the husband) should these rights be denied protection under the paragraph? If one looks beyond the case of husband and wife, the difficulty of all these arguments stands out if one considers the case of a man living with a mistress, or of a man and a woman - or for that matter two persons of the same sex - living in the house in separate or partially shared rooms. Are these cases of apparently consistent occupation, so that the rights of the other persons (other than the vendor) can be disregarded? The only solution which is consistent with the Act (Section 70(1)(g)) and with common sense is to read the paragraph for what it says. Occupation, existing as a fact, may protect rights if a person in occupation has rights. On this part of the case I have no difficulty concluding that a spouse, living in the house, has an actual occupation capable of conferring protection, and an overriding interest, upon rights of that spouse.”
“In 1982 the marriage broke down. Mr and Mrs Tizard agreed that Willowdown and the adjoining land should be sold and the net proceeds divided between them in equal shares. This was not done before Mr Tizard emigrated and has not been done since. Mrs Tizard moved into the spare bedroom when the marriage broke down. Willowdown has four bedrooms: the master bedroom, which until then the spouses had used and which continued to be used by Mr Tizard; two bedrooms occupied by the two children respectively; and the spare bedroom which was a room with a double bed. In November 1982 Mrs Tizard began to sleep, not always but sometimes, at her sister’s house about four miles away. She would sleep at Willowdown when Mr Tizard was not spending the night there. He was away quite often, and kept her informed when he would not be there. If she slept at her sister’s, Mrs Tizard would drive over early in the morning, give the children breakfast and get them ready for school, and then make herself ready to go to work at 9 am. She returned to give the children and herself an evening meal. She would leave if Mr Tizard returned in the evening, but stay the night, sleeping in the spare bedroom, if he was not there. Sometimes he was away for several nights, occasionally even weeks. Mrs Tizard formed a relationship with a Mr Mead; and, instead of going to her sister’s when she was not sleeping at Willowdown, Mrs Tizard began to go to Mr Mead’s cottage, which was also not far away. Most of her wardrobe she kept at Willowdown: her clothes were in three of the four wardrobe compartments in the master bedroom. Her toiletries, her dressing gown, her nightwear and so forth were also at Willowdown. These arrangements I find continued until mid-1983 when Mrs Tizard found a note from Mr Tizard saying that he was going on holiday abroad with the boy twin. Neither he nor the boy has returned.”
“Mrs Tizard was in my judgment in occupation of Willowdown notwithstanding that Mr Tizard was living there also; and notwithstanding the fact that on numerous occasions she slept elsewhere. The ‘physical presence’ to which Lord Wilberforce refers does not connote continuous and uninterrupted presence; such a notion would be absurd. Nor, indeed, do I consider that the requisite ‘presence’ is negatived by regular and repeated absence. I find that Mrs Tizard was in Willowdown virtually every day for some part of the day; that her life and activities were based on her presence, interrupted though it was, in Willowdown: there she prepared herself for work; there she cared for her children; there she looked after the house and the concerns of herself and the children; she went in the morning and returned in the evening to discharge her duties as housewife and mother. It is clear that prior to the time, November 1982, when she ceased always to sleep in the house when her husband was there, she had been in occupation; and, in my judgment, she did not cease to be in occupation simply because she made that change in her habits; significant though the change was.”
“Whether a person’s intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as continuous occupation marked (but not interrupted) by occasional absences, or whether it should be seen as a pattern of alternating periods of presence and absence, is a matter of perception which defies deep analysis. Not only the length of any absence, but also the reason for it, may be material (a holiday or a business trip may be easier to reconcile with continuing and unbroken occupation than a move to a second home, even though the duration is the same in each case). But there must come a point at which a person's absence from his house is so prolonged that the notion of his continuing to be in actual occupation of it becomes insupportable; and in my judgment that point must have been reached in this case, long before Mr Dawkins visited the house on4 January 1990 (and still more so, long before20 February 1990 ). By then Princess Madawi had not set foot in the property for over a year: she had for over a year been living with her mother in the Islamic household at Riyadh.”
“127. Before addressing the question of Mrs Thompson’s actual occupation directly, it is necessary to say a little more about ‘actual occupation’: (i) The words ‘actual occupation’ are ordinary words of plain English and should be interpreted as such. The word ‘actual’ emphasises that physical presence is required: Williams & Glyns Bank v. Boland[1984] 1 AC 487 per Lord Wilberforce at 504; (ii) It does not necessarily involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy on behalf of his employer: Abbey National BS v. Cann [1991] 1 AC per Lord Oliver at 93; (iii) However, actual occupation by a licensee (who is not a representative occupier) does not count as actual occupation by the licensor: Strand Securities Ltd v. Caswell[1985] Ch 958 per Lord Denning MR at 981; (iv) The mere presence of some of the claimant's furniture will not usually count as actual occupation: Strand Securities Ltd v. Caswell[1985] Ch 958 per Russell LJ at 984; (v) If the person said to be in actual occupation at any particular time is not physically present on the land at the time, it will usually be necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy: compare Hoggett v. Hoggett(1980) 39 P&CR 121 , per Sir David Cairns at 127.” (i) The words ‘actual occupation’ are ordinary words of plain English and should be interpreted as such. The word ‘actual’ emphasises that physical presence is required: Williams & Glyns Bank v. Boland[1984] 1 AC 487 per Lord Wilberforce at 504; (ii) It does not necessarily involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy on behalf of his employer: Abbey National BS v. Cann [1991] 1 AC per Lord Oliver at 93; (iii) However, actual occupation by a licensee (who is not a representative occupier) does not count as actual occupation by the licensor: Strand Securities Ltd v. Caswell[1985] Ch 958 per Lord Denning MR at 981; (iv) The mere presence of some of the claimant's furniture will not usually count as actual occupation: Strand Securities Ltd v. Caswell[1985] Ch 958 per Russell LJ at 984; (v) If the person said to be in actual occupation at any particular time is not physically present on the land at the time, it will usually be necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy: compare Hoggett v. Hoggett(1980) 39 P&CR 121 , per Sir David Cairns at 127.”
“… some of the primary facts point against Ms Bustard's actual occupation of the property at the relevant date: she was not personally present in the property on29 February 2008 ; she had been in a residential care home since January 2007; she was incapable of living safely in the property; and her visits to the property were brief and supervised. 26. Some of the primary facts point to Ms Bustard's continuing actual occupation of the property: it was her furnished home and the only place to which she genuinely wanted to return; she continued to visit the property because she still considered it her home; those who had taken responsibility for her finances regularly paid the bills, such as the community charge, from her funds; she was in the process of making an application to the Mental Health Review Tribunal in order to be allowed to return home; and no-one took a final and irrevocable decision that she would not eventually be permitted to return home. 27. Whether Ms Bustard was in ‘actual occupation’ of the property at the relevant date was an issue on which the trial Judge had to make an evaluation based on his findings of primary fact. As for the law he considered the relevant authorities on the concept of ‘a person in actual occupation’ of land in the earlier Land Registration legislation and now found in the 2002 Act. The construction of the earlier equivalent provisions by the House of Lords is binding on this court. The trend of cases shows that the courts are reluctant to lay down, or even suggest, a single legal test for determining whether a person is in actual occupation. The decisions on statutory construction identify the factors that have to be weighed by the Judge on this issue. The degree of permanence and continuity of presence 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.”
“But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to an abuse if the court is satisfied (the onus being on the party alleging the abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where these elements are present the later proceedings will be more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in the earlier proceedings that it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question of whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that the lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds had been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“… it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold the decision to which one was a party should be binding in proceedings to which the other is party. It is in that sense that I will regard the phrase ‘privity of interest’.”