| Williams & Glyn's Bank v Boland | |
|---|---|
| Court | House of Lords |
| Citation(s) | [1980] UKHL 4, [1981] AC 487 |
| Case history | |
| Prior action(s) | [1979] Ch 312 |
| Case opinions | |
| Lord Wilberforce | |
| Keywords | |
| Overriding interest, registered land | |
Williams & Glyn's Bank v Boland [1980] UKHL 4 is a House of Lords judgment in English property law on overriding interest.
Contents |
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.
The Court of Appeal held that the wife was in actual occupation under s 70(1)(g) of the 1925 Land Registration Act 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]
| “ |
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
This was followed by Templeman J. in Bird v. Syme-Thomson [1979] 1 W.L.R. 440, when he said, at p. 444A:
He followed it also in the present case when he said:
Any other view, he said, would lead to chaos. I profoundly disagree. Such statements would have been true a hundred years ago when the law regarded husband and wife as one: and the husband as that one. But they are not true today. I do not think those statements can stand with the decision of this court in Hodgson v Marks [1971] Ch. 892: nor with the standing of women in our society today. Most wives now are joint owners of the matrimonial home - in law or in equity - with their husbands. They go out to work just as their husbands do. Their earnings go to build up the home just as much as their husband's earnings. Visit the home and you will find that she is in personal occupation of it just as much as he is. She eats there and sleeps there just as he does. She is in control of all that goes on there - just as much as he. In no respect whatever does the nature of her occupation differ from his. If he is a sailor away for months at a time, she is in actual occupation. If he deserts her, she is in actual occupation. These instances all show that "actual occupation" is matter of fact, not matter of law. It need not be single. Two partners in a business can be in actual occupation. It does not depend on title. A squatter is often in actual occupation. Taking it simply as matter of fact, I would conclude that in the cases before us the wife is in actual occupation just as the old lady Mrs. Hodgson was in Hodgson v Marks. Once it is found that a wife is in actual occupation, then it is clear that in the case of registered land, a purchaser or lender would be well advised to make inquiry of the wife. If she then discloses her rights, he takes subject to them. If she does not disclose them, he takes free of them. I see no reason why this should cause any difficulty to conveyancers. Nor should it impair the proper conduct of businesses. Anyone who lends money on the security of a matrimonial home nowadays ought to realise that the wife may have a share in it. He ought to make sure that the wife agrees to it, or to go to the house and make inquiries of her. It seems to me utterly wrong that a lender should turn a blind eye to the wife's interest or the possibility of it - and afterwards seek to turn her and the family out - on the plea that he did not know she was in actual occupation. If a bank is to do its duty, in the society in which we live, it should recognise the integrity of the matrimonial home. It should not destroy it by disregarding the wife's interest in it - simply to ensure that it is paid the husband's debt in full - with the high interest rate now prevailing. We should not give monied might priority over social justice. We should protect the position of a wife who has a share - just as years ago we protected the deserted wife. In the hope that the House of Lords will not reverse us now as it did then. |
” |
(1)The House of Lords dismissed the appeal and emphasised that 70(1)(g) of the 1925 Land Registration Act 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)
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