The Gazette 1981

APRIL 1981

GAZETTE

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." Ormrod, L.J. commented that these appeals, at first sight, looked like a renewed attempt by married women to assert their rights in the matrimonial home, following their defeat in the House of Lords in the Ainsworth case:- "And so in a sense they are; but with the important difference that these appellant wives are relying not upon their position as married women, but upon their property rights as ordinary citizens. It is con- ceded by the respondents ("the bank") that in each case the wives have made a substantial, in one case a very substantial, contribution to the purchase price of the property in dispute. They are seeking to protect their investments as well as to resist the attempt to dispossess them of their respective homes. The fact that in both cases the wives are married to the persons in whom the legal estate in the property is vested is therefore incidental; their contentions would be exactly the same if they were not married or were of the same sex as the legal proprietors." The wives were co-owners in equity with the persons holding the legal estate and they were physically at least, occupying the house. The social changes which had taken place since the property legislation of 1925 was passed had made this problem increasingly acute. The great in- crease in the number of married women who earned their living before marriage, or continued to be employed after marriage, and so contributed financially to the purchase of their homes, many of which continued to be conveyed into the name of the husband alone, had enlarged the class of equitable tenants in common to an extent which could not have been contemplated in 1925. The only comparable case to which the Court of Apeal (though since it was concerned with unregistered land, it was not directly in point) had been referred was Caunce v. Caunce. In that case Stamp J. [ 1969] 1 W.L.R. 286, 293 had held that the purchaser was not affected with notice of the wife's rights because:— "the plaintiff, unlike the deserted wife was not in apparent occupation or possession. She was there, ostensibly, because she was the wife, and her presence was wholly consistent with the title offered by the husband to the bank." This part of the judgment was being referred to by Russell L.J. in Hodgson when he had said that he did not consider it necessary to pronounce on the decision in Caunce v. Caunce "In that case the occupation of the wife may have been rightly taken to be not her occupation but that of the husband. In so far, however, as some phrases in the judgment might appear to lay down a general proposition that inquiry need not be made of any person on the premises if the proposed vendor

himself appears to be in occupation, I would not accept them." In Hodgson it had been been held by the Court of Appeal that the words "actual occupation" in paragraph (g) were to be given their ordinary meaning, without the gloss suggested by Ungoed-Thomas J. in his judgment in the court below (he had suggested that "in actual occupation" should be treated as "in actual and apparent occupation"). Ormrod L.J. therefore held that the wives were in actual occupation of the land in each case, as did Browne L.J. who added:— "If a wife living with her husband is incapable of being in "actual occupation" she is in a worse position than a deserted wife or a mistress or anyone else who is sharing the occupation of a house and has "rights." Whether in any particular case other people living in a house (for example, children living in the family home) are in "actual occupation" must depend on the facts of each case. It seems to me that today it is unrealistic and anachronistic to talk about a wife's occupation being only a "shadow" of her husband's occupation. In many, perhaps most, cases, the wife has a proprietory interest in the matrimonial home because of her contribution." The House of Lords The bank appealed unsuccessfully to the House of Lords, where Lord Wilberforce [1980] 3 W.L.R. 138 at 141 made the point that:— "the appeals do not, in my understanding, involve any question of matrimonial law, or of the rights of married women or of women as such. Exactly the same issue could arise if the roles of husband and wife were reversed, or if the persons interested in the house were not married to each other." The first question to be decided was whether the wife was a "person in actual occupation" and if so, whether her right as tenant in common in equity was axight protected by paragraph (g). His lordship (at p. 142) recalled that the system of land registration was designed to simplify and to cheapen conveyancing:— "In place of the lengthy and often technical investigation of title to which a purchaser was committed, all he has to do is to consult the register; from any burden not entered in the register, with one exception, he takes free. Above all, the system is designed to free the purchaser from the hazards of notice — real or constructive — which, in the case of unregistered land, involved him in enquiries, often quite elaborate, failing which he might be bound by equities . . . The exception just mentioned consists of "over- riding interests" listed in section 70. As to these, all registered land is stated to be deemed to be subject to such of them as may be subsisting in reference to the land, unless the contrary is expressed in the register. The land is so subject regardless of notice actual or constructive."

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