The Gazette 1981

GAZETTE

APRIL 1981

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 — of for that matter two persons of the same sex — living in a house in separate or partially shared rooms. Are these cases of apparently consistent occupation, so that the rights of the other person (other than the vendor) can be disregarded? The only solution which is consistent with the Act (s. 70(1) (g)) and with commonsense is to read the paragraph for what it says. Occupation, existing as a fact, may protect rights if the person in occupation has rights . . . I have no difficulty in con- cluding that a spouse, living in a house has an actual occupation capable of conferring protection, as an overriding interest, upon rights of that spouse." Finally, there was the argument that if the overriding interest sought to be protected was, under the general law, only binding on a purchaser by virtue of notice, then, under s.74 of the Land Registration Act, 1925, it could not be binding on a purchaser of registered land. Section 74 (in terms which differ rather widely from the otherwise equivalent s.92 of our Registration of Title Act, 1964) provides:— Subject to the provisions of this Act as to settled land, neither the registrar nor any person dealing with a registered estate or charge shall be affected with notice of a trust express, implied or constructive, and reference to trusts shall, so far as possible, be excluded from the register. If this argument were correct, then, according to Lord Wilberforce, Hodgson v. Marks must have been wrongly decided (but it is submitted that this is not necessarily so, since it is clear that for Russell LJ . 's decision notice by Marks of Mrs. Hodgson's occupation was not essential?). Lord Wilberforce, however, held (at p. 146) that the purpose of s.74 was to make clear, as he had already explained "that the doctrine of notice has no application to registered conveyancing, and accordingly to estab- lish, as an administration measure, that entries may not be made in the register which would only be appropriate if that doctrine were applicable. It cannot have the effect of cutting down the general application of section 70(1)." Lord Scarman (at p. 149) also agreed that overriding interests took effect under s.70(l) whether or not a purchaser had notice of them:— A breach of the curtain principle?

It had been said that the purpose and effect of paragraph (g) was to make applicable to registered land the same rule as previously had been held to apply to unregistered land: see per Lord Denning in the Ainsworth case. Lord Wilberforce adhered to this, but did not accept the sub- mission that, in applying paragraph (g), the House of Lords should limit the application of the paragraph in the light of the doctrine of notice, since this would run counter to the whole purpose of the Land Registration Act, 1925. In the case of unregistered land, the pur- chaser's obligation depended on what he had notice of - notice actual or constructive. In the case of registered land, it was the fact of occupation that mattered. If there was actual occupation, and the occupier had rights, the purchaser took subject to them. Whilst Lord Wilberforce considered that the words "actual occupation" were ordinary words of plain English, and should in his opinion, be interpreted as such, he traced their emergence, in this context, to the judg- ment of Lord Loughborough L.C. in Taylor v. Stibbert (1794) 2 Ves. Jun. 437 (in a passage at 439-440 where the words in fact used were "actual possession"). Actual occupation required presence on the land, physical presence, not some entitlement in law. In these cases there was physical presence by the wives and it would require some special doctrine of law to avoid the result that each wife was in occupation. Three arguments had been used for a contrary conclusion:— (1) If the vendor (or mortgagor) were in occupation, that was enough to prevent the application of the paragraph, and this was so whether the vendor was the spouse of the occupier or not. Lord Wilberforce, however, agreed with the disapproval by Russell L J . in Hodgson v. Marks Ch. 892, 934 of the obser- vations supporting this argument in Caunce v. Caunce. (2) The suggestion that the wife's "occupation was nothing but a shadow of the husband's," a version of the doctrine of unity of husband and wife. Lord Wilberforce found the argument flowing from this expression, which was used by Templeman J., in Bird v. Syme-Thomson (at p. 1030), to be "heavily obsolete."; (3) The appellant's main and final position was 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 was unacceptable:— "Consistency, or inconsistency, involves the absence or presence, of an independent right to occupy, though 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 the husband's rights until one knows that rights she has? And if she has rights, why, just because she is a wife (or in

"I do not, therefore, read the Act of 1925 as requiring the courts to give the words "actual occupation" in section 70(1) (g) the special meaning for which the appellants contend, namely an occupation, which by its nature necessarily puts a

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