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GAZETTE
APRIL 1981
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
106
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."