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GAZETTE
APRIL 1981
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
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."
A breach of the curtain principle?
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:—
"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
(Continued on p. 109)
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