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GAZETTE
APRIL 1981
(Continued from p. 107)
would-be purchaser (or mortgagee) upon notice of a
claim adverse to the registered owner. On the con-
trary, I expect to find . . . as I do find . . . that the
statute has substituted a plain factual situation for
the uncertainties of notice, actual or constructive, as
the determinant of an overriding interest."
The implications for this country?
It is a tribute to the adaptability and resourcefulness of
the English bench that, in
Williams & Glyn,
it has, by
judicial means, secured for wives almost that degree of
protection obtained for them in this country by our
Family Home Protection Act. Of course, the decision
falls short by being unable to protect that class of married
women, dwindling but perhaps most deserving of protection
— the "bare" wives whose contributions are invaluable in
everything but economic terms.
It would, however, be rash of the Irish practitioner to
assume that, since the Oireachtas has, to say the least of
it, forestalled the House of Lords by its statutory
protection of the family home against unilateral
alienation, these English decisions are of little more than
academic interest here. This developing jurispurdence
does more than defend occupying spouses, particularly
wives. Mrs. Hodgson, it will be recalled, was not related
at all to the lodger who gulled her into transferring her
house to him. Furthermore, one aspect of the decisions
which seems so far to have escaped the attention of com-
mentators is the possible application of the principle
underlying the decisions to property other than dwelling-
houses and family homes. There must be thousands of
small businesses and farms in this country and no doubt
in England which are legally owned by one spouse but to
the purchase of which the other spouse has contributed.
In many such cases the latter is as clearly "in actual
occupation" as the former. Moreover, where the husband
(supposing him to be the legal owner) is an invalid, or an
idler or drunkard, or has another job, the work of looking
after such enterprises will devolve upon her, and she may
indeed bp the only one of the two "in actual occupation."
Whilst the prospect that such an occupying spouse may
have an "overriding interest" in such non-residential
property is' not touched on in any of the judgments or
speeches, this result would seem to follow, in principle,
from the decision. It would not be a distortion, it is sub-
mitted, to suggest that the previously quoted remarks of
Lord Wilberforce, to the effect that the appeals did not
involve any question of matrimonial law, could be
invoked to support the submission that
Williams & Glyn
is not limited territorially to the matrimonial home
(prescinding for the moment from the fact that
Hodgson
was not a matrimonial case at all). Except for the fact that
wives are known to contribute more frequently to the ac-
quisition of the home, there is no difference in legal
principle between a home and a business or farm. The de-
cision represents a further step in the acquisition by wives
of a legal personality independent from that of their
husbands and could not have intended to give the
character of a sanctuary to homes, matrimonial or
otherwise.
Disadvantages
Perhaps the chief drawback of the decisions is a disad
vantage associated with all judicial lawmaking: its
retrospective operation. When lenders in future seek
possession in respect of property mortgaged before the
Family Home Protection Act, 1976, came into force on
July 12, 1976, equitable claims from borrowers' wives
are sure to be made. Purchasers, as distinct from lenders,
may be thought to be in an enviable position, since they,
and not vendors subject to equitable claims, will be in
occupation once a sale is closed, as it should be, with
vacant possession. However, it has already been held, in
London and Cheshire Insurance Co. Ltd. v. Laplagrene
Property Co. Ltd.
[1971] Ch. 499, that claimants in
actual occupation at the relevant time (that of
registration) do not lose their claims if they go out of
occupation subsequently.
A further pitfall has become more clearly established
since
Williams <fc Glyn.
In
Hodgson,
Russell, LJ ., under
reservation of his position that occupiers could enforce
their rights independently of notice, was at pains to show
that Marks, the purchaser, had notice of Mrs. Hodgson's
occupation. Now, however, it is clear that occupiers'
rights are not outside the registration system, even in the
sense of being dependant for their effectiveness on notice.
Whilst observance of the precaution of obtaining clear
possession before completion will obviate claims in most
cases, it is bound to occur that an occasional purchaser
will be ousted in circumstances of great hardship. For
instance an occupier with an equitable claim will not
cease to be "in actual occupation" because of a
temporary, though extended, absence from the premises.
Finally, spouses, chiefly wiyes, are not, it is submitted,
the only members of the family to benefit from the more
recent of the decisions. In
Caunce
v.
Caunce
[ 1969] 1 All
E.R. 722, at 728, the legal position of occupying wives
vis-a-vis purchasers was equated by Stamp J. to that of
other persons resident, consistently with the vendor's title,
on the premises, such as
"the vendor's father, his uncle Harry, or his aunt
Matilda, any of whom, be it observed, might have
contributed money towards the purchase of the
property."
Not the least worrying feature of the decision is, not that
uncles and aunts have (with the reversal of
Caunce
v.
Caunce)
joined the vendor's wife to make up a new class
of overriding occupiers, but that there seems to be no
reason why the
children
in residence should not be
included in that class. If, for example, the property had
been purchased with funds belonging to a minor, the
purchaser's position would be immeasurably more
difficult than if he had to contend with a claim by any
other member of that class. After all, a considerable point
in favour of the decision is that paragraph (g), in words
that were to be copied almost verbatim by its Irish
equivalent, provides that the rights it confers are not to
apply "Where enquiry is made . . . and the rights are not
disclosed." The difficulties posed by the occasional need
to obtain the consent of an under-age spouse under the
unamended Family Home Protection Act pale into insig-
nificance compared with the possible consequences of any
extension of the
Williams & Glyn
principle to minors in
actual occupation.
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