Published: Fri, 12 Oct 2018
National Provincial Bank v Ainsworth  A.C. 1175
LAND LAW – REGISTERED LAND – OVERRIDING INTERESTS – ACTUAL OCCUPATION
A man, his wife and children were occupants of a piece of property, though the defendant was the sole registered proprietor. The property was later used to secure an overdraft for the his company, and the bank which granted the overdraft registered a charge against the house accordingly. However, prior to arrangement with the bank, the man had abandoned the property, along with his family, and the wife was permitted to continue living there rent free as part of the separation agreement. The bank sought possession of the property, which the wife resisted.
Under the Land Registration Act 2002, Schedule 3 (and its predecessors), certain interests are ‘overriding’, meaning that even if they are not registered they can be asserted against those with registered interests in the property. One of these overriding interests is any interest belonging to a person in actual occupation of the property (para. 2).
The issue in this case was whether the bank could claim possession of the house despite the continued occupation there of the defendant’s family. In particular, the court was asked to determine what sort of interest needed to be coupled with the actual occupation.
The House of Lords held the wife had no overriding interest, and so the bank could take possession of the property.
The House of Lords held that the necessary interest had to be proprietary. They held that the separation agreement permitting the wife to remain in the house was a mere license, and licenses are a personal, non-proprietary right. As the wife did not have a proprietary interest in the house, she had no interest which could amount to an overriding interest. She could not, therefore, resist possession.
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