Boland case

Mr Michael Boland and Mrs Julia Sheila Boland lived on Ridge Park, Beddington,Surrey. Mr Boland, registered owner of the house, borrowed money from the bank for his building company, Epsom Contractors Ltd. Mr Boland failed to repay, and the bank sought possession. Mrs Boland argued that because she made substantial financial contributions to acquiring the home, she should be able to stay. The bank argued it did not qualify as a property right, basing its argument on the doctrine of conversion, and she should only get a share of any money made by her husband from the land, not a right enabling her to use it. Second, even if there was a property right, the bank’s defence was it registered its charge, and Mrs Boland’s right was not registered. The lack of registration defence does not work if the party claiming the unregistered right is in actual occupation. Then, that person has an overriding interest. But the bank argued that if she cohabited with her husband, she should not count as being in actual occupation because a bank’s investigation would not alert it to her having a property right in the land. It would be no surprise to find a shared occupancy.

High Court

Templeman J at first instance, said that Mrs Boland was not in ‘actual occupation’ within the Act's meaning, because her occupation was merely an accompaniment to her husband's. Therefore her claim failed. Mrs Boland appealed.

Court of Appeal

The Court of Appeal held that Mrs Boland succeeded in her claim. She was in actual occupation under section 70(1)(g) of the Land Registration Act 1925 and that therefore she had an overriding interest in the property.^[1]The bank appealed contending that the wife's interest could only be considered a minor interest and that she could not be considered to be "in actual occupation". Lord Denning MR, giving the leading judgment, remarked that spouses had been ‘stripped bare’ by the House of Lord's in National Provincial Bank Ltd v Ainsworth.^[2] Then in Gissing v Gissing^[3]it was decided that contributions to the purchase price mean a trust arises. He went on to refute the view of Stamp J in Caunce v Caunce^[4] and Templeman J at first instance, that a wife could certainly be in ‘actual occupation’ even though her husband owned an occupied the property. The key parts of his judgment were as follows.^[5]

“

Actual occupation The wife clearly has rights. The only question is whether she is herself a person "in actual occupation of the land." In construing those words, "actual occupation", it is no use looking at the meaning of occupation in other branches of the law, such as "rateable occupation" or occupation for the purposes of occupier's liability. I would only say that occupation need not be in one single person. Two persons can be in actual occupation, by themselves jointly or each of them severally.