The case concerned whether a person was "in actual occupation" of registered land pursuant to the Land Registration Act 2002 and so had an overriding interest which would defeat a lender's claim for possession.
Both parties to the litigation were innocent parties duped by a third party, but which party was going to miss out; either the claimant who suffered from Korsakoff's Psychosis, a severe medical condition which affected her understanding, memory, insight, cognitive faculties and judgment or the defendant, a lending institution.
The claimant had been swindled into parting with her property and the lender had granted a charge over the property. The inspection of the property by the lender was a "drive-by" inspection by a surveyor, who noted signs of occupation.
As the Court of Appeal noted, some of the facts pointed to Ms Bustard's continuing actual occupation: it was her furnished home and the only place to which she genuinely wanted to return; she continued to visit the property because she still considered it her home; those who had taken responsibility for her finances regularly paid the bills. On the other hand when the lender's charge was taken she had been in a residential home for over a year; she was incapable of living safely in the property and her visits to the property were brief and supervised.
The court decided that the first instance decision that Ms Bustard was a person in actual occupation should not be disturbed. It was not a mere fleeting presence. There was a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere, and of a persistent intention to return home when possible, as manifested by her regular visits to the property.
The case provides further meaning to the expression "in actual occupation" although obviously the facts of this case were unusual and such a situation is likely to be rare in practice.
Link Lending Limited v Ms Susan Bustard[2010] EWCA Civ 424
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