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Abbey National Building Society v Cann
[1991] 1 AC 56, [1990] 1 All ER 1085, [1990] 2 WLR 832, 60 P & CR 278, [1990] 2 FLR 122, [1990] Fam Law 397, 22 HLR 360, [1990] 17 LS Gaz R 32, [1990] NLJR 477
Court: HL
Judgment Date: circa 1991
Case History
Annotations | Case Name | Citations | Court | Date | Signal |
- | Abbey National Building Society v Cann | [1991] 1 AC 56, [1990] 1 All ER 1085, [1990] 2 WLR 832, 60 P & CR 278, [1990] 2 FLR 122, [1990] Fam Law 397, 22 HLR 360, [1990] 17 LS Gaz R 32, [1990] NLJR 477 | HL | circa 1991 | |
Affirming | Abbey National Building Society v Cann | (1989) 57 P & CR 381, [1989] 2 FLR 265, [1989] Fam Law 314 | CA | circa 1989 |
Cases referring to this case
Annotations: All Cases Court: ALL COURTS
Sort by: Judgment Date (Latest First)
Treatment | Case Name | Citations | Court | Date | Signal |
Considered | State Securities plc v Liquidity Ltd | [2006] All ER (D) 212 (May) | Ch D | 15/05/200 | |
Distinguishe | Johnson v Shaw | [2003] EWCA Civ 894, [2004] 1 P & CR 123, [2003] All ER (D) 79 (Jun) | CA | 06/06/200 | |
Applied | Whale v Viasystems Technograph Ltd | [2002] All ER (D) 457 (Mar) | CA | 27/03/200 | |
Applied | Barclays Bank plc v Zaroovabli | [1997] Ch 321, [1997] 2 All ER 19, [1997] 2 WLR 729 | Ch D | 06/11/199 |
Cases considered by this case
Annotations: All CasesCourt: ALL COURTS
Treatment | Case Name | Citations | Court | Date | Signal |
Overruled | Church of England Building Society v Piskor | [1954] Ch 553, [1954] 2 All ER 85, [1954] 2 WLR 952, 98 Sol Jo 316, 163 Estates Gazette 350 | CA | circa 1954 | |
Approved | Coventry Permanent Economic Building Society v Jones | [1951] 1 All ER 901, [1951] WN 218, [1951] 1 TLR 739 | Ch D | circa 1951 | |
Approved | Connolly Bros Ltd (No 2), Re, Wood v Connolly Bros Ltd | [1912] 2 Ch 25, 81 LJ Ch 517, 19 Mans 259, 106 LT 738, [1911-13] All ER Rep Ext 1207 | CA | circa 1912 |
REGISTRATION OF LAND - REGISTRATION OF TITLE TO LAND - GENERAL EFFECT OF REGISTRATION - OVERRIDING INTERESTS - DESIGNATED OVERRIDING INTERESTS - RIGHTS ACQUIRED IN ACTUAL OCCUPATION OR IN RECEIPT OF RENTS AND PROFITS THEREIN - ACTUAL OCCUPATION - NECESSITY FOR ACTUAL OCCUPATION - ARRIVAL OF FURNITURE PRIOR TO COMPLETION - WHETHER ACTUAL OCCUPATION ESTABLISHED
The appellants lived in a leasehold house purchased as a home for them by the first appellant's son in his own name for £34,000 with the aid of a mortgage of £25,000 provided by the respondent building society, the balance of the purchase price coming from the proceeds of sale of another house purchased by the son for the appellants. Completion of the sale of the previous property and the purchase of the new property took place on 13 August 1984 and simultaneous registration of the son's title to the new property and the building society's charge over it took place on 13 September 1984. Subsequently the son defaulted in paying the mortgage instalments and the building society brought proceedings against the son and the appellants claiming possession of the property. The first appellant contended that by reason of an equitable interest in the previous property and an assurance given to her by her son that she would always have a roof over her head she had acquired, either on or immediately prior to completion an equitable interest in the new property which was an overriding interest and which, by reason of her actual occupation at the date of registration, took priority over the building society's charge under s 70(1)(g) of the Land Registration Act 1925. The judge rejected the appellants' claim and his decision was upheld by the Court of Appeal on the ground that since the first appellant was aware that the balance of the purchase price over and above the amount produced by the sale of the previous property was to be provided by a mortgage of the premises she had impliedly authorised the son to create a charge in favour of the building society which had priority over her interest. The appellants appealed to the House of Lords. Held, although the relevant date for ascertaining the existence of an overriding interest under ss 23(1) and 70(1)(g) of the 1925 Act affecting the estate transferred or created was the date of registration of the transfer or interest created, the relevant date for determining whether an interest in registered land was protected by actual occupation and had priority over the holder of a legal estate by virtue of s 70(1)(g) was the date when the legal estate was transferred or created and not the date when it was registered. Accordingly, a person having a beneficial interest in the property who entered into occupation of it after the creation of a charge but before it was registered could not claim the benefit of s 70(1)(g). Since the appellants were not in actual occupation of the property at the date of completion of the purchase, which was when the building society's charge was created, they were not entitled to claim the benefit of s 70(1)(g). Accordingly, their appeal would be dismissed.
Per curiam. Where as a matter of indulgence a vendor allows a prospective tenant or purchaser to go into property prior to completion in order, for example, to plan decorations or measure for furnishings, such preparatory acts cannot constitute "actual occupation" for the purposes of s 7(1)(g) of the 1925 Act.
