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Chhokar v Chhokar [1984] FLR 313; [1984] Fam Law 269

Temporary absence can still amount to actual occupation.

Facts:

The parties, Mr and Mrs Chhokar lived in a house bought in the husband’s sole name. They both contributed to its purchase and upkeep. The marriage fell apart and the husband arranged to sell the house without telling his wife. The wife temporarily left home to stay in hospital. Upon her return, she was excluded from the property so she was not physically in occupation when the purchaser was registered as the new owner. The wife claimed an overriding interest in the property.

Issues:

Under Schedule 3 paragraph 2 of the Land Registration Act 2002 a registered disposition of property can be overridden by the interest of a person who was in actual occupation at the time of the disposition, unless enquiry was made of the person with the interest and they failed to disclose the right when they could reasonably be expected to, or the interest would not have been obvious upon a reasonably careful inspection of the land at the time of the disposition and the purchaser had no actual knowledge of the interest at that time. The wife contended that she had been in occupation the whole time despite her temporary absence.

Held:

Mrs Chhokar was in actual occupation. Her furniture was still at the property, and her occupation was not lost by her temporary absence. However, the purchaser was given credit for having paid the mortgage, and the court declared the wife and the purchaser to be tenants in common in equity in equal shares subject to this credit.


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