Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355; [1999] 2 WLR 667
Actual occupation applied to the whole land.
Facts:
The appellants, Ferrishurst, occupied offices on land owned by the respondents, Wallcite, under a sub-underlease that had been granted before Wallcite bought the land. This sub-underlease contained an option to purchase the offices and an adjoining garage which Ferrishurst did not occupy. Wallcite refused to grant the option. Ferrishurst claimed for specific performance of the option but failed. They then appealed.
Issues:
Ferrishurst argued that the option gave them an interest in both the offices and the garage which was overriding under s.70(1)(g) Land Registration Act 1925. They argued that this interest bound Wallcite. Under the 1925 Act an overriding interest included the interest of a person in actual occupation of the land. However, in Ashburn Anstalt v WJ Arnold & Co [1989] Ch1 the Court of Appeal had held that an occupier could only claim an overriding interest over land that it actually occupied. As Ferrishurst did not occupy the garage they could not claim an overriding interest in respect of it. Ferrishurst claimed this case was inconsistent with later House of Lords decisions.
Held:
The court allowed the appeal. Looking at the later House of Lords decisions, the court held that the wording of the 1925 Act meant that overriding interests of occupiers were not confined to the land which was actually occupied. The occupier could enforce an overriding interest in any part of the land which comprised the registered disposition, including land he did not actually occupy. Consequently, Ferrishurst could enforce the option in respect of the garage even if they did not occupy it.
Updated 21 March 2026
This case note accurately summarises the Court of Appeal’s decision in Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355. However, readers should be aware of an important development that significantly affects the ongoing relevance of this decision. The Land Registration Act 1925, including s.70(1)(g) on which the case turned, was repealed and replaced by the Land Registration Act 2002. Schedule 3, paragraph 2 of the 2002 Act now governs overriding interests of persons in actual occupation. Crucially, the 2002 Act expressly qualified the position reached in Ferrishurst: an interest of a person in actual occupation is now only overriding in respect of land of which that person is in actual occupation (subject to further conditions). This effectively reverses the broad principle established in Ferrishurst for all dispositions registered under the 2002 Act. The case therefore retains historical and academic importance — particularly for understanding the development of the law — but its core holding no longer represents the current legal position. Students should apply Schedule 3, paragraph 2 of the Land Registration Act 2002 to any problem questions involving registered land.
