Hypo-Mortgage Services Ltd v Robinson The Times, January 2, 1997
A child in occupation cannot have an overriding interest.
Facts:
The appellant, Robinson, appealed against a mortgage possession order against their home that had been granted to a mortgage lender. Although the house was in the sole legal name of the husband, his wife’s children had occupied the property.
Issues:
The wife appealed on the basis that she had a one half beneficial interest in the property and this was held on trust by her for the children. Under s.70(1)(g) of the Land Registration Act 1925 all registered land was held subject to the overriding interest of a person in actual occupation of the land except where enquiry was made of such person and the rights were not disclosed. Therefore, the equitable interest of someone in actual occupation could override a registered disposition of land, such as the legal charge created by a mortgage. The appellant argued that, as the children had an equitable interest and were in actual occupation, this created an overriding interest which could defeat the mortgagee’s claim.
Held:
The court rejected the wife’s argument. Nourse LJ said that children had no right of occupation of their own but were only in occupation as shadows of their parent. He said that to hold otherwise would be to leave mortgage lenders defenceless, as they would always be frustrated when trying to repossess the property by simple devices such as conferring a token beneficial interest in the property on a child. Section s.70(1)(g) Land Registration Act 1925 could not have been intended to operate this way, as no enquiry could be made of a minor, especially very young children.
Updated 21 March 2026
This article accurately describes the decision in Hypo-Mortgage Services Ltd v Robinson [1997] 2 All ER 882 (CA). The legal principle established — that a child in occupation cannot hold an overriding interest in their own right, being merely a ‘shadow’ of the parent in occupation — remains good law.
Readers should note, however, that the statutory provision discussed, s.70(1)(g) of the Land Registration Act 1925, has been repealed and replaced. The Land Registration Act 2002 now governs overriding interests in registered land. The equivalent provision is found in Schedule 3, paragraph 2 of the 2002 Act, which deals with the overriding status of interests of persons in actual occupation. The underlying principle from this case — that a child cannot independently claim an overriding interest — is understood to remain applicable under the 2002 Act framework, but students should take care to cite and apply the current statutory provisions rather than the 1925 Act when writing about modern land law.
