Hypo-Mortgage Services Ltd v Robinson [1997] 2 FLR 71
The presence of young children in their parents’ home did not establish actual occupation protecting their alleged beneficial interests against the mortgage lender.
Facts:
Michael Robinson sought leave to appeal against a mortgage possession order concerning the family home. His wife’s two existing children were living there with their mother and Mr Robinson when the mortgage was executed on 14 September 1990.
Issues:
Mr Robinson relied on an oral agreement that his wife’s one half beneficial interest in the property would be held on trust for her two existing children and any future children of the marriage. 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. Mr Robinson 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.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Held:
The Court of Appeal rejected Mr Robinson’s argument. Nourse LJ did not decide whether the oral agreement effectively transferred beneficial interests to the children; he assumed that it had done so for the purposes of the application. He held that these minor 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 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.
