Kling v Keston Properties Ltd (1985) 49 P & CR 212
Rights of pre-emption and actual occupation.
Facts:
The plaintiff, Kling, occupied a garage in Chelsea owned by the defendants under a licence. He obtained from them a right of first refusal to purchase the lease of the garage. However, the defendants subsequently sold a 99-year lease of the garage to Mrs Aschon. At the time of this grant, the plaintiff’s car was in the garage and was blocked in by Mrs Aschon’s car. The plaintiff’s sought specific performance of the option to buy the lease.
Issues:
The plaintiff claimed an overriding interest under s.70(1)(g) Land Registration Act 1925 as they had an interest and were in actual occupation. The defendants argued that the plaintiff was not in fact in actual occupation of the garage as only his car was parked there. Finally, it was argued that s.59 of the 1925 Act prevented the interest becoming overriding. This provision stated that any interests which were required to be registered under the old Land Charges Act 1972 had to be registered on the register of title to bind a purchaser.
Held:
The plaintiff was entitled to specific performance and was given an underlease of the garage on the same terms as the lease held by Mrs Aschon. The option created an equitable interest in the garage. The plaintiff was still in actual occupation as long as there was some physical evidence of his residence coupled with an intention to return to the property. The presence of his car in the garage was enough. The court rejected the idea that s.59 precluded s.70(1)(g) of the 1925 Act. Accordingly, the plaintiff had an overriding interest which bound Mrs Aschon.
Updated 20 March 2026
This article accurately summarises the facts and decision in Kling v Keston Properties Ltd (1985) 49 P & CR 212. However, readers should note that the statutory framework discussed — specifically s.70(1)(g) of the Land Registration Act 1925 — has been replaced. The Land Registration Act 2002 repealed the 1925 Act and re-enacted the concept of overriding interests in a revised form. Actual occupation as a basis for an overriding interest is now governed by Schedule 3, paragraph 2 of the Land Registration Act 2002 (for registered dispositions) and Schedule 1, paragraph 2 (for first registration). The 2002 Act introduced important qualifications that were not present under the 1925 Act: most notably, a person’s interest will not override a registered disposition if their occupation would not have been obvious on a reasonably careful inspection of the land, and the purchaser had no actual knowledge of the interest. The position on rights of pre-emption has also been clarified: s.115 of the Land Registration Act 2002 provides that a right of pre-emption in relation to registered land has effect from the time of creation as an interest capable of binding successors. The case retains academic and historical value for illustrating the principles of actual occupation and rights of pre-emption, but students must apply the 2002 Act framework when advising on current law.
