Kling v Keston Properties Ltd (1983) 49 P & CR 212
Rights of pre-emption and actual occupation.
Facts
Kling occupied a garage in Chelsea owned by Keston Properties under a licence. He obtained a right of first refusal to purchase a long lease of the garage. The company subsequently granted a 99-year lease to Mrs Aschon. At the relevant time, Kling’s wife’s car was in the garage and could not be driven out because the entrance was blocked. Kling sought specific performance of his right to buy the lease.
Issues
Kling claimed an overriding interest under section 70(1)(g) of the Land Registration Act 1925. He argued that he had an interest in the garage and was in actual occupation of it. The defendants disputed actual occupation because Kling himself was not physically present. They also argued that section 59 of the Act prevented his unregistered interest from overriding the registered lease.
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Decision
Kling was entitled to specific performance and an underlease on the same terms as the lease held by Mrs Aschon. His option to acquire the lease created an equitable interest, and his actual occupation protected that interest under section 70(1)(g).
Vinelott J treated Kling’s use of the garage to keep a car as actual occupation. He considered that the result would probably have been the same even without the car being trapped: using the garage in the ordinary course for the purpose allowed by the licence could amount to continuous occupation, although the car was not necessarily there at every moment. The question concerned occupation appropriate to a garage, not residence in it.
The court rejected the argument that section 59 prevented protection under section 70(1)(g). Kling’s overriding interest therefore bound Mrs Aschon.
