‘Persons in actual occupation’, ‘overriding interests’, and the repossession of two matrimonial homes (see also Williams & Glyn’s Bank Ltd v Brown in this hearing) from defaulting husbands, gave the wives involved, their first real chance of preventing injustice through the exercise of equitable rights.
The aim of this appeal hearing was to establish whether actual occupation of land (or property therein), was considerable enough to constitute an overriding interest, both under repossession of the land, or through the proceeds of sale.
The archaic history behind property law is sadly one that until the decade prior to this appeal, denied women the fundamental right to declare equitable interest in the marital home they both shared, and increasingly invested in.
On this occasion, there were two similar matters involving the indiscretions of the men, who, while acting under individually assigned companies, took it upon themselves to remortgage the family home in order to expand their business interests.
While this may not seem particularly unusual, what removed them from average expectation was that in both instances, the appellants held sole legal title to the properties, and withheld knowledge from their spouses that the additional charges had been agreed with the lenders.
In Boland, the husband had chosen to borrow in order to secure storage space for his construction partnership, while in Brown, the objective was that of additional investment into a developing film production company.
Both of these men used the same bank, and on both occasions, the bank themselves failed to make adequate enquiries as to who else shared the homes, and to what extent their interests might affect the bank’s ability to repossess under default.
When both parties became unable to meet the increased repayments, separate proceedings were started against them for recovery of the capital; at which point, the judges awarded in favour of the bank, before the appellants sought relief on grounds that the wives were unwitting casualties of the contractual arrangements between the bank and businessmen; and that on consideration of their collective financial contributions to the properties, the bank had no footing upon which to seek repossession without court order support.
With laboured consideration of the changes in statute, and the arguments presented against the rights of the women, it was unanimously found that despite previously (and outmoded) held views of the roles women play within property ownership, the world was now a very different place, and that without the enduring commitment of hardworking wives and mothers, it was often impossible for many homes to remain free of reclaim.
Furthermore, the bank in the former case had every opportunity to sell the storage space for a considerable sum, and yet opted to sell for a figure grossly below market value, before trying in vain to convert the mortgagees home into recoverable assets, while overlooking its own professional obligation to observe lending policy and make sufficiently exhaustive enquiries at the outset.
Hence the court upheld the appeal, while reminding the parties that:
“Once it is found that a wife is in actual occupation, then it is clear that in the case of registered land, a purchaser or lender would be well advised to make inquiry of the wife.”