The Artist’s Wife 1933 Henry Lamb 1883-1960 Presented by the Trustees of the Chantrey Bequest 1934 http://www.tate.org.uk/art/work/N04749

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.”


In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”