National Provincial Bank Ltd v Hastings Car Mart Ltd (National Provincial Bank Ltd v Ainsworth)

A spouse’s right to cohabitation and support is personal. It creates no proprietary interest in a particular matrimonial home, and desertion does not convert it into one.

A right capable of affecting land must be definable, identifiable by third parties, capable of assumption by them, and sufficiently permanent or stable. A deserted spouse’s fluctuating right of occupation lacks those qualities. Neither notice nor actual occupation can make a purely personal right proprietary.

Section 70(1)(g) of the Land Registration Act 1925 protects rights in land held by persons in actual occupation. It does not transform personal rights into overriding interests. A registered mortgagee therefore takes free of a deserted spouse’s merely personal claim.

National Provincial Bank Ltd v Hastings Car Mart Ltd (National Provincial Bank Ltd v Ainsworth) concerned a registered matrimonial home owned by the respondent wife’s husband. He deserted her and later transferred and mortgaged the property. The Bank’s mortgage arose after the desertion, but the Bank had no actual knowledge of it and made no inquiry of the wife, who remained in occupation with the children.

Cross J ordered possession for the Bank. The Court of Appeal, by a majority, reversed that decision on the possession issue and held that the wife could remain temporarily: [1964] 2 W.L.R. 757. A separate order under section 2(1) of the Matrimonial Causes (Property and Maintenance) Act 1958 had set aside the husband’s transfer to a company, but did not affect the Bank’s charge.

The central issue was whether the wife’s occupation and marital rights constituted an overriding interest under section 70(1)(g) of the Land Registration Act 1925.

1. Appeal allowed unanimously. Lord Hodson, Lord Cohen, Lord Guest, Lord Upjohn and Lord Wilberforce concluded that the wife had no overriding interest binding the Bank. The Court of Appeal’s order on possession was reversed, Cross J’s order was restored, and the cause was remitted for an order giving the Bank possession within 28 days.

2. Per Lord Hodson, Lord Upjohn and Lord Wilberforce, a wife’s rights arising from marriage are rights to cohabitation and support. They do not confer an estate or interest in any particular home. Desertion neither enlarges those rights nor converts them into rights affecting land. The court may protect a wife against her husband through discretionary remedies, but her underlying claim remains personal and cannot bind a genuine successor in title.

3. Lord Wilberforce stated that a right admitted as property must be definable, identifiable by third parties, capable of assumption by third parties, and possess some permanence or stability. A deserted wife’s right of occupation depends upon changing matrimonial circumstances, conduct, alternative accommodation and discretionary relief. It has none of the necessary proprietary characteristics.

4. The House rejected the doctrine that a deserted wife possessed a licence coupled with an equity binding successors with notice. A mere equity, unconnected with an equitable estate or interest in land, cannot bind purchasers. Notice identifies an existing proprietary burden; it does not create one.

5. Bendall v McWhirter [1952] 2 Q.B. 466 was overruled. The reasoning that the wife’s right constituted a clog, fetter or equity affecting the husband’s land could not be supported. The dependent decisions in Street v Denham [1954] 1 W.L.R. 624, Jess B Woodcock & Sons Ltd v Hobbs [1955] 1 W.L.R. 152 and Churcher v Street [1959] Ch. 251 could not stand. Conversely, Thompson v Earthy [1951] 2 K.B. 596 was affirmed as correct.

6. Section 17 of the Married Women’s Property Act 1882 provides a summary and discretionary procedure between spouses. It does not vary established property rights, create new substantive rights, or confer rights against successors in title. Contractual and expenditure-based licences supplied no useful analogy, and their wider proprietary effect was left open.

7. Section 70(1)(g) of the Land Registration Act 1925 protects proprietary rights held by persons in actual occupation; it does not elevate personal claims into overriding interests. Lord Hodson and Lord Cohen assumed in the wife’s favour that she was in actual occupation. Lord Upjohn treated her as factually occupying the home, while Lord Wilberforce expressed no conclusion on that point. The appeal failed for want of any qualifying right in the land.

1. House of Lords: Allowed the Bank’s appeal unanimously. The Court of Appeal’s possession order was reversed, Cross J’s possession order was restored, and the cause was remitted for an order requiring possession within 28 days.

2. Court of Appeal: By a majority, reversed Cross J on the possession issue and permitted the wife to remain temporarily, subject to payment and liberty to apply: [1964] 2 W.L.R. 757. It affirmed Cross J’s refusal to vary his separate order concerning the effect of the Divorce Division proceedings.

3. Chancery Division: Cross J held that the Bank, as registered mortgagee, was entitled to possession. He later held that the Divorce Division’s order setting aside the husband’s transfer did not affect the Bank’s legal charge.

4. Divorce Division: Acting under section 2(1) of the Matrimonial Causes (Property and Maintenance) Act 1958, set aside the husband’s transfer to the company as a disposition intended to defeat the wife’s maintenance claim.