William’s & Glyn’s Bank Ltd v Boland (Williams & Glyn’s Bank Ltd v Brown)

Under section 70(1)(g) of the Land Registration Act 1925, a person with rights in registered land who is physically present there is in actual occupation. The occupation need not appear inconsistent with the registered proprietor’s title. Actual or constructive notice has no part in this statutory inquiry.

An equitable interest under a trust for sale, although ordinarily a minor interest, becomes an overriding interest when coupled with actual occupation. A registered mortgagee therefore takes subject to the occupying beneficiary’s rights unless it makes enquiry of that person and the rights are not disclosed.

These conjoined appeals concerned homes registered solely in the husbands’ names. Each wife had contributed substantially to the purchase price or mortgage and was therefore an equitable tenant in common. Each husband later mortgaged the home to the appellant bank, which made no enquiry of the wife. After default, the bank sought possession.

The High Court in the Boland proceedings and the Dartford County Court in the Brown proceedings ordered possession. The Court of Appeal reversed those orders in [1979] Ch. 309. The bank appealed. The common issue was whether each wife’s beneficial interest, coupled with her occupation, was an overriding interest under section 70(1)(g) of the Land Registration Act 1925 binding the mortgagee.

1. The bank’s appeals were dismissed unanimously. Lord Wilberforce delivered the leading speech. Viscount Dilhorne, Lord Salmon and Lord Roskill expressly agreed with his reasons, and Lord Scarman reached the same conclusion. Each wife’s beneficial interest bound the bank, so no possession order could be made in either case.
2. Per Lord Wilberforce, section 70(1)(g) of the Land Registration Act 1925 uses ordinary words. “Actual occupation” requires physical presence, rather than a legal entitlement, adverse possession or occupation apparently inconsistent with the registered proprietor’s title. The registered proprietor’s occupation does not exclude another person’s concurrent occupation. A spouse living in the home may therefore be in actual occupation in her own right.
3. Per Lord Wilberforce and Lord Scarman, registered conveyancing substitutes the fact of occupation for the uncertainties of actual or constructive notice. If a person is in actual occupation and has rights in the land, a purchaser or mortgagee takes subject to those rights, subject to the statutory exception where enquiry is made and the rights are not disclosed. No further element derived from the doctrine of notice is material.
4. Per Lord Wilberforce, an equitable co-owner’s interest under a trust for sale is ordinarily a minor interest. Actual occupation may nevertheless give that interest overriding status. The categories of minor and overriding interests remain distinct, but the association of the equitable right with actual occupation falls within section 70(1)(g). Section 74 does not cut down that protection; it excludes the doctrine of notice from registered conveyancing.
5. On Mr Boland’s separate reliance on section 36 of the Administration of Justice Act 1970, Lord Wilberforce held that the judge had properly refused relief because Mr Boland produced no material evidence of an ability to discharge or refinance the substantial debt. The Court of Appeal had no proper basis to interfere. This did not alter the final result because Mrs Boland’s overriding interest independently defeated the bank’s possession claim.
6. Lord Roskill added that the Court of Appeal’s statement that the wives’ interests were incapable of being overreached because each property had only one trustee should not be treated as approved. Section 49(2) of the Land Registration Act 1925 had not been considered when that statement was made.

1. House of Lords: Dismissed the bank’s conjoined appeals and affirmed the Court of Appeal’s order. The bank was ordered to pay the respondents’ costs.
2. Court of Appeal (Civil Division): In [1979] Ch. 309, reversed the possession orders made below. Its conclusion that the wives’ overriding interests defeated possession was affirmed, although its treatment of Mr Boland’s section 36 argument and one statement about overreaching were not approved.
3. High Court and Dartford County Court: The High Court in the Boland proceedings and the Dartford County Court in the Brown proceedings each made an order for possession in favour of the bank.