Akhtar v Hussain

Where a co-owner occupies jointly owned property, any occupation rent payable to the other co-owner must reflect the occupying co-owner’s own beneficial share. The court must therefore identify the proper rental figure for the property and make an appropriate allowance for that share. In modest-value litigation, a proportionate approach should be taken to proving the rental figure. A party who participates in the valuation debate and is offered an opportunity to make further submissions cannot generally rely on technical arguments about the evidential burden for the first time on appeal. An appellate court will also decline to investigate a new argument not raised below where the other party has had no fair opportunity to respond.

The parties were joint tenants of a former council property purchased in 1993. The claimant left the property in 1997, while the defendant continued to occupy it. The Bradford County Court rejected the defendant’s case that the claimant had surrendered or lost her beneficial interest and held that each party owned 50 per cent.

The trial judge postponed sale until the defendant’s youngest son reached 18 and ordered the defendant to pay occupation rent of £350 per calendar month from 1 January 2012 until sale. The defendant appealed only against the occupation-rent order. The central issues were whether the figure should reflect his 50 per cent ownership, whether the claimant had proved the rental figure, and whether the court should entertain a new argument concerning mortgage interest.

1. Appeal partly allowed. The occupation rent was reduced from £350 to £175 per calendar month, with the order otherwise upheld.
2. The trial judge had evidently assessed £350 as the approximate total rental value of the property. He had failed to discount that figure to reflect the defendant’s 50 per cent beneficial ownership. The defendant was therefore liable for occupation rent referable only to the claimant’s half share.
3. The challenge based on lack of evidence failed. The property was of modest value, and a proportionate approach was appropriate both to the litigation and to establishing the rental figure. The parties had debated the issue before the judge. The defendant’s counsel had proposed a rental range, the claimant’s representatives had obtained further information, and the judge had invited written submissions on his provisional figure. In those circumstances, the defendant could not remain inactive and rely on technical arguments about the burden of proof on appeal.
4. The court declined to consider the further argument that no occupation rent should be payable because the defendant alone paid the mortgage interest. The point had not been raised in the written argument or before the judge granting permission, and the claimant had not had a fair opportunity to address it.

The appeal was accordingly allowed only to substitute £175 per calendar month for the occupation-rent figure.

• Court of Appeal (Civil Division): Appeal from the Bradford County Court was allowed in part. The occupation rent was reduced to £175 per calendar month and was otherwise dismissed.
• Bradford County Court: HHJ Spencer QC ordered occupation rent of £350 per calendar month from 1 January 2012 until sale, while postponing sale until the defendant’s youngest son reached 18.