A family home in Xs’ names was occupied by Xs and D. Xs took out a loan, secured on the house, with D; Xs defaulted on the repayments. Possession proceedings began. D claimed to have overriding interests; the mortgage company claimed to have overreached them. CA accepted that D had a beneficial interest (she had paid towards to the cost of the house) and she was in actual occupation (s.70(1)(g)). However, CA held that Trusts of Land and Appointment of Trustees Act 1996 had not altered the common law and hence Flegg applied, so that D’s interest had been overreached.
Walker LJ: The current law has been unaffected by the 1996 act: “The 1996 Act contains nothing to exclude the essential overreaching provision contained in section 2(1)(ii) of the Law of Property Act 1925. On the contrary, that provision is amended so as to meet the new terminology of the 1996 Act (see section 25(1) and Schedule 3 paragraph 4(1))”. NB he said that article 8 did not apply because at this time the HRA 1998 was not yet in force and therefore ECHR couldn’t yet be applied in English courts. Therefore this case does NOT mean that article 8 (right to private life, family and home) could not apply in the future.