D1 and D2 bought a semi-derelict house in only D1’s name. A family trust fund paid for D1’s house. D1 took out a mortgage from P without telling D2. D2 made no financial contribution. D1 deserted D2 and, failing payments, P sought possession of the house. CA found for D2, saying that a semi-derelict house IS capable of actual occupation and that the constant presence of D2’s agents (in this case builders) = actual occupation. Builders were as much D2’s agents as D1’s. CA held that the relevant date for determining whether overriding interest/disposition has priority is the date of execution, NOT of registration. Here, D1 mortgaged to P AFTER the overriding interest had been executed i.e. actual occupation had begun, and therefore P’s mortgage was subject to OI.
Nicholls LJ: The everyday meaning given to “actual occupation” by Wilberforce in Williams’ and Glyn’s Bank extends to occupying incomplete houses. I can occupy without “inhabiting”, and this extends to agents e.g. residential caretaker.
Mustill LJ (dissenting): Nicholls LJ is pushing the ordinary meaning of “actual occupation” too far.
