The house was registered in the name of Mr Boland alone, making him its sole legal owner. But Mrs Boland had acquired a beneficial interest in it – ie Mr Boland held it on trust for himself and. Mr Boland, however, had mortgaged the house to Williams & Glyn’s Bank . When Mr Boland couldn’t pay off the loan, and the bank wanted to repossess, the question was whether Mrs Boland could object that her interest prevented them from doing so. HL held that she could. HL held that Mrs. Boland had an overriding interest because (1) she was in actual occupation and (2) a minor, registrable, unregistered interest COULD be an overriding interest. NB, S.70(1)(g) relates to an interest by someone in actual occupation being overriding, except where reasonable inquiries have been made etc.
Lord Wilberforce: “actual occupation”= physical occupation. He rejects the arguments that there can be only one occupier (factually incorrect), that husbands and wives cannot have separate occupations (Wilberforce calls this “obsolete” i.e. anachronistic) and finally that where the wife’s occupation depends on her husband’s title, she cannot be in actual occupation (this would be to disregard all rights of people cohabiting where the house is in one person’s name). He rejects the argument that, because under s.74 notices of trust are excluded from the register, the types of interest recognised by the 1925 LRA (legal estate, minor/equitable interest and overriding interest) are mutually exclusive. He says the point of that section is purely an administrative one: that the doctrine of notice has no effect on registered conveyancing. Its effect is not to prevent s.70(1)(g) from applying to equitable/minor interests. The interest here could be both minor AND overriding.
Lord Scarman: S.70(1)(g) is intended to “meet the needs of social justice” and this is clearly its effect. Therefore it must apply in cases like this. Bankers and conveyancers must adapt to fit the needs of social justice, not vice versa. The wife was in actual occupation (literal meaning), had an interest, and this interest could have been discovered by the bank, but it made no enquiry.