Abbey National Building Society v Cann [1991]

Also considered meaning of ‘actual occupation’.
Mr C obtained mortgage to purchase house.
Stated that it was for his sole occupation but
actually intended it to be for mother.
At time of completion, mother on holiday, but a few
minutes before completion mother’s furniture was moved into house.
Mr C defaulted on payments and building society brought
action for possession.
Mother argued she had equitable interest in house, for
various reasons such as son’s assurance to her that she would always have roof
over her head.
She argued this interest was overriding under
s70(1)(g) by virtue of her actual occupation.
House of Lords held that as mother was well aware that
there was shortfall in meeting purchase price, she had impliedly authorised her
son to obtain the charge.
This precluded her from relying on any interest as
prevailing over that of building society.
In any event, the mother was not in actual occupation.
House of Lords recognised that ‘occupation’ may have
different connotations according to nature and purpose of property and did not
necessarily involve personal presence of person claiming to occupy.
However acts preparatory to completion allowed by
courtesy of vendor do not count as actual occupation.