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Hodgson v Marks [1971] 2 WLR 1263  Court of Appeal

Mrs Hodgson transferred her house to her lodger Mr Evans on the basis that she would remain the beneficial owner of the whole.  They both continued to live in the house under the same arrangement with regard to rent and payment of bills. He held the legal title as bare trustee for her. He then in breach of trust sold the house to Mr and Mrs Marks. When the Marks came to view the property they saw Mrs Hodgson coming up the path but did not make any enquiry as to who she was or if she had any interest in the house, assuming she was Mr Evan’s wife. At trial, the judge found for the Marks and held that actual occupation required actual and apparent occupation and only protected those whose occupation was by an act recognisable to any person seeking to acquire an interest in land. Mrs Hodgson appealed.

Held:

The appeal was allowed. Mrs Hodgson was in actual occupation and it was irrelevant that the Marks had assumed her to be Mr Evans’ wife. There was no requirement that occupation need be apparent.

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