Abbey National Building Society v Cann [1991] AC 56 House of Lords

Mrs Cann had been living in rented accommodation and was offered the opportunity to purchase the freehold of the property at a substantial under value by virtue of her status as a protected tenant. Mrs Cann could not afford to purchase the house but her son offered to purchase it on her behalf. He took out a mortgage on the property and promised his mother she could stay there rent free and would always have a roof over her head. The property was duly conveyed into their joint names and they both lived in the property along with Mrs Cann’s second husband. Subsequently the house was sold and another property was purchased in the sole name of the son. The purchase price being met partly from the proceeds of sale and partly by mortgage taken out by the son. The three of them lived in the property until the son left to live with a woman who he subsequently married. The son found it difficult to pay for the two homes and therefore told Mr and Mrs Cann that he would need to sell the house and buy them something smaller. They found a suitable property and the son took out a mortgage with the Abbey National Building Society to pay for the new property. He then defaulted on the payments and the bank sought possession. Mrs Cann sought to establish an overriding interest based on her contribution to the original purchase in the form of the reduced purchase price through her status as protected tenant and the son’s assurance that she would always have a roof over her head coupled with actual occupation. On the date of completion Mrs Cann was on holiday in the Netherlands, but her son and husband had started moving in the furniture and her carpet fitters had gone into the property 35 minutes before completion had taken place.

Held;

The relevant time for determining occupation for the purposes of s.70(1)(g) was the date of completion of the transaction rather than the date of registration. The preliminary acts of moving in were not sufficient to constitute actual occupation.

Lord Oliver:

"At the date of completion Mrs. Cann was not personally even in England, leave alone in personal occupation of the property, and the trial judge held that the acts done by Mr. Abraham Cann and Mr. George Cann amounted to

"no more than the taking of preparatory steps leading to the assumption of actual residential occupation on or after
 completion, whatever the moment of the day when completion took place ..."

For my part, I am content to accept this as a finding of fact which was amply justified by the evidence before him, and I share the reservations expressed by Ralph Gibson and Woolf L.JJ. in the Court of Appeal. It is, perhaps, dangerous to suggest any test for what is essentially a question of fact, for "occupation" is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied. It does not necessarily, I think, involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy, I should have thought, on behalf of his employer. On the other hand, it does, in my judgment, involve some degree of permanence and continuity which would rule out mere fleeting presence. A prospective tenant or purchaser who is allowed, as a matter of indulgence, to go into property in order to plan decorations or measure for furnishings would not, in ordinary parlance, be said to be occupying it, even though he might be there for hours at a time. Of course, in the instant case, there was, no doubt, on the part of the persons involved in moving Mrs. Cann's belongings, an intention that theywould remain there and would render the premises suitable for her ultimate use as a residential occupier. Like the trial judge, however, I am unable to accept that acts of this preparatory character carried out by courtesy of the vendor prior to completion can constitute "actual occupation" for the purposes of section 70(1)(g).

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