Rights of Contributory occupier
 Is there a trust?
 Is it a resulting trust or a constructive trust?

Resulting trust- a trust implied by law (as determined by a court) that a
person who holds title or possession was intended by agreement (implied
by the circumstances) with the intended owner to hold the property for the
intended owner. Sekhon v Alissa 1989

Dewar v Dewar [1975]- some contribution was made towards the purchase
of land

Dyer v Dyer [1788]- where the person whose name is on the register but
he has made no contribution

Constructive trust- in one imposed by the courts on the owner of the legal
title to property requiring him to hold the whole of part of the beneficial
interest for someone else. Margaret Wilkie in Land Law

Llyod Bank Ltd v Rossett [1991]o
there must be a common intention that each have beneficial share and
is evidence by some form of agreement (Grant v Edwards [1986] and
Eves v Eves)
o In the absence of a common agreement a common intention could infer
the conduct of the parties. (Yaxley v Gotts [2000])

Pettitt V Pettitt (1970) [negative judicial treatment] – Parties married made
no difference as there must be a common intention

Gissing v Gissing [1971] ‘it is unnecessary for present purpose to
distinguish between these three classes of trust….. the two (resulting and
constructive) can run together.’ There must be [negative judicial treatment]

Le Foe v Le Foe- suggests that the only answer must be 50/50

Midland Bank plc v Cooke 1995 - wife had contributed only 7% to
purchase price all household expenses had been paid from joint bank
account – after 24 years of marriage court found W’s share to be 50%

Drake v Whipp 1996 - claimant contributed 40% of original purchase price
– which was 19% of the total cost of buying the property and converting it
from a barn to a house. He undertook 30% of the work required to make
the conversion. The property was intended to be the couple’s home. The
claimant contributed to household expenses and they held a joint bank
account – claimant award a one-third share

Oxley v Hiscock 2005 CA and Stack v Dowden [2007] - If there is
evidence that the parties reached an agreement as to the value of their
respective shares, it seems that the court will endorse it
 Is there a restriction (registered land) or a Notice(unregistered land)?
 Are there any issues of the FLA 1996 s 31 (10) Involved? A Class F charge
unreg land or notice if Reg land.
 is there occupation?
 if yes then under registered land is there a schedule 3 para 2 interest which
override? Three conditions which must be satistied:
o Interest
 This is a negative requirement thus the interest must not be
known for the Purchaser to buy the land without any overriding
interests.
 This criterion will not be satisfied if the purchaser knew of the
interest even if the occupation is not obvious.
o Actual occupation
 Ferrishurst Ltd v Wallcite [1999] –offers protection to the
extended part of land which the D did not occupy but was
reflected of the register
 Williams &Glyn’s Bank Ltd v Boland [1981]- ‘the physical
presence which matters not some entitlement in the law’ and
actual occupation must be at the date of the disposition
 Abbey National Building society v Cann [1991]- occupation is
interpreted differently according to the ‘nature and purpose of
the property’
 Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002]‘some degree of presence and continuity.
 TEMPORARY ABSENCE- Chhokar v Chhokar [1984] and
Hoggett v Hoggett (1979)- temporary absences is like visiting a
friends on one weekend
 Presence of possessions in the property with the intention to
return is enough to show actual occupation (Thompson v Foy
[2010])
o Discoverable on reasonably careful inspection


This is a negative requirement thus the D must not be obvious
for the Purchaser to buy the land without any overriding
interests.
This criterion will not be satisfied if the purchaser did not know of
the interest but reasonable occupation would make the
occupation obvious.
 This means that the Purchaser will still be bound by these overriding interests
if he knows of the interest or of occupation. Thus if any person seen to be in
occupation should be asked whether they have any interest in the property
and doing so has been standard practice since the case of Williams &Glyn’s
Bank Ltd v Boland [1981]
 Bailey v Burn [1894] – if the purchaser is a mortgagor then there must be a
usual and proper notice and the requirement under s103 of LPA 1925 must be
met.
 if yes then under unregistered land does the purchaser have notice,
Kingsnorth Trust v Tizard [1985]:
1. actual Notice
2. Imputed notice
3. Constructive Notice
 Overreaching
o Expressly agreed- Hodgson v Mark
o Implied agreed – Paddington Building society v Mendelsohn (1985)
 Can the effected party raise proprietary estoppel?
o However, the concept of estoppel can be applied :
 (1) in considering as whether there is the “common intention”
that a constructive trust should exist:
 - has the legal owner of the property allowed the
contributor to act to the contributor’s detriment and by
doing so the legal owner is estopped from denying the
existence of a common intention ?
o (2) in considering whether, by denying or hiding his occupation, the
contributor is estopped from asserting his interest against a purchaser
or mortgage lender- Yaxley v Gotts 2000