It is stated, in this case, that the property is registered; therefore, the relevant legislation is the LRA, although the original concept of overriding interests was established in the Land Registration Act 1925. Under the 1925 Act, certain overriding interests would only continue until the point at which the land is registered. As Shambles has now been registered, the rules relating to third party interests contained in the LRA must be referred to.
The first issue to be considered by Lance is that of Porter's ex- partner, Rina, who has been living in the property for a period of at least five years. On the assumption that Shambles became registered to Porter, after 1st October, 2003 and where the LRA is in force, then the rights attached to Rina will be in accordance with the LRA. The overriding interest of actual occupation existed under the 1925 Act in s70(1)(g). Whilst this old right still exists, it is now subject to the new law as contained in the LRA. Essentially, the overriding interest and the right of a third party in actual occupation will exist where there is actual occupation, at the relevant time, by the owner. This is important, in this case, due to the fact that there may be some debate as to whether or not Rina is, in fact, an actual owner, i.e. legally or beneficially entitled to the property. As Rina is an estranged partner of Porter, Rina may have a valid argument that she has an equitable entitlement to at least part of the property. Recent case law has suggested that, where both parties have contributed in some way to the property, even if it is registered in only one person's name, the court will determine the shares of the property to be held by each party, based on the course of dealings between them1. With this in mind, it would be necessary to consider the relationship between Rina and Porter and whether she could legitimately claim an equitable interest in the property (Abbey & Richards, 2007).
On the assumption that Rina can show an equitable interest, she would potentially be able to rely on the actual occupation interest as stated in Schedule 3, Para 2 of the LRA. This right would exist, provided it was not an interest under the Settled Land Act 1925, it was not a deliberate failure to disclose the right and the occupation would have been obvious on a reasonably careful inspection of the land in question at the time of the disposition.
Under the provisions in the LRA, there is no precise definition of actual occupation; however, case law previously heard under the 1925 Act is thought to be current and relevant under the LRA2.
Under the LRA, Rina will only forfeit the overriding status of her interest, if she would have been reasonably expected to declare her right to Lance. As Lance undertook his own conveyancing, it is unlikely that sufficiently detailed questioning was undertaken in relation to any adults in actual occupation. Moreover, in the absence of such questioning, it is therefore highly likely that Rina will not have sacrificed her overriding status, based on failure to disclose reasonably.
Furthermore, as Rina lived in the main property and has done so for 5 years, her presences and actual occupation would be reasonably noticeable to anyone who had made an inspection of the property. The facts suggest that Lance did not actually inspect the property, at all, due to his location in London and had he made a reasonable inspection, he would have been aware of Rina's occupation, prior to