Link Lending Ltd v Bustard [2010]

Link Lending Ltd v Bustard [2010] EWCA Civ 424 is a significant English land law decision that addressed the concept of actual occupation in registered land, particularly in situations involving vulnerable individuals, such as those suffering from mental syndromes and susceptible to fraud. The central issue was whether an intention to return home, following a fraud-induced absence, could be deemed as actual occupation for the purposes of overriding interests, which bind new owners and lenders in domestic properties.

Mrs Noreen Hussain, through fraudulent means, took advantage of Ms Susan Bustard's mental handicap and persuaded her to transfer the ownership of a house in Middlesbrough in 2004. Subsequently, Ms Bustard was sectioned in 2007 and placed in a mental health hospital. The fraudster, Mrs Hussain, replaced the existing mortgage with Link Lending in 2008, defaulted, and the lender claimed possession, arguing that Ms Bustard had not been in actual occupation for over a year.

The key contention revolved around whether Ms Bustard's intermittent visits, her incapacity to live safely in the property, and her intention to return constituted actual occupation. The court held that, despite her absence at the time of the property transfer, Ms Bustard's persistent intention to return home, evidenced by regular visits and the presence of her furniture and personal effects, qualified as actual occupation.

The judgment emphasised a nuanced evaluation of the circumstances, considering factors such as the degree of permanence and continuity of presence, the intentions and wishes of the occupant, the length of absence, and the nature of the property and personal circumstances. The court rejected the lender's argument that Ms. Bustard's situation did not meet the criteria of actual occupation.

The court's decision underscored the importance of a hybrid objective-subjective test in determining actual occupation, particularly in cases involving vulnerable individuals. The judgment criticised the lender's reliance on a mere drive-by inspection and suggested that physical inspections in valuations should consider legal occupancy.

Notably, the court did not delve into other means of constructive notice, such as under land registration, where the details of the transaction indicated recent ownership and undervalue. The case did not address certain errors in the lender's decision to lend to the borrower, the fraudster, against the previous owner.

In conclusion, this case contributes to the evolving understanding of actual occupation in land law, especially in situations involving vulnerable individuals and fraudulent activities. The decision emphasises a contextual evaluation of the circumstances to determine whether a person is in actual occupation of the property, providing clarity on the factors that should be weighed in such assessments.
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