The relevant time to establish actual occupation for the purpose of Sch 3 para 2 is the time of completion. Actual occupation will not be established upon mere preparatory acts to occupy.

A wife’s beneficial interest under a trust was found to be binding on a purchaser of the property. Having paid purchase monies to just one trustee (the husband) no overreaching had taken place. The unoverreached interest, coupled with the fact that the wife was found to be in actual occupation at the time of purchase, despite being in hospital having a baby, gave her a binding overriding interest.

Temporary absence from the property will not prevent a finding of actual occupation for the purpose of Sch 3 para 2 provided there is some physical evidence of occupation present (here furniture and belongings remained in the property) coupled with an intention from the temporarily absent occupier to return.

A property was purchased by a married couple with contributions provided by the wife’s parents. The parents thus acquired a beneficial interest in the property. The property was mortgaged to the building society which later sought repossession. The building society was not bound by the parents’ beneficial interests, having successfully overreached those interests when advancing mortgage monies to the married couple, ie two trustees.

Successful overreaching requires payment of monies to at least two trustees. Once overreached, beneficial interests will not bind a purchaser, regardless of any actual occupation of the beneficiaries and any notice the purchaser may have of those interests.

A woman was found to be in actual occupation for the purpose of Sch 3 para 2, despite being absent from the property by reason of being in a mental institution.

In establishing actual occupation for the purpose of Sch 3 para 2, relevant factors may include an intention to return to the property, keeping furniture and personal effects at the property, regular visits to the property, and continued payment of property outgoings.

House of Lords held that a wife could not claim any binding interest against a bank to whom her husband had mortgaged a semi-derelict property. Although approving Court of Appeal statements that she was in actual occupation, she was found to have no interest in the property.

In establishing actual occupation, look at the nature of the property. A semi-derelict property may be occupied by virtue of the presence of builders and their supervision on site.

A father failed to establish that he was in actual occupation of a property by showing that his stepdaughter lived at the property. Although he used the property as a base when in London, such use was infrequent and he in no way treated the property as his home. His stepdaughter lived there for her own purposes and was in no way his agent.

Actual occupation for the purpose of Sch 3 para 2 cannot be established through occupation of another unless it can be shown that that other is your agent.

A bank was found to be bound by a wife’s beneficial interest under a trust. Having advanced the mortgage monies to just one legal owner (the husband), it had not successfully overreached the beneficial interest and this, coupled with the fact that the wife was in actual occupation of the property, gave her an overriding interest binding upon the bank.

Successful overreaching requires payment of monies to at least two trustees. Where a beneficial interest has not been overreached, and the interest holder is in actual occupation of the land, it will bind a purchaser as an overriding interest.