Mr and Mrs Ainsworth lived in Milward Road, Hastings, Sussex and had four children. Mr Ainsworth was the registered owner, but moved out in 1957, borrowed £1,000 in 1958 from the bank, and gave the bank a charge (security by mortgage) over it. The money was used for his small business, Hastings Car Mart Ltd, incorporated at the end of 1959. He had left his wife living in the home, deserting their relationship. In 1962 he (as borrower) fell behind in the payments to the bank who soon sought possession of the house and sued, bringing this action. However, Mrs Ainsworth refused to leave because she contended that she had an interest in the home that bound the bank.”
Under the Land Registration Act 2002, Schedule 3 (and its predecessors), certain interests are ‘overriding’, meaning that even if they are not registered they can be asserted against those with registered interests in the property. One of these overriding interests is any interest belonging to a person in actual occupation of the property (para. 2).
The issue in this case was whether the bank could claim possession of the house despite the continued occupation there of the defendant’s family. In particular, the court was asked to determine what sort of interest needed to be coupled with the actual occupation.
The House of Lords held the wife had no overriding interest, and so the bank could take possession of the property.
The House of Lords held that the necessary interest had to be proprietary. They held that the separation agreement permitting the wife to remain in the house was a mere license, and licenses are a personal, non-proprietary right. As the wife did not have a proprietary interest in the house, she had no interest which could amount to an overriding interest. She could not, therefore, resist possession.”