Introduction
The principle of actual occupation as an overriding interest under English and Welsh land law has long been a cornerstone of property rights, offering protection to those in physical possession of land despite the lack of formal registration. This principle, enshrined in the Land Registration Act 2002 (LRA 2002), prioritises the rights of occupiers over registered title holders in certain circumstances, often leading to tension between the fundamental registration rule and equitable considerations. Chris Bevan, in his 2025 article, argues that the continued recognition of actual occupation as a statutory exception is indefensible, advocating for its abolition due to its misalignment with modern land registration objectives (Bevan, 2025). This essay critically discusses Bevan’s assertion by examining the historical rationale for actual occupation, evaluating its contemporary relevance, and exploring the arguments for and against its abolition. While acknowledging the challenges posed by this exception, it contends that outright abolition may undermine equitable protections, suggesting instead a nuanced reform to balance competing interests.
Historical Rationale for Actual Occupation as an Overriding Interest
The concept of actual occupation as an overriding interest emerged as a mechanism to protect individuals who, despite not holding a registered title, maintained a physical and visible presence on the land. Historically, under the Land Registration Act 1925 and later refined in the LRA 2002, actual occupation was intended to address the inequities arising from a purely registration-based system, ensuring that bona fide occupiers were not unjustly displaced by registered proprietors unaware of their presence (Dixon, 2016). The landmark case of Williams & Glyn’s Bank v Boland [1981] AC 487 established that a spouse in actual occupation could assert an overriding interest, thereby protecting their rights against a mortgagee. This decision underscored the principle’s role in safeguarding vulnerable parties, often in domestic contexts, from the rigid application of registration rules.
However, as Bevan (2025) notes, this rationale was rooted in a socio-legal context where unregistered interests were common, and land transactions were less scrutinised. With the advent of comprehensive land registration systems and increased digitalisation, the necessity of such a broad exception has come under scrutiny. The historical justification, while once compelling, may no longer align with the policy goal of certainty in land transactions, prompting calls for re-evaluation.
Critiques of Actual Occupation in Modern Land Law
Bevan’s critique centres on the argument that actual occupation undermines the fundamental registration rule, which aims to provide certainty and transparency in land ownership (Bevan, 2025). Under Schedule 3, Paragraph 2 of the LRA 2002, an interest belonging to a person in actual occupation can override registered dispositions if their occupation is apparent or if the buyer had notice of it. This introduces unpredictability, as purchasers may be bound by interests that are not evident on the register, thus eroding the “mirror principle” of land registration—that the register should reflect all relevant interests (Gray and Gray, 2011). For instance, in Link Lending Ltd v Bustard [2010] EWCA Civ 424, the court upheld an overriding interest based on actual occupation, even where the occupation was not immediately obvious, highlighting the potential for registered titles to be unexpectedly encumbered.
Furthermore, Bevan (2025) argues that the protection offered by actual occupation disproportionately favours occupiers over innocent third parties, such as bona fide purchasers for value. This imbalance arguably conflicts with the commercial realities of modern property transactions, where reliance on the register is paramount. Indeed, the uncertainty created by actual occupation can deter investment and complicate conveyancing processes, as prospective buyers must undertake additional due diligence to identify potential occupiers—a burden not always feasible in practice (Law Commission, 2016).
Arguments Against Abolition: The Case for Equitable Protection
Despite these criticisms, abolishing actual occupation as an overriding interest raises significant concerns about equity and access to justice. The principle often protects vulnerable individuals—such as non-owning spouses, tenants, or family members—who may lack the resources or awareness to register their interests formally. The case of Chhokar v Chhokar [1984] FLR 313 illustrates this, where a wife’s actual occupation safeguarded her interest against a fraudulent sale by her husband. Abolishing this protection could exacerbate power imbalances, particularly in domestic settings, leaving such individuals exposed to dispossession without remedy (Dixon, 2016).
Moreover, actual occupation serves as a practical check on the registration system’s shortcomings. While the LRA 2002 aims for comprehensive registration, gaps remain, with some interests still unregistered due to oversight or systemic barriers. Removing the overriding status of actual occupation without addressing these underlying issues risks prioritising procedural certainty over substantive fairness—a trade-off that many scholars and practitioners would deem unacceptable (Gray and Gray, 2011). Therefore, while Bevan’s critique identifies genuine flaws, outright abolition appears to overlook the principle’s protective function, suggesting that reform, rather than elimination, may be a more balanced response.
Exploring Reform as an Alternative to Abolition
Rather than abolishing actual occupation, a more defensible approach might involve targeted reforms to mitigate its disruptive impact while preserving its equitable benefits. One proposal, echoed in the Law Commission’s 2016 report on updating land registration, is to narrow the scope of actual occupation, limiting its application to situations where occupation is obvious and the interest is reasonably discoverable through inspection (Law Commission, 2016). This would reduce the burden on purchasers while still protecting occupiers whose presence is evident. Additionally, introducing mandatory registration for certain interests currently protected by actual occupation could further align the principle with the registration rule, gradually phasing out reliance on overriding interests.
Such reforms would address Bevan’s concerns about uncertainty without sacrificing the safeguards embedded in actual occupation. However, implementing these changes requires careful consideration of transitional arrangements and support mechanisms to ensure that vulnerable occupiers are not disadvantaged during the shift to a more registration-focused system. Balancing these competing imperatives remains a complex, yet necessary, task for policymakers.
Conclusion
In conclusion, while Bevan’s assertion that actual occupation’s recognition as a statutory exception is indefensible raises valid concerns about certainty and transparency in land transactions, outright abolition risks undermining the equitable protections it affords to vulnerable parties (Bevan, 2025). This essay has critically discussed the historical rationale for the principle, its modern critiques, and the compelling arguments for retaining some form of protection. Although the principle introduces unpredictability into the registration system, its role in addressing systemic gaps and safeguarding rights cannot be disregarded. Rather than abolition, a reform-focused approach that narrows the scope of actual occupation and encourages mandatory registration appears more appropriate. Ultimately, the challenge lies in striking a balance between the certainty of the registration rule and the fairness owed to occupiers—a nuanced objective that warrants further legislative and academic exploration.
References
- Bevan, C. (2025) ‘100 Years of Actual Occupation as an Overriding Interest in English & Welsh Land Law: Challenging the Rationale and Making the Radical Case for Abolition’, Legal Studies, 45, pp. 22-37.
- Dixon, M. (2016) Modern Land Law. 11th edn. Routledge.
- Gray, K. and Gray, S. F. (2011) Elements of Land Law. 5th edn. Oxford University Press.
- Law Commission (2016) Updating the Land Registration Act 2002. Law Commission Report No. 380.
[Total word count: 1052]
