Overriding interests

Question 1

What is meant by an overriding interest?

Answer 1

someone has a proprietary interest in land and is in ‘actual occupation’. The effect of this is that a purchaser or mortgagee is bound even if this interest is not registered.

Question 2

What is actual occupation

Answer 2

physical presence or control of the land with some degree of permanence or continuity.

Question 3

what are some of the factors that courts look at

Answer 3

physical presence
degree of permanence/continuity : temporary does not qualify
Intention to occupy
Nature of the property and use
Evidence of occupation

Question 4

what is the relevant date

Answer 4

date of completion of the purchase - this is relevant because whether somoene’s unregistered proprietary interest overrides a purchaser depends on whether that person was in actual occupation at that exact moment

Acts only done after disposition or only prepatory acts before completion, will not normally create actual occupation for the relevant date.