## Facts

- Mrs. Bustard's property was transferred by her solicitor to a third party, H, without her receiving any proceeds.
- H subsequently obtained a mortgage over the property from Link Lending Ltd.
- After H defaulted on the mortgage, Link Lending Ltd sought possession.
- Mrs. Bustard contested possession, asserting the transfer was voidable due to undue influence or lack of capacity and claimed an overriding interest based on her actual occupation.
- At the time the mortgage was registered, Mrs. Bustard was involuntarily detained in a psychiatric institution.
- The court examined the circumstances of her absence, noting it was involuntary and resulted from her detention.

## Issues

1. Whether Mrs. Bustard’s absence from the property due to involuntary detention affected her status as being in actual occupation at the relevant time.
2. Whether her demonstrated intentions to return and occassional visits, despite absence, sufficed to establish an overriding interest under the Land Registration Act 2002.

## Decision

- The Court of Appeal found in favour of Mrs. Bustard, holding that she was in actual occupation despite her absence on the registration date.
- The court emphasized factors such as the continuity and permanence of her connection to the property, her intentions to return, and the involuntary nature of her absence.
- Regular visits and a clear intention to return supported the finding of actual occupation.
- The decision reversed the lower court, recognizing her overriding interest under the Land Registration Act 2002.

## Legal Principles

- Actual occupation under the Land Registration Act 2002 does not require continuous physical presence at the exact moment of a relevant disposition.
- Courts must evaluate multiple factors, including permanence, continuity, intentions, reason for absence, nature of the property, and claimant’s circumstances.
- Involuntary absence, objectively explained by factors outside the claimant's control, does not preclude actual occupation.
- The assessment is fact-sensitive and considers whether a real and substantial connection to the property is maintained.

## Conclusion

The Court of Appeal’s decision in Link Lending Ltd v Bustard established that actual occupation for overriding interests is determined by a comprehensive assessment of factual circumstances, especially considering involuntary absence where there is a demonstrated intention to return and sufficient continuity. This case highlights the importance of evaluating both the reasons for absence and the occupier's intentions in claims under the Land Registration Act 2002.


Link Lending Ltd v Bustard [2010] EWCA Civ 424