Summary

Application by the claimant ('UCB') for summary judgment under CPR Part 8 to vacate a caution registered in respect of a property for which the defendant ('D') claimed to be in receipt of the rents and profits within the meaning of s.70(1)(g) Land Registration Act 1925. D's husband ('H'), a former solicitor, was the sole registered proprietor of the property. Part of the property was let by H at various times to different tenants, whilst the remainder was occupied by him as offices for his practice.

Facts

In 1990 H was in financial difficulties. To assist him, D agreed to sell some of her personal property in return for the execution by H of a declaration of trust on the property in her favour. At that time parts of the property were occupied by two tenants as well as by H. D's case was that H thereafter paid her £50 per week rent for his occupation of "his" parts of the property. For the purposes of this application UCB conceded that, whilst H appeared to be the absolute owner of the property, it was arguable that D was the beneficial owner of it and that H enjoyed the benefit of a tenancy by estoppel. It denied, however, that D was a "person ... in receipt of the rents and profits" of the property within the meaning of s.70(1)(g) of the Act, on the basis that H alone was in receipt of the rents from the other two tenants and he could not have lawfully granted a tenancy to himself. It further contended that as a matter of public policy it would be wrong to require lenders such as UCB to make enquiry of apparently absolute owners occupying a property to discover whether or not there was an overriding interest.

Held

The provisions of CPR Part 8 were designed to meet cases where there was no substantial dispute of fact. Here there was a fundamental issue over the precise terms of the arrangement between D and H and the precise nature of D's interest in the property. It followed that this was not a case suitable for summary determination.

Application dismissed.