is an English land law case concerning the right of a person with an equitable interest in a home to remain in actual occupation, even if a bank has a charge and is seeking repossession.

Facts

Mrs Hodgson bought 31 Gibbs Green,

Edgware Edgware () is a suburban town in northern Greater London, mostly in the London Borough of Barnet but with small parts falling in the London Borough of Harrow and in the London Borough of Brent. Edgware is centred north-northwest of Charing Cros ...

Middlesex Middlesex (; abbreviation: Middx) is a historic county in southeast England. Its area is almost entirely within the wider urbanised area of London and mostly within the ceremonial county of Greater London, with small sections in neighbour ...

in 1939. After being widowed in April 1959 she took Mr Evans as a lodger, and in June 1960 transferred him her freehold for free. He told her she should give him the deeds so her nephew, in the foreign service, would not return and turn her out. He also took money to invest on her behalf. He registered himself, and sold it to Mr Marks, who gave a charge to

Cheltenham & Gloucester Cheltenham & Gloucester plc (C&G) was a mortgage and savings provider in the United Kingdom, a subsidiary of Lloyds Banking Group. C&G specialised in mortgages and savings products. Previously, C&G was a building society, the Cheltenham and Glouc ...

Building Society. Mrs Hodgson, still living there, found out and claimed a declaration that Mr Marks should transfer his freehold to her, free from the building society charge. Mr Evans had held on trust for her, and that bound Mr Marks and the building society.

Judgment

High Court

Ungoed-Thomas J held that Mrs Hodgson did not have the right to stay in her home. He found that Mrs Hodgson had always intended for Mr Evans to hold any title on trust for her, despite any signed writing ( Law of Property Act 1925, section 53(1)(b) declaration of trust in land requires writing, but (2) does not affect resulting, implied or constructive trusts). She reposed trust and confidence in him. The key point was that the requirement of writing could not be used to let a fraud be perpetrated. But he held that Mrs Hodgson nevertheless lost because she was not in ‘actual occupation’.

Court of Appeal

Russell LJ found in favour of Mrs Hodgson, but on the basis that there was a resulting trust, rather than that statute should not be used as an instrument of fraud. She had an equitable proprietary interest through a resulting trust, and this interest came before the building society's charge.

Notes

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References