Chaudhary v Yavuz [2011]

1. Facts

• The defendant (D) purchased a property adjacent to that of the claimant (C).

• The only access to C's property was through D’s stairs.

• C had an equitable right in rem, which raised the issue of whether C could be prevented from using the stairs.

2. Outcome

• The Court of Appeal determined that C’s use of the stairs did not constitute actual occupation (AO).

• The use of the stairs to pass through the flats was not considered sufficient to establish AO.

3. Impact and Analysis

• Lloyd LJ’s Analysis:

◦ Lloyd LJ emphasised that AO requires more than merely using a property; it involves actual, continuous occupation.

◦ The use of the stairs was deemed transient and not indicative of genuine occupation. Unlike a car, which can demonstrate ongoing presence and AO, the use of stairs was considered too temporary and incidental to qualify as AO.

• Comparison with Kling:

◦ In Kling, the presence of a car was deemed to amount to AO because it indicated ongoing use and presence.

◦ In contrast, using the stairs occasionally did not meet the threshold for AO, as it did not reflect continuous or substantive occupation.

• Definition of AO: This case underscores that actual occupation requires more than sporadic or functional use of a property. For occupation to be recognised, it must reflect a degree of permanence and consistency, as opposed to merely transient or incidental access.