Kling v Keston Properties Ltd [1985]

1. Facts

• The defendant (D) allowed the claimant (C) to keep his car in a garage.

• C had an equitable right in rem, including a right of first refusal to purchase the lease on the garage, but did not register this right.

• D sold the garage to a third party, Aschon, and C's car was removed from the garage.

• C claimed an interest in the garage based on his equitable right and argued that he was in actual occupation (AO) of the garage through his car.

2. Outcome

• The Court of Appeal held that C's interest in the garage constituted an overriding interest.

• The presence of C's car in the garage was sufficient to establish AO.

• The court ruled that AO does not necessarily require human occupation; non-human indicators, such as the presence of personal property, can also establish AO.

3. Impact and Analysis

• AO and Non-Human Occupation: This case expanded the understanding of AO to include instances where the presence of personal property, such as a car, can demonstrate occupation. The ruling highlighted that AO is not limited to physical presence by a person but can be evidenced through the continuous presence of property.

• Overriding Interests: The decision reinforced the concept that an equitable right in rem can be protected as an overriding interest, even if the right-holder’s occupation is not human but represented by their possessions. This underscores the broad scope of what can be considered as constituting AO.

• Legal Precedent: Kling set a precedent that broadens the interpretation of AO, ensuring that rights related to property are protected even when actual occupation is demonstrated through the presence of personal items rather than physical presence.