Link Lending v Bustard [2010]

1. Facts

• In this case, the court upheld that Mrs. Bustard was in actual occupation (AO) of her property, even though she had been hospitalised for the past six weeks and had not been physically present at the property for an extended period.

• Despite her absence, she had left personal belongings at the property and continued to pay utility bills, indicating her ongoing connection and intention to return to the property.

2. Outcome

• The court held that Mrs. Bustard's actual occupation was upheld, despite her absence due to hospitalisation.

• The decision highlighted that AO does not require continuous physical presence but can be demonstrated by other factors, such as the presence of personal belongings and continued financial commitments to the property (e.g., paying utility bills).

3. Impact and Analysis

• Mummery LJ’s Checklist for AO: Lord Justice Mummery provided a checklist for determining actual occupation, considering:

◦ The degree of permanence and continuity of occupation.

◦ The intentions and wishes of the person claiming AO.

◦ The length of absence from the property and the reason for it.

◦ The nature of the property and the personal circumstances of the person claiming AO.

• Flexibility in Defining AO: The case emphasises the court's flexible approach in defining actual occupation. The courts recognise that AO can depend on various factors, rather than a strict legal test or continuous physical presence.

• Trend in Case Law: The case reflects a broader trend where courts are reluctant to establish a single legal test for determining actual occupation. Instead, they assess each situation on a case-by-case basis, considering the unique circumstances of the occupant.