K8. Occupation and ownership of land

- Meaning of occupation

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- Ordinary word of plain English (Williams & Glyn's Bank Ltd v. Boland).

- Ordinary words may contain a variety of shares of meaning (Abbey National).

- Meaning may also vary according to the applicable statutory context (Waterside Escapes, §60).

- Means different things in different contexts (Newnham College, §9).

- 'Occupier' required a comprehensive and stable relationship in Southern Water Authority due to the statutory consequences.

- "In choosing the concept of occupation, Parliament must have been aware that it came with a well-understood meaning." (Newnham College, §16).

- What amounts to occupation varies according to the nature and purposes of the property claimed to be occupied (Abbey National at 93).

- Does not necessarily require the personal presence of the person claimed to be occupying but does require a degree of permanence and continuity:

- "It is, perhaps, dangerous to suggest any test for what is essentially a question of fact, for "occupation" is a concept which may have different connotations according to the nature and purpose of the property which is claimed to be occupied. It does not necessarily, I think, involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy, I should have thought, on behalf of his employer. On the other hand, it does, in my judgment, involve some degree of permanence and continuity which would rule out mere fleeting presence. A prospective tenant or purchaser who is allowed, as a matter of indulgence, to go into property in order to plan decorations or measure for furnishings would not, in ordinary parlance, be said to be occupying it, even though he might be there for hours at a time." (Abbey at 93)

- Presence for 24-hour period/overnight stay not necessarily required (Waterside Escapes §70).

- Requires some degree of possession and control (Waterside Escapes §62).

- "I do not think that there is much doubt about what the word "occupation" means, although it may be more difficult to apply its ordinary meaning to the facts in some contexts than it is in others. In its ordinary meaning it requires more than just a right to use the land or to enjoy the facilities that are to be found there. Physical presence is an essential element. But there is more to it than that. It requires actual possession of the land, and the possession must have some degree of permanence. In the Court of Appeal [2006] STC 1010, para 36, Chadwick LJ drew on the guidance that the House derived from decisions of the European Court of Justice about the meaning to be given to the concept in the context of the Sixth Directive in Customs and Excise Commissioners v Sinclair Collis Ltd [2001] STC 989. He said that to be in "occupation" of land for the purposes of para 3A(7) requires more than a right to use that land. He then added this important sentence:

"It requires some degree of control over the user by others - that is to say, some degree of control over what those who are not also in occupation of the land can do on the land." (Newnham College, §31).

- Occupation may continue despite long absence of kept ready for habitation, but manifestation and continuing intention to occupy usually necessary:

- "I am of the opinion that a person may occupy premises as his residence, even though he is absent for a very long period...It seems to me that, if a person takes the tenancy of a house and furnishes it and keeps it ready for his own habitation “whenever he pleases to go into it”, he is, as Lush J said, an occupier though he may not reside in it one day in a year, and I would further say that he occupies it as a residence. Moreover, I would say that he occupies it as his residence provided that it is understood that the expression “his residence” is not used in a context which implies his main residence. It means he keeps it for himself to live in. If, however, he sublets the property, he ceases to occupy it as his residence because, as Moore LJ explained, the occupation is in the subtenant." (Poland)

- "iv) The mere presence of some of the claimant's furniture will not usually count as actual occupation: Strand Securities Ltd. v Caswell [1965] Ch 958 per Russell LJ at 984;

v) If the person said to be in actual occupation at any particular time is not physically present on the land at that time, it will usually be necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy: compare Hoggett v. Hoggett (1980) 39 P&CR 121, per Sir David Cairns at 127." (Thompson v. Foy §127)

- Involuntary residence elsewhere with persistent and manifested intention to return amounting to actual occupation:

-  "It is clear from the citations that Ms Bustard's is not a case of a "mere fleeting presence", or a case, like Cann, of acts preparatory to the assumption of actual occupation. It is also distinguishable from Stockholm, which involved the domestic living arrangements of a Saudi princess living with her mother in Saudi Arabia and owning a house in London, where there was furniture and clothing and caretaking arrangements in place, but where she had not lived for more than a year. In this case the new and special feature is in the psychiatric problems of the person claiming actual occupation. The judge was, in my view, justified in ruling, at the conclusion of a careful and detailed judgment, that Ms Bustard was a person in actual occupation of the Property. His conclusion was supported by evidence of a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere, which was satisfactorily explained by objective reasons, and of a persistent intention to return home when possible, as manifested by her regular visits to the Property." (Link Lending Limited, §30)

- Absence for over a year whilst living elsewhere breaking occupation

- Whether a person's intermittent presence at a house which is fully furnished, and ready for almost immediate use, should be seen as continuous occupation marked (but not interrupted) by occasional absences, or whether it should be seen as a pattern of alternating periods of presence and absence, is a matter of perception which defies deep analysis. Not only the length of any absence, but also the reason for it, may be material (a holiday or a business trip may be easier to reconcile with continuing and unbroken occupation than a move to a second home, even though the duration of the absence is the same in each case). But there must come a point at which a person's absence from his house is so prolonged that the notion of his continuing to be in actual occupation of it becomes insupportable; and in my judgment that point must have been reached, in this case, long before Mr Dawkins visited the house on 4 January 1990 (and still more so, long before 20 February 1990). By then Princess Madawi had not set foot in the property for over a year: she had for over a year been living with her mother in the Islamic household at Riyadh." (Stockholm Finance)

- Poland - tenants not in occupation when it was sublet or during a period when the mortgagee had taken possession and could lawfully prevent them residing in the house. 

- Abbey National v. Cann - purchaser having carpets laid and furniture moved in with vendor's consent were acts preparatory to occupation, not actual occupation. 

- Waterside Escapes - individual who managed property on behalf of company was not in occupation when attending/staying at property on 4 nights due to performance of the role.

- Newnham College - University college was not in occupation of a library that it had lease to a library company which staffed it with staff seconded by the college.

- Malory Enterprises - Maintaining fences, boarding up windows and using land for storage where derelict sufficient for actual occupation. Contrast with Pennistone Holdings where the land appeared abandoned. 

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Legislation: 

Cases: 

- Poland v. Earl Cadogan [1980] 3 All ER 544; 

- Williams & Glyn's Bank Ltd v. Boland [1981] AC 487; 

- Abbey National v. Cann [1990] 1 All ER 1085 at 1101 (HoL);

- Southern Water Authority v. Nature Conservancy Council [1992] 3 All ER 481; 

- Stockholm Finance Ltd v. Garden Holdings Inc [1995] Lexis Citation 4501; 

- Malory Enterprises Ltd v. Cheshire Homes (UK) Ltd [2002] EWCA Civ 151; 

- Newnham College v. HMRC [2008] UKHL 23; 

- Thompson v. Foy [20009] EWHC 1076 (Ch); 

- Link Lending Ltd v. Bustard [2010] EWCA Civ 424; 

- Waterside Escapes Ltd v. HMRC [2020] UKFTT 404 (TC) (SDLT) (Judge James Austen); 

- Pennistone Holdings Limited v. Rock Ferry Waterfront Trust [2021] EWCA Civ 1029; 

HMRC manuals: 

Commentary: 

See also:

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