Apart from or in addition to the statutory rights of occupation, a non-owning spouse may have obtained an equitable interest arising under a resulting or constructive trust for example; he might have chipped in some funds to the purchase price of the property when the purchaser actually bought the same. A person who is not married to the seller can also obtain an equitable interest through a financial contribution. He or she may also be a cohabitee or house sharer. By virtue of s.70(1)(g) of the Land Registration Act, 1925, a person with an equitable interest who is in actual possession of a registered land may have an overriding interest over the property. There is always a possibility that the occupier’s equitable interest may be overreached if the purchase price is paid to at least two trustees of the legal estate. Section 70(1)(g) will also help in nullifying an overriding interest. The appointment of a second trustee can be considered to effect an overreaching but the practical difficulty remains that the seller has to ensure that full final and vacant possession of the concerned land is given on completion. The seller’s attorney should therefore always check the status of each and every occupier and obtain a written release document from the adult member of the occupier of the rights together with an agreement to vacate the concerned property on or before completion. The occupiers should always seek independent advice before putting in their signature on the release. The enactment of the Family law Act, 1996 has also enabled a non-owning ‘co-habitant’ to obtain an occupation order of the property and this practice should be checked immediately.
