Occupation rent

This article focusses on the recent case of Bailey v Dixon [2021] EWHC 2971 (QB).

Facts

Susan Bailey (SB) and Barry Dixon (BD), a cohabiting couple, jointly owned the property in which they lived with BD’s grandson. The relationship broke down and SB left the property. The joint tenancy was severed a number of years later with the consequence that SB and BD, as trustees of the legal interest, then held the beneficial interest in the property as tenants in common.

BD issued proceedings seeking an order for sale of the property under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). SB defended the action and as part of her case made a claim for an occupation rent to reflect BD’s exclusive occupation of the property since SB had departed and to reflect SB’s exclusion from the property.

Judgment

At first instance the County Court registrar refused SB’s claim for an occupation rent, primarily on the basis that SB had not been prevented from living at the property, rather she had chosen not to occupy. In other words, SB had not shown that she had been barred from exercising her legal right to occupy.

The High Court allowed SB’s appeal, holding that under TOLATA the Court may award compensation (an occupation rent) if it is just to do so, whether or not there is any proof of the claimant having been ousted from the property.

Conclusion

This is not new law but rather the High Court restating existing law. The Court will look at all the circumstances surrounding one beneficial owner leaving the property to determine whether it is just and equitable for the remaining beneficial owner to be charged with paying an occupation rent.

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