Chancery Division
Published July 24, 2008
French v Barcham and Another
Before Mr Justice Blackburne Judgment July 4, 2008

A beneficial tenant in common who continued in occupation of a property following the bankruptcy of the other beneficial tenant in common could be required to compensate the bankrupt’s estate for that continued occupation.

Mr Justice Blackburne so held in the Chancery Division when allowing an appeal by Jeremy Stuart French, trustee in bankruptcy of Peter Francis Barcham, husband of the second respondent, Berna-dette Margaret Barcham, against the dismissal by District Judge Chandler of his application to be credited with an occupation rent from Mrs Barcham for her continued occupation, following her husband’s bankruptcy, of a property they owned. The district judge had held that anyone seeking compensation for a restriction or exclusion of the right to occupy trust land must fall within the statutory regime set out in sections 12 to 15 of the Trusts of Land and Appointment Act 1996 and since the trustee was not a beneficiary entitled to occupy the land under section 12 then he was not entitled to any compensation under section 13(6).

Mr Stephen Davies QC and Mr Stefan Ramel for Mr French; Mr Alexander Learmonth for Mrs Barcham.

MR JUSTICE BLACKBURNE said that sections 12 to 15 of the 1996 Act did not provide an exhaustive regime for compensation for exclusion of a beneficiary from occupation of property held subject to a trust of land; the district judge had been wrong to find that as the trustee could not establish an entitlement to compensation under section 13(6), his application to be credited with an occupation rent necessarily failed.

Nothing said by the House of Lords in Stack v Dowden (The Times April 26, 2007; [2007] 2 AC 432) led to a different view of the scope of the provisions of the Act.

Where the statutory scheme applied then it should be applied but where it plainly did not there was no reason why the party not in occupation of the land in question should be denied any compensation at all if recourse to the court’s equitable jurisdiction would justly compensate him.

There was nothing in the case law to suggest that in cases other than those expressly covered by the 1996 Act the preexisting principles of equitable accounting, so far as relevant to determine when and to what extent a charge should be made for occupation rent, should not continue to apply.

Solicitors: Moon Beever; Tilbrook's, Chipping Ongar

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