the times | Tuesday May 17 2022 51
Register
A co-owner in occupation was not
obliged to pay occupation rent mere-
ly because he was living in the prop-
erty and the co-owner was not.
Something more had to be shown
and the focus was on the behaviour of
the person in occupation.
There was no reason in principle to
make the obligation to pay occupa-
tion rent turn on the reasonableness
or otherwise of the behaviour of the
non-occupying party in not occupy-
ing the property.
The Court of Appeal so stated when
dismissing the appeal of the claimant,
Bilal Ali, against a decision of Judge
Milwyn Jarman QC, sitting as a High
Court judge in the Cardiff Business
and Property Court, refusing his claim
for occupation rent before the sale of a
residential property.
The claimant was the personal
representative of his deceased father,
Farzand Ali, one of four children who
benefited equally under the will of
their late mother, Fateh Bibi. The
other children being Mohammed
Ramzan, Mohammed Iqbal and Par-
veen Iqbal. The estate included the
mother’s home. One son, Moham-
med Ramzan since deceased, and his
wife, Shanaz Akhtar Ramzan, lived
with the mother in her home and
continued to occupy the property
after her death in July 2006.
The defendants were: (1) Laith
Khatib as personal representative of
the mother; (2) Shanaz Akhtar Ram-
zan as personal representative of Mo-
Kensington Palace
15th May, 2022
The Duke of Cambridge this evening
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Mr Jean-Christophe Gray is in
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16th May, 2022
The Duke of Cambridge this
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arrived in the United Kingdom from
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16th May, 2022
The Earl of Wessex, Trustee, The
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LLOYD on 1st May 2022 to Emily (née
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The marriage took place on 13th May 2022,
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Funeral with Memorial Service at a
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9QB, on 20th May at 1pm.PERRY Christopher David Wilson, on 31st
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WILLS Eva Helen McMorrough on 10th
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newsukadvertising.co.ukCourt Circular
Law Report
Occupation rent is not generally payable to a
co-owner before the sale of trust property
hammed Ramzan, and personally; (3)
Mohammed Iqbal; and (4) Parveen
Iqbal. The claimant sought, inter alia,
an order for the sale of the property
with vacant possession and an order
that Shanaz Ramzan account to the
first defendant, as personal repre-
sentative of the mother, for occupa-
tion of the property from the date of
the mother’s death until the sale.
Clifford Darton QC for the claim-
ant; John Sharples for the second,
third and fourth defendants. The first
defendant did not appear and was not
represented.
Lady Justice Asplin said that the
judge had concluded that he was not
satisfied on the facts that there was
any conduct on the part of the Ram-
zans that justified an award of occu-
pation rent or any exclusion or re-
striction of Farzand Ali’s right of oc-
cupation. All that had happened was
that the siblings had moved out of the
property when they became adults
and Mohammed and Shanaz Ram-
zan had stayed and looked after the
parents. On the death of the mother,
the situation in terms of occupation
continued.
The claimant argued that Farzand
Ali’s position was analogous to that of
a trustee in bankruptcy who did not
enjoy a right to occupy property
jointly owned by the bankrupt. In re-
liance on French v Barcham ([2009] 1
WLR 1124) at paragraph 35, he con-
tended that a court would “ordinarily
if not invariably” order the payment
of occupation rent. The same ap-
proach should have been adopted in
the present case and there was a pre-
sumption that occupation rent would
be payable in such circumstances.
However, French v Barcham did
not give rise to any kind of presump-
tion. There was no doubt that the
court was required to do broad justice
between co-owners and to determine
what would be fair. The position was
no different where one co-owner hadbecome bankrupt. His trustee in
bankruptcy could not be in a better
position. Mr Justice Snowden’s ap-
proach in Davis v Jackson ([2017] 1
WLR 4005) at paragraphs 61 to 64,
was correct.
The fact that a trustee in bankrupt-
cy could not reside in the property
nor enjoy any financial benefit from it
whilst the other co-owner was in oc-
cupation and the creditors could de-
rive no benefit until the trustee exer-
cised his remedies was not conclu-
sive. Furthermore, it might not
always be the case that the creditors
should be compensated for any delay
in obtaining an order for sale.
In a rising market, they might ben-
efit from that delay as a result of an
increase in the value of the property.
There was nothing to suggest that a
co-owner or that person’s trustee in
bankruptcy had to be blameworthy
in relation to the delay before its ef-
fects could be taken into account.
The judge had been entitled to
make the findings he did in relation to
conduct, to evaluate those matters
and exercise his discretion in the way
he did in order to do broad justice.
That included taking into account
the increase in the capital value of
Farzand Ali’s interest in the property
Lady Justice Andrews, agreeing,
said that the starting point in every
case was that a co-owner in occupa-
tion was not obliged to pay occupa-
tion rent merely because he was liv-
ing in the property and the co-owner
was not. Something more had to be
shown which made it just and equita-
ble that he should pay that other
owner for his use and occupation of
the property — for example, that he
was exploiting the property for his
own financial gain, or that he had
precluded the co-owner from exer-
cising a right of occupation that he
(or she) wished to exercise. The focus
should therefore be on the behaviour
of the person in occupation. The ob-servations to that effect of Mr Justice
Snowden in Davis v Jackson, at para-
graphs 61 to 64, were to be endorsed.
It followed it could not be right, as
a matter of principle, that the obliga-
tion to pay occupation rent should
turn on the reasonableness or other-
wise of the behaviour of the non-oc-
cupying party in not occupying the
property. That was the effect of
French v Barcham on which the
claimant relied and was a mischarac-
terisation of the underlying rationale
of earlier authorities.
There might be all kinds of scenar-
ios in which it was reasonable for a
co-owner of property not to exercise
his right of occupation, but it did not
follow that that automatically pro-
vided justification for making the co-
owner who was in occupation of that
property pay him rent. That ap-
proach would have the result, as a vir-
tually immutable rule, that an occu-
pation rent should be payable to a
trustee in bankruptcy, thus reversing
the default position in bankruptcy
cases. The claimant’s submissions in-
volved an extension of the French v
Barcham approach, which would re-
verse the default position in all, or vir-
tually all, other cases. There was no
special rule in bankruptcy cases and
the authority on which the claimant
relied was best regarded as turning
on its own particular facts and not as
laying down any principle of wider
application.
The question for the court was
what fairness required on the facts of
the individual case. In the present
case, the judge had taken into ac-
count all relevant factors, and con-
cluded that justice and equity did not
require a departure from the default
position. He had been entitled to do
so, for the reasons that he gave.
Lord Justice Stuart-Smith agreed
with both judgments.
Solicitors: Berry Smith LLP;
Petersons Solicitors, Newport.Court of Appeal
May 17, 2022
Ali (personal representative of Ali,
deceased) v Khatib (personal
representative of Bibi, deceased)
and others
Before Lady Justice Asplin, Lord Justice
Stuart-Smith and Lady Justice Andrews
[2022] EWCA Civ 481
Judgment April 8, 2022
Call 020 7782 5583 or email
[email protected]PIPPA SUZANNE DRACOTT WAS BORN ON MAY 28, 2020, AT BROOMFIELD HOSPITAL
IN CHELMSFORD, ESSEX, TO CLAIRE, 30, AND GARY DRACOTT, 30
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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY
COURTS OF ENGLAND AND WALES
COMPANIES COURT (ChD)
IN THE MATTER OF THE CONYGAR
INVESTMENT COMPANY PLC
AND IN THE MATTER OF THE
COMPANIES ACT 2006
NOTICE is hereby given that the Order
of the High Court of Justice (Chancery
Division) dated 10 May 2022 confirming
the cancellation of the share premium
account of the above named Company
and a Statement of Capital approved by
the Court in respect of the same
cancellation was registered by the
Registrar of Companies on 12 May
2022.
Dated: 17 May 2022
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