Family Law Hub

Akhtar v Hussain [2012] EWCA Civ 1762

  • In a tweet: Consideration of when occupation rent is payable
     
    Summary: Mr Hussain ("H") and Ms Akhtar ("W") lived at a property, 18 Boyd Avenue, in Bradford Moor. The couple had purchased the  property with a mortgage in 1993 and it had been transferred into their joint names - they had been joint tenants both in law and in equity. The couple had been cohabiting together at that time and later had gone through a Muslim marriage ceremony. The relationship broke down in 1997 and W left the property together with the couple's two children. H continued to live in the property and, when he began a new relationship, his new partner moved in; they went on to have three children of their own. 
     
    A considerable time after she had left (although the judgment is not clear exactly how long), W sought an order for sale together with an equal distribution of the net sale proceeds. H contended that he was the sole beneficial owner of the house and relied upon a statement he said W had made when she left that she renounced her share of the property. In the alternative, he argued that W was estopped from asserting that she had any beneficial entitlement to the property. At first instance, H's account of events was rejected and the judge held that there had been no such conversation. Accordingly, the judge found that H and W held the property 50:50 and ordered that the property should be sold when H's youngest son turned 18 years old. He also ordered that H should pay W an occupation rent of £350 per month from 1 January 2012 until sale, with the sum to come out of H's share of the net sale proceeds. 
     
    H appealed against the order that he pay W an occupation rent. He had been given permission to appeal that point on the grounds that the trial judge had not appeared to have made allowance for the fact that H owned part of the beneficial interest in the property and should therefore only be paying occupation rent in relation to W's half share in it i.e. rather than paying £350 per month, he should be paying £175 per month. 
     
    Held:  H's appeal was allowed in part.
     
    Lady Justice Black gave the leading judgment. She concluded that the judge had erred by not making a discount of 50% and allowed that part of H's appeal. However, she dismissed H's appeal against the order itself, holding that occupation rent was undoubtedly potentially payable and that the only issue here was how much the sum should be.

Case note, published: 21/01/2013

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Published: 21/01/2013

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