Husband and wife joint owners of home - husband's interest passing to trustee - couple continuing to live in home with wife paying mortgage - occupation rent to be sent off against mortgage payments for purposes of equitable accounting

In re Byford, deceased: ChD (Mr Justice Lawrence Collins): 10 June 2003

The bankrupt and his wife were the joint owners of their matrimonial home.

On his bankruptcy, the bankrupt's share of that property vested in his trustee.

For 11 years the trustee took no steps to realise his interest in the property and the bankrupt and his wife continued to live there together.

When the trustee did seek an order for sale, the judge held that the bankrupt's wife was entitled to credit for the mortgage interest payments she had made since the bankruptcy but that the trustee was entitled to a set-off for an occupation rent.

The wife appealed.

Roger Bartlett (instructed by Shah & Burke) for the wife; Adam Deacock (instructed by Darbys, Oxford) for the trustee.

Held, dismissing the appeal, that there were a number of exceptions to the general rule that one joint owner did not have to pay an occupation rent to the other merely because he was in sole occupation, one of which was where one joint owner had excluded the other; that in a typical case, one of the parties was actually or constructively excluded but the fact that there had not been forcible exclusion was not conclusive; that the court would order the payment of occupation rent where it was necessary to do justice between the parties; and that, in the circumstances, the trustee was entitled to a set-off for occupation rent.