Occupancy in UK Law

The question in every such case must be one of fact, viz., whose position in relation to occupation is paramount, and whose position in relation to occupation is subordinate; but, in my opinion, the question must be considered and answered in regard to the position and rights of the parties in the premises in question, and in regard to the purpose of the occupation of those premises.

A familiar instance of this competing occupancy is the case of the lodger. In view of the frequently fleeting nature of the occupancy of a lodger, the convenience of this view, indeed the necessity for it, is obvious; but it purports to be based upon the paramountcy of the landlord's occupation, arising from his control of the front door and his general control over and right of access to the lodgers' rooms for the proper conduct of the lodging house.

It is evident, therefore, that there will not be occupation in the context of rating unless some use is made of the hereditament in the course of the relevant year. "Use" is not a word of precise meaning, but in general it conveys the idea of enjoyment derived by the user from the corpus of the object enjoyed.

If this is right, the pieces of the jigsaw fit together reasonably well. A purchaser or mortgagee inspects and enquires before completion, in the established fashion. If it does not, then subsequent entry of a person into occupation before the transfer or mortgage has been registered (and "completed" for the purposes of section 19) does not have the consequence of creating an overriding interest under paragraph (g) in relation to that freehold or mortgage.

The words "dwell" and "dwelling" are not terms of art with a specialised legal meaning. They are ordinary English words, even if they are perhaps no longer in common use. They mean the same as "inhabit" and "habitation" or more precisely "abide" and "abode", and refer to the place where one lives and makes one's home.

Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier" and the person coming lawfully there is his "visitor": and the "occupier" is under a duty to his "visitor" to use reasonable care.

In all the cases where an occupier has been held to be a licensee there has been something in the circumstances to negative any intention to create a tenancy, such as a family arrangement, an act of friendship or generosity, or such like. In such circumstances it would be obviously unjust to saddle the owner with a tenancy with all the momentous consequences that that entails nowadays when there was no intention to create a tenancy at all.