Vacant Possession in UK Law

It is not for us to question the observation that the power to order a sale under s.17 of the Act of 1882 does not include a collateral power to order that vacant possession of it be given on or for the purposes of the sale. One may say, broadly, that it would be surprising if an order that in effect a spouse should give vacant possession of a matrimonial home under TOLATA were to be made in circumstances in which the applicant could not have secured an occupation order.

To take that action at that juncture in my judgment was, in the context of relationship of debtor and creditor, less than honest: it was sharp practice, and not the less so because he was advised that he had power to grant the lease. It was in my judgment a transaction made with intent to defraud the Bank within Section 172, and would have been within 13 Elizabeth, chapter 5.

Thus, it was submitted, the transaction plainly conferred, and was intended to confer, on her significant enhanced benefits beyond the rights granted by the tenancy agreement itself,for which enhanced benefits she did not pay.

Accepting that she agreed to pay for her yearly tenancy a rent which was the best rent reasonably obtainable for that tenancy viewed in isolation, and that she undertook the other tenant's obligations imposed by the tenancy agreement, it seems to me nevertheless clear that, when the transactions are viewed as a whole, the benefits which the lst defendant thereby conferred on her were significantly greater in value, far greater in value, in money or money's worth than the value of the consideration provided by her.

The power to order a sale of the former matrimonial home will not include a power to order possession of it. Nor should it do so during the subsistence of the marriage. To make an order, as the judge did here, for the husband to deliver up vacant possession is to make an order restricting or terminating the rights of occupation which are conferred upon the husband by virtue of Section 1 of the Matrimonial Homes Act 1983.

The court has a very wide discretion in satisfying an equity arising under the doctrine of proprietary estoppel. That discretion includes power to award a fixed sum charged on the property.

The question may be asked: what is to happen when the two fall out, as they have done here? The son is the legal owner and he holds it on the statutory trusts for sale. The mother is entitled to rely on her equitable interest as tenant in common which is preserved by two sections of the Law of Property Act 1925.