Moreover, there is no consistent approach to what constitutes a “substantial contribution”, which is clearly evidenced in the approach to determining a beneficiary’s share in the proceeds of the sale under constructive trust . The decisions of Gissing v Gissing and Midland Bank plc v Cooke suggest that the share can be inferred by conduct, which intrinsically lends itself to an ad hoc case by case basis determination, which contradicts legal certainty.
Accordingly, if Maria is found to have rights under either a resulting or constructive trust she will potentially have an overriding interest as she is in actual occupation. The definition of “actual occupation” varies according to the facts of each individual case and the nature of the premises . Moreover, occupation must have been “obvious on a reasonable and careful inspection of the land at the time of disposition ”. Alternatively, the case of Chhokar v Chhokar also asserts that the requirement of actual occupation is satisfied by the symbolic presence of inanimate objects.
It is evident from the facts that Vincent is clearly aware of Maria’s occupation, therefore the issue of “actual occupation” notice will not be contentious. In summary, notwithstanding the Vincent’s enforceable legal rights under the contract for sale with Polly, Maria’s occupation raises issues regarding third party proprietary rights. If she is found to have a proprietary right under either constructive or resulting trust, her beneficial interest along with actual occupation will constitute an overriding interest.
This will be binding on Vincent as he has actual knowledge of Maria’s occupation and therefore should make requests regarding the nature of her occupation and interest in the property.
BIBLIOGRAPHY
Goo, S. H. & Lee, A. (2003). Land Law in Hong Kong. 2nd Edition Lexis Nexis Butterworths. Nield, S (1996). Hong Kong Land Law. 2nd Edition Longman Sihombing, J. & Wilkinson, M. (2002). A Student’s Guide to Hong Kong Conveyancing. 4th Edition LexisNexis Butterworths 2002. R J Smith, (2003) Property Law. 4th Edition Longman. www. hklii. org/hk/legis/ord/219.
