A beneficial tenant in common who continued to live in a property following the voluntary bankruptcy of her husband could be required to pay rent to the bankrupt’s estate for that continued occupation.

This was held in the Chancery Division on appeal by Jeremy French, trustee in bankruptcy of Peter Barcham, husband of the second respondent, Bernadette Barcham, against a prior dismissal of his application to be credited with rent from Mrs Barcham for her continued occupation, following her husband’s bankruptcy, of a property they owned.

The lower court judge had held that anyone seeking compensation for a restriction or exclusion of the right to occupy trust land must fall within the constraints set out in Sections 12 - 15 Trusts of Land and Appointment Act 1996. As the trustee was not a beneficiary entitled to occupy the land under Section 12, then he was not entitled to charge rent.

But Mr Justice Blackburne said these sections did not provide an exhaustive regime for compensation for exclusion of a beneficiary from occupation of property held subject to a trust of land and that the district judge had been wrong to find that as the trustee could not establish an entitlement to compensation under section 13(6), his application to be credited with an occupation rent necessarily failed.

Nothing said by the House of Lords in Stack v Dowden [2007] 2 AC 432 led to a different view.