[2] The case turned on facts including that the defrauded owner's furniture and personal effects were still there; she made relatively brief, supervised visits about once a week to check out the property and collect post; but she was incapable of living safely in the property and at the relevant date the powers exercised under the terms of "sectioning" otherwise prevented her from leaving her mental health hospital.
In 2008 the fraudster replaced her mortgage loan with one from Link Lending and then defaulted, and the lender claimed possession, arguing Bustard had not been there for over a year.
In short, what mattered, in the view of the judge, was the combined manifestation of her occupation, her continuing intention to occupy and the reason that prevented her from living at home.
27.Whether Ms Bustard was in "actual occupation" of the property at the relevant date was an issue on which the trial judge had to make an evaluation based on his findings of primary fact.
The trend of the cases shows that the courts are reluctant to lay down, or even suggest, a single legal test for determining whether a person is in actual occupation.
As for his application of that law to the facts, the question for this court is whether the judge could properly and reasonably conclude that Ms Bustard was in actual occupation of the property at the relevant date.
The assistance given in the authorities is in clarifying the legal principles, exploring the range of decisions available to the court and identifying the factors to which weight should be given.
The judge was, in my view, justified in ruling, at the conclusion of a careful and detailed judgment, that Ms Bustard was a person in actual occupation of the Property.
His conclusion was supported by evidence of a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere, which was satisfactorily explained by objective reasons, and of a persistent intention to return home when possible, as manifested by her regular visits to the property.
These errors included constructive notice of the fraud firmly fixed to the mortgage lender, particularly that under land registration, the headline details of the transaction by the proposed borrower showed their ownership was recent and the price of £100,000 was a slight undervalue.
Neither did the court consider other textbook errors in the two successive lenders' decisions to lend to the borrower who, without short of actual notice, was the fraudster against the previous, very vulnerable, registered owner.