Hodgson v Marks [1971] Civ 8 is an English land law

English land law

English land law concerns the law of real property in England and Wales. Because of its heavy historical and social significance, land is a major part of the wider English property law....

 case concerning the right of a person with an equitable interest in a home to remain in actual occupation, even if a bank has a charge and is seeking repossession.

Facts

Mrs Hodgson bought 31 Gibbs Green, Edgware

Edgware

Edgware is an area in London, situated north-northwest of Charing Cross. It forms part of both the London Borough of Barnet and the London Borough of Harrow. The area is identified in the London Plan as one of 35 major centres in Greater London....

, Middlesex

Middlesex

Middlesex is one of the historic counties of England and the second smallest by area. The low-lying county contained the wealthy and politically independent City of London on its southern boundary and was dominated by it from a very early time...

 in 1939. After being widowed in April 1959 she took Mr Evans as a lodger, and in June 1960 transferred him her freehold for free. He told her she should give him the deeds so her nephew, in the foreign service, would not return and turn her out. He also took money to invest on her behalf. He registered himself, and sold it to Mr Marks, who gave a charge to Cheltenham & Gloucester

Cheltenham & Gloucester

Cheltenham & Gloucester plc is a mortgage and savings provider in the United Kingdom, a subsidiary of Lloyds Banking Group. C&G specialises in mortgages and savings products. Previously, C&G was a building society, known as the Cheltenham and Gloucester Building Society. C&G is one of the largest...

 Building Society. Mrs Hodgson, still living there, found out and claimed a declaration that Mr Marks should transfer his freehold to her, free from the building society charge. Mr Evans had held on trust for her, and that bound Mr Marks and the building society.

High Court

Ungoed-Thomas J held that Mrs Hodgson did not have the right to stay in her home. He found that Mrs Hodgson had always intended for Mr Evans to hold any title on trust for her, despite any signed writing (LPA 1925 section 53(1)(b) declaration of trust in land requires writing, but (2) does not affect resulting, implied or constructive trusts). She reposed trust and confidence in him. The key point was that the requirement of writing could not be used to let a fraud be perpetrated. But he held that Mrs Hodgson nevertheless lost because she was not in ‘actual occupation’.

Court of Appeal

Russell LJ found in favour of Mrs Hodgson, but on the basis that there was a resulting trust, rather than that statute should not be used as an instrument of fraud. She had an equitable proprietary interest through a resulting trust, and this interest came before the building society's charge.