The answer is that the modern law is to be found in Sched 3, Para 2, LRA 2002. This is similar to, but more complex, than s70(1)(g). The new law preserves the basic principle underlying the old law, in that every type of property right in land can be an overriding interest – provided there is ‘actual occupation at the relevant time by its owner’. But, there are complications to note:

• under s70(1)(g) an interest lost its overriding status ‘where enquiry is made of such person… and the rights are not disclosed’. Under the new law the overriding interest is lost if the interest-holder ‘failed to disclose the right when he could reasonably have been expected to do so’. So, suppose there is someone occupying a property and you enquire about the extent of their interest. If the person does not reveal their interest then under the old law they would definitely not have had an overriding interest. Under the new law, however, that person will only lose his overriding interest ‘when he could reasonably have been expected’ to disclose it. Thus, the law envisages that there will be situations when it is not reasonable to expect someone to respond to an enquiry by revealing their right. Accordingly, one surprising effect of the new law is to potentially increase the number of overriding interests that can exist (and also remove the certainty that previously could apply by simply making enquiries of the person in actual occupation);
• an important restriction under the new law is that ‘actual occupation’ does not apply to someone ‘whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition’. Thus, the property interest of someone whose occupation was not obvious on reasonably careful inspection will not be an overriding interest (unless the buyer knew of the interest from some other source). As an example, imagine a situation in which L is selling a property with vacant possession, and he does that while T is away on holiday (with all T’s possessions being hidden away). Under s70(1)(g) T would have been in actual occupation; under Sched 3, Para 2 he would not. Thus, this provision amounts to an important narrowing of the scope of ‘actual occupation’.

In summary, s70(1)(g) no longer exists. Under the new law you cannot 100% rely upon an occupier failing to disclose his interests to you (if such non-disclosure would be reasonable), but on the other hand if a person’s occupation would not have been ‘obvious’ on a reasonable inspection then they can no longer claim to be in ‘actual occupation’. © Practical Lawyer