13 April 2023
RED Alert - April 2023 – 5 of 6 Insights
Welcome to the second of our RED Alerts of 2023.
Also featured in this month's update:
Malik v Malik [2023] EWHC 59 (Ch)
The Court considered whether a squatter who asked the owner of the property to pay the service charges due under the lease, could be successful in its claim for adverse possession. Ultimately, the adverse possession claim was unsuccessful.
The proceedings concerned a long running dispute between two brothers, regarding the ownership of a flat in Knightsbridge.
Iftikhar Malik purchased a flat in 1978. Whilst Iftikhar was out of the country, his brother Vaqar Malik took occupation of the flat in January 1987. Iftikhar issued a possession claim which was defended on the basis that Vagar claimed there was a family partnership which owned the flat, and that he was entitled to occupy it on that basis.
The proceedings were stayed but the family's attempts to settle the dispute failed. Iftikhar applied for the stay to be lifted in 2011, but this was refused. Iftikhar then started a new possession claim in 2018. Vaqar remained in occupation of the flat throughout this period. During his occupation, Vaqar asked Iftikhar to continue paying the service charge, and Iftikhar did so.
Vaqar defended the 2018 claim on the basis that the flat was held on constructive trust for him and, in the alternative, he was entitled to be registered as proprietor of the property due to his 12 years’ adverse possession prior to October 2003.
County Court
The Court held at first instance that:
High Court
Vaqar appealed successfully to the High Court on the adverse possession issues. Bacon J held:
Bacon J therefore allowed the appeal, but ordered that the stay on the 1987 possession action should be lifted, and gave summary judgment, granting possession of the flat to Iftikhar. As Vagar had not been in possession of the property for the requisite period at this time, there could be no adverse possession defence in that action.
Whilst the claim for adverse possession was unsuccessful in this instance, it is clear from the judgment that payment of service charge, or presumably any other rent, by the registered proprietor (at the request of the occupant no less) will not prevent a claim for adverse possession.
13 April 2023
13 April 2023
13 April 2023
13 April 2023
by Emma Archer
by Emma Archer