Welcome to the second of our RED Alerts of 2023.

Also featured in this month's update:

• No more peeking: Supreme Court decision in landmark Tate nuisance claim.
• Peril at Picnic House: email exchange affects transfer of property to ex-partner.
• Pay now, argue later: Supreme Court decision on conclusiveness of service charge certificates.
• Supreme Court solution to service charge reapportionment.
• Japanese Knotweed: Untying the knot on liability for "blight"?

Malik v Malik [2023] EWHC 59 (Ch)

Summary

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 facts

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.

The decision

County Court 

The Court held at first instance that:

• The flat was never held on constructive trust for Vaqar.
• It was an abuse of process for Vaqar to assert adverse possession of the flat, given that Vaqar had told the Court in 2012 that he had no such defence.
• Even if Vaqar had been entitled to assert adverse possession, it would have been unsuccessful as the request that Iftikhar pay the service charge had demonstrated that he did not have the necessary intention to possess (which would be required for a successful adverse possession claim).
• Vaqar was ordered to pay mesne profits for his unlawful occupation of the flat for the 6 years prior to issue of the claim.

High Court

Vaqar appealed successfully to the High Court on the adverse possession issues. Bacon J held:

• Vaqar had made no clear statement to Mr Jarvis QC in 2012 that he would not rely on an adverse possession defence if Iftikhar started a new claim, and Vaqar was therefore entitled to rely on adverse possession.
• The obligation to pay service charges is an incident of ownership of the lease, not of possession. As payment of the service charges is not a necessary incident of possession, then an intention to possess does not require the payment of the service charges; it is irrelevant.

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. 

Our comment

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.