Malik and others v Malik and others 2023


[2023] EWHC 59 (Ch) Bacon J

An unauthorised occupier of land may be able to acquire title to the land by adverse possession where they can demonstrate that they have had both factual possession of the land and the requisite intention to possess for a 12 year period: J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 A.C. 419. Possession with the consent (whether express or implied) of the owner can never amount to adverse possession: Pye.

In 1977, IM had purchased a flat in London. He lived there for short periods of time but also lived in Pakistan. In 1987, when IM was in Pakistan, one of his family members, VM, moved into the flat and refused to allow IM to have access. Later that year, IM issued a possession claim and VM defended it on the basis that the flat was, in fact, held pursuant to a family arrangement which entitled him to occupy it. Those proceedings were stayed to enable settlement talks and mediation, which were unsuccessful. In 2012, IM applied to lift the stay but that application was refused by the High Court, although the underlying claim was not struck out.

In 2017, in further litigation between the parties, VM contended that he was the owner of the flat by virtue of adverse possession. The trial judge rejected the adverse possession argument, holding: that it was an abuse of process to make that argument; and, in any event, that VM had not demonstrated the necessary intention to possess; in particular, VM had asked IM to pay the service charges due under the lease which the judge held negated an intention adversely to possess the land.

The High Court allowed an appeal. There was no clear or unequivocal representation by VM that he would never rely on adverse possession so that it was not an abuse of process to raise the point. It could not have been raised in 1987 because VM had not been in possession for 12 years at that stage. Asking IM to pay the service charges was not necessarily evidence that VM did not have the intention to adversely possess the land; the payment of service charges to the freeholder did not cast light on what VMs intention was vis-á-vis his occupation of the land. That did not mean, however, that VM succeeded because the 1987 claim was still outstanding. The resolution of the case turned on that possession claim; the stay was accordingly lifted. There was no merit to any defence to the 1987 claim and an order for possession was made in favour of IM.