An appellant’s successful appeal to allow adverse possession to be argued was thwarted by the respondent’s application successfully lifting a stay on possession proceedings commenced before adverse possession accrued.
In Malik and another v Malik [2023] EWHC 59 (Ch); [2023] PLSCS 18, Mrs Justice Bacon heard an appeal in a long-running family property dispute concerning 7 South Lodge, 245 Knightsbridge. This flat was purchased in 1978 by Iftikhar Malik (the respondent). Until a major family breakdown in 1987 it had been used by various family members including the respondent’s brother Vaqar (the appellant). In 1987 the appellant, his then wife and two sons took up sole occupation and refused entry to the respondent (among others). In 1987 possession proceedings were commenced by the respondent. Proceedings were also commenced by the appellant, who alleged that the flat was an asset of the family partnership. The 1987 possession proceedings were stayed on terms. There were proceedings overseas and attempts to reach family agreements. In 2012 the respondent applied to have the stay on the 1987 proceedings lifted. This application was successfully opposed by the trustee in bankruptcy (the appellant had been made bankrupt on his own petition) but that 2012 decision was clear that the 1987 action was not dismissed.
In 2017 the freeholder of the flat commenced proceedings against the appellant and the respondent for breach of covenant. The appellant contended that the flat was held on trust for him absolutely by the respondent. This triggered a Part 20 possession claim by the respondent which ultimately led to the decision appealed. The transcript of the 2012 decision did not reveal a clear disavowing of an intention to assert adverse possession and the county court had therefore been incorrect to find that raising it was an abuse. The county court judge also erred in finding that possession of a leasehold property carries an acceptance of responsibility to pay the service charge of a flat.
These successes were overshadowed. As well as an unsuccessful respondent’s notice, the respondent issued an application applying to lift the stay on the 1987 proceedings, which proceedings predated the accrual of any rights acquired by adverse possession. The judge applied the three-stage analysis set out in Denton v TH White [2014] EWCA Civ 906 and lifted the stay, thereby preventing the respondent from being deprived of a valuable property which the appellant had wrongfully possessed and occupied from 1987 onwards rent-free.
Elizabeth Haggerty is a barrister
