Although the Land Registration Act 2002 limits the ability of a person to obtain registered land on the basis of a claim to adverse possession it allows other defences such as that of proprietary estoppel to be relied upon and the claimant successfully established this defence.
In El Massouri v Omani Estates Ltd [2024] EWHC 534 (Ch), the court considered whether the claimant was able to establish a proprietary estoppel such that the defendant was prevented from denying her right to possession of the third floor of 93 Finborough Road, London, SW10 (the building), a space of which the defendant was the lessee. The court also had to consider whether the defendant was liable for acts of trespass committed by its agents.
The building was divided into four flats held under long leases. The claimant and her late husband (the el Massouris) were the long leaseholders of the flat on the second floor of the building with its roof above them. Wrongly but honestly they believed that (subject to planning permission) they were entitled to extend their flat and build at roof level, creating a third floor. In 1990 the freehold was acquired by a woman who was then known as Mrs Rosemary Hamilton and who was in a relationship with Nicholas van Hoogstraten and the mother of two of his children. In 1993 (with the knowledge of the freeholder) the el Massouris obtained planning permission. There were then allegations of freeholder breaches of repairing covenants, attempts to forfeit and in 1996 the building’s lessees commenced the process of acquiring the freehold. After the lessees’ enfranchisement application but before executing transfer and unbeknown to the claimant (or indeed any of the lessees of the building), on 31 October 1996 the freeholder granted a 199-year lease (the Frimpong lease) of the airspace above the second floor of the building to a Mr Frimpong, being a person with close connections to the Hamilton family. It was on terms substantially less onerous than the building’s other leases and the court was satisfied that it was granted to create an interest which the Hamiltons could later use to their advantage. On 7 January 1997, it was registered.
Following further planning dealings (of which Mrs Hamilton was also aware) the third floor was constructed in 2001-2. It was not until 2006 when they made a planning application to erect balcony railings that the El Massouris found out about the Frimpong lease but efforts to trace Mr Frimpong failed. In 2017, Mr Frimpong disposed of the Frimpong lease to the defendant, being a company controlled by the Hamilton children.
In the proceedings before the court, the claimant sought declarations that she and her late husband had been in adverse possession of the third floor at all times since 2002 and that the defendant was estopped from claiming an order for possession or trespass. As an alternative, she asserted that the Frimpong lease was not capable of demising the third floor and therefore there should be no order for possession. The defendant sought possession and damages for trespass.
The claimant was unable to satisfy the adverse possession requirements of s98 of the 2002 Act as she could not show the required 10 years of adverse possession believing that the land belonged to her. However, s98(6) allows other defences which a person may have to raise and her assertion of proprietary estoppel was successful. Although the inactivity of the defendant does not of itself give rise to an estoppel or support a finding of unconscionability, the facts of this case were such that the estoppel was made out. Interestingly, even if the claimant had not been able to establish the estoppel, the court agreed that the defendant would not have been entitled to an order for possession. Neither the defendant nor its predecessor had ever been in possession and there was no question of ejectment. The Frimpong lease gave no right of access to the third floor and the court also doubted whether the defendant could establish the necessary animus possidendi given the very limited steps it took to assert its title prior to 2020.
In the early part of 2022, agents of the defendant not only asserted various claims but also attended the building, doing such things as removing the door to the claimant’s flat, erecting partitions, removing CCTV, writing to the occupiers of the rooms on the third floor advising them to vacate and erecting scaffolding. Although it was unclear whether these actions were outside the agent’s instructions, the court held that the defendant was liable for the acts of people who were at the building as its agents, seeking to assert its purported rights. Damages were awarded against the defendant.
Elizabeth Haggerty is a barrister
