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Adverse Possession: Whether a Failure to Speak Prevented a Defendant from Asserting Title to a Loft Space (Massouri v Omani Estates Ltd – 2024)

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Where an occupier extended her property into loft space over which a lease has been granted in favour of another party, does that party’s failure to speak prevent them from asserting their title?

The background

In Massouri v Omani Estates Ltd [2024], the claimant occupied a second-floor flat in a building under a 99-year lease. Access via an internal staircase to the roof space was within the control of the claimant’s demise.

A lease had been granted to the defendant’s predecessor in title for the development of a third floor flat within the roof space above the claimant’s flat. The claimant did not receive any notice of the lease at the time it was granted and, with no knowledge of the existence of the lease, subsequently applied for permission to extend her flat into the loft space. The freeholder of the building then agreed to the sale of the freehold to a leaseholder-controlled company, to which the defendant was not a party.

The extension was completed in 2002 and the claimant then applied for permission to create a roof terrace in 2006. At this point, the claimant was advised of the lease in favour of the defendant and made attempts to contact the defendant’s predecessor in title in order to resolve the situation such that she could then sell her flat.

The defendant’s predecessor assigned the lease to the defendant in 2017, attempting without success to give notice of the assignment. The claimant applied to the Land Registry for registration of the extended flat in 2019, relying on a claim to adverse possession under Sch.6 of the Land Registration Act 2002.

The claimant then withdrew the application following an objection by the defendant, and the defendant then attempted to recover possession of the area. The claimant issued proceedings, seeking:

  1. An injunction in respect of the trespass of the defendant; and
  2. Declarations that she had a claim to adverse possession of the roof space and that this prevented the defendant from asserting title to it.

In a counterclaim, the defendant sought an order for possession and a declaration as to the extent of its demise.

The decision

The High Court found that the defendant was estopped from asserting its title to the roof space, and refused to grant an order for possession in favour of the defendant.

The defendant, and the freeholder which had granted the lease to the defendant, were not acting independently as all parties were associated with one family. The family had taken no action following receipt of the claimant’s notice of her intention to extend her flat into the roof space, and the extension was considered to be an accretion – a gradual increase – to her demise which had not been objected to by the defendant or the associated family, preventing the defendant seeking possession until the claimant’s lease had expired.

The lease granted to the defendant had not demised an appropriate access to the demised roof space, and the court could find no evidence of either the factual possession of the defendant, nor an intention to possess. Therefore no order for possession was granted in favour of the landlord.

Advice and action for landlords

This decision establishes some useful points, particularly in relation to claims of possession over roof and loft spaces. The associated family in this case, although not agents or other beneficiaries in the leasehold arrangements, had taken no action, which was sufficient to find an estoppel.

Referencing Sch.6 of the Land Registration Act 2002, where a defendant is making an adverse possession claim but is reliant on an estoppel in order for that claim to succeed, the court will exercise its discretion as to the remedy granted to satisfy the estoppel.

The High Court’s decision is also a useful reminder that in order to succeed, a claim for possession requires evidence of both factual possession and an intention to possess.

The High Court found that the defendant was estopped from asserting its title to the internal roof space. The claimant’s extension was considered to be an accretion – a gradual increase – to her demise which had not been objected to by the defendant.

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