Brown Holliday & Clements secured an emphatic win for the Claimant following a 4-day High Court trial in Maria Jesus El Massouri v Omani Estates Limited [2024] EWHC 534 (Ch). The case has been widely reported in the press, with articles in The Times and The Telegraph amongst other papers. The judgment concerns important and evolving areas of law: the new adverse possession regime under the Land Registration Act 2002 (LRA 2002), estoppel, and the remedies available to a party who has a title to land which is not capable of occupation. Whilst the Defendant sought permission to appeal, permission was refused by the Court of Appeal by Rt. Hon. Lord Justice Lewison in July.
In brief, the underlying facts were as follows: the Claimant and her late husband built a mansard on top of their second floor flat with planning permission in 2002. They were unaware, however, of a registered lease of airspace immediately above their flat, within the area they had built into. The existence of that registered lease was discovered in 2006; in 2019 the Claimant applied to the Land Registry to seek adverse possession of the space, but withdrew the application in 2021 following an objection from the Defendant.
Interim injunction
The claim was issued in June 2022, with an urgent application for an interim injunction, without notice. The injunction was sought in response to a number of serious break-ins to the Claimant’s tenanted property, involving the removal of the front door, smashing off CCTV cameras, erecting a partition between floors and obstructing access to two studio flats by screwing wooden blocks to the doors. A without notice injunction was granted on 10 June 2022, and at the return date hearing on 30 June 2022 before Mr M H Rosen KC, [2022] EWHC 2638 (Ch), the injunction was continued until trial.
The underlying proceedings
One of the central issues for trial was whether the Claimant should lose the upper storey of her flat, a third floor extension over which the Defendant held an airspace lease. The Claimant sought various declarations relating to the third floor extension, including with respect to adverse possession and estoppel. The Defendant counterclaimed for possession.
The judgment provides a helpful discussion of the law where a party (in this case the Claimant) defends a claim to possession within the scope of the new adverse possession rules under the LRA 2002. In addition to the defences listed under section 98 of the LRA 2002, section 98(6) states, “The defences under this section are additional to any other defences a person may have”; and one defence that was recognised as being available in this case was proprietary estoppel.
An estoppel may arise in circumstances where (1) an owner (O) induces, encourages or allows the Claimant (C) to believe that C has or will enjoy some right or benefit over O’s property, (2) C relies on that to their detriment, and (3) then O seeks to take advantage by denying C the benefit they expected to receive (see Megarry & Wade, Law of Real Property 9th ed. at 15-001 cited at paragraph 76 of the judgment). In such a scenario, the owner may be estopped from asserting their rights.
The judge acknowledged that estoppel is a flexible doctrine which can take the form of acquiescence and standing by; and that the concept of estoppel aims to prevent unconscionable behaviour. But the judge made clear that the threshold for an estoppel is high and cannot be found simply by inaction, “something more is required” (paragraph 83).
In this case, the judge found, amongst other things, that (a) the then freeholder Mrs Baffour-Awuah (who had been in a relationship with Mr van Hoogstraten in the 1980s and whose children are directors of the Defendant company) had been given notice of the proposed extension works by the Claimant, and the relevant parties had stood by for more than 27 years; (b) there had been opportunities to object to the Claimant’s proposed works (which they did not do); and (c) both the freeholder and the owners of the airspace lease had avoided obligations arising from their property interests (paragraphs 81-93). The Claimant succeeded in obtaining declaratory relief on several issues, including with regard to adverse possession and an estoppel. A final injunction was also given.
In the event the judge was wrong, he went on to consider the appropriate remedies where a party claims possession of a property which is not capable of occupation. In making his decision, the judge made reference to the decision of Baroness Hale in the Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, which reads:
“It seems clear that the modern possession action is there to protect the right to physical occupation of the land against those who are wrongfully interfering with it. The right protected, to the physical occupation of the land, and the remedy available, the removal of those who are wrongfully there, should match one another. The action for possession of land has evolved out of ejectment which itself evolved out of the action for trespass.”
Considering the principles of ejectment and occupation, and the Defendant’s inability to access the airspace in question, the judge held that the Defendant would not have been entitled to a Court Order for possession had he found that it was not estopped from asserting its rights. It followed that, even if the judge was wrong on the estoppel, the Defendant would not be entitled to an injunction. The judge held that the appropriate remedy in that situation would have been damages in lieu of an injunction, assessed on the basis of a hypothetical negotiation (paragraphs 106-127).
Appeal
On 26 July 2024, Rt. Hon. Lord Justice Lewison refused permission to appeal, concluding that the trial judge correctly summarised the law, and that the judge’s factual findings were clear and well-reasoned.
The full judgment can be read here (source of document: BAILII).
