Possession of property: Whether a claim for adverse possession succeeded where service charges were paid by another party (Malik and others v Malik – 2023)

In a family dispute over the ownership of a property, was a claim for adverse possession an abuse of process? Could the claim succeed where service charges had been paid by another party?

The background

In Malik and others v Malik [2023], a family dispute arose over ownership of a flat in Knightsbridge, London.

In a CPR Part 20 claim, the Part 20 claimant was Iftikhar, the respondent in the present case. Part 20 defendants were the appellants, comprising Vaqar (Iftikhar’s younger brother) and Fahim and Rahim (two of Vaqar’s sons).

Iftikhar issued proceedings in 1987 seeking possession of the flat after Vaqar had taken possession of it. Proceedings were stayed in December 1987. An agreement between the parties was made in 1992 in an attempt to resolve the dispute, which saw a distribution of family assets made by the siblings’ mother.

Following the bankruptcy of Fahim and Rahim in November 2022, it was agreed that bankruptcy would not prevent the hearing of an appeal from taking place.

Iftikhar issued the Part 20 claim to seek possession and mesne profits from Vaqar, Fahim and Rahim. In Vaqar’s counterclaim, he stated that Iftikhar held the flat on trust for him, or, in the alternative, that he had acquired title to the flat by way of adverse possession. Vaqar defended the Part 20 claim on the grounds that the flat had been his family home for many years, together with Fahim and Rahim.

The adverse possession counterclaim was dismissed by the court, finding in favour of Iftikhar in March 2022. The court ruled that the adverse possession claim was an abuse of process and lacked necessary intent. Vaqar, together with Fahim and Rahim, appealed in respect of the adverse possession point.

The decision

The High Court Chancery Division considered the adverse possession claim points and allowed Vaqar’s appeal.

1. Was Vaqar’s claim for adverse possession an abuse of process?

• The appeal was allowed on this point. The court found no evidence from Vaqar that he would defend an adverse possession claim in future proceedings, therefore making the issue an abuse of process in present proceedings, and the court allowed the appeal in respect of abuse of process.

2. Whether a claim for possession by Vaqar could succeed where service charges were paid by Iftikhar

• Vaqar had requested that Iftikhar pay the service charges. The first instance court had found that this demonstrated a lack of intent to possess the flat, concluding that an intention to possess carried an acceptance of the obligation to pay service charge.
• Vaqar’s appeal against this decision was allowed.

3. Whether the adverse possession claim failed as a result of a licence to occupy granted by Iftikhar

• This issue assessed whether Vaqar had occupied the flat pursuant to a licence to occupy which may have been granted by Iftikhar, or by their mother, in 1992 as part of the dispute agreement, or whether Vaqar believed he had occupied on such a basis.
• The court found that Iftikhar could not claim at this point that Vaqar had occupied the flat with his consent, as this had not been his pleaded case at trial. Further, the issue of consent had not arisen as it was common ground that Vaqar’s occupation had, in fact, not been consented to by Iftikhar. The court considered whether Iftikhar could raise this issue now as an area of dispute, assessing whether the evidence at trial would have been affected by Iftikhar’s presentation of the point.
• Had Iftikhar pleaded this point during trial, new evidence would have been required and cross-examination of Iftikhar and Vaqar approached differently.

Further, the court found that lifting the stay on Iftikhar’s earlier 1987 proceedings would not breach the terms of the 1992 agreement. The court lifted the stay and gave judgment for Iftikhar.

Advice and action for landlords

This was very much a decision which turned on specific facts in the case. The property carried a significant value, and was the subject of dispute between the family for many years.

During this appeal, the payment of service charge by Iftikhar was found not to have affected Vaqar’s claim for possession of the flat and Iftikhar was unable to raise new issues on appeal which had not been heard or evidenced during trial.