The High Court has given judgment in a case of interest to property lawyers – El Massouri v Omani Limited [2024] EWHC 534(Ch). Hugh Jackson acted for the successful Claimant.
The dispute centred around possession of the third floor of a residential property in Earls Court, London – the Court had to decide issues of proprietary estoppel in relation to adverse possession under paragraph 5 of Schedule 6 to the Land Registration Act 2002, and whether the Defendant could be entitled, in principle, to a possession order if estoppel was not made out.
The facts are straightforward: the Claimant and her late husband had built a mansard on top of their leasehold flat, with planning permission, in 2002 in ignorance of the existence of a registered lease for space immediately above their flat. Although the existence of the registered lease had been discovered by them in 2006, it was not until 2020 that the then owner of the lease laid claim to possession.
The Court held that inactivity by persons connected with the Defendant and the former freeholder associated with the Defendant, rendered it estopped from seeking to dispossess Ms El Massouri.
The alternative finding by the Court is of particular note: the lessee under the Defendant’s registered lease had never been, and could never have been, in possession of the land demised. It could not be said to have been ejected from it and it could not go into possession. It could not therefore be entitled to the remedy of an order that the Claimant give it possession; the correct remedy would have been an injunction for which damages in lieu would have been appropriate.
The case underscores the importance of asserting property rights, including keeping up-to-date the address for service at the Land Registry, and the potential consequences of failing to do so. It illustrates also the Court’s commitment to preventing unjust outcomes through the application of proprietary estoppel principles.
The case was reported in the Times twice, the Telegraph and the Daily Mail.