This is a recent decision (El Massouri v Omani Estates Ltd) regarding an application for a loft conversion in a block of leased flats which ended in court; neither of the tenants knew the legal position of the other party and both had plans for the use of roof space - but who had what legal right?
This case was first reported in the Mirror on 15 February 2024 (“Criminal tycoon son's legal fight over claims family's firm used 'armed thugs' in roof extension row”).
Extract from the Mirror article with minor grammatical changes, and a focus on the civil factual background of the case: “Omani Estates Limited, a property company claimed it owned a loft space which Maria El Massouri extended her flat into. The High Court heard Mrs Massouri and her husband obtained planning permission in 2002 to build a mansard roof extension on top of their second floor flat in Chelsea, West London. Omani Estates Ltd objected when she applied for adverse possession – or squatters’ rights – of the area covered by her extension for legal reasons in 2020. Backing its claim to ownership of the loft area, the company pointed to the terms of a lease made in 1996 which it bought in May 2017.
Mrs Massouri also says workmen who were sent by Omani Estates Ltd entered her flat using scaffolding and installed a horizontal internal wooden barrier, blocking the stairs leading from her flat to the loft room. She was suing the company, seeking damages for trespass and for a declaration that she owns the loft space via adverse possession. Omani Estates Ltd are counterclaiming, asking for an order stating that it owns the loft space and that Mrs Massouri is the “trespasser”. They also deny the company ordered “thugs” or anybody else into her flat, while admitting erecting scaffolding, removing a door and installing the wooden “partition” across the stairs.
Judge Nicholas Caddick KC reserved judgment on the case to a later date.”
Read on.......
The legal facts:
The defendant’s predecessor had been granted a lease to build a third floor flat in the loft space above the claimant’s flat.
At the time the defendant was granted the lease the claimant was already the registered proprietor of a 99-year lease of the second floor flat in the building which controlled access over the internal staircase to the roof space. No notice of the grant of the lease of the third floor to the defendant’s predecessor was given to her as required under the Landlord & Tenant Act 1987 (s5).
The claimant, unaware that the freeholder had granted a lease of the roof space above her flat, applied for permission to create a mansard in the roof space granted by the defendant’s lease shortly before the freeholder agreed to sell her interest to the company which was in the control of the lessees of the building (although excluding the defendant).
The claimant proceeded to build out believing that she had the freeholder’s permission and still in ignorance of the defendant’s interest. The mansard roof extension was completed in 2002.
In 2006, when she applied for permission to create a roof terrace, the claimant was informed of the existence of the defendant’s lease. She then tried unsuccessfully to contact the defendant’s predecessor in title because she wished to regularise the position so that she could sell.
In 2017, the defendant’s predecessor assigned the lease to the defendant and it tried unsuccessfully to give notice of that assignment. In 2019 the claimant applied to HM Land Registry to register title to the mansard which she had created by reason of her adverse possession relying upon the Land Registration Act 2002 Schedule 6.
The defendant objected and when the claimant then withdrew her application, the defendant proceeded to attempt, unlawfully, to recover possession of its property.
The civil legal claim:
The claimant issued proceedings:
•applying for an injunction to restrain the defendant’s trespasses, and
•seeking declarations that she had been in adverse possession of the mansard and that the defendant was estopped from asserting title to it
The defendant counterclaimed for possession and declarations as to the extent of the premises demised by its lease.
Adverse possession is a legal process that allows a person to claim ownership of land under certain conditions, even if they are not the legal title holder. It is based on the principle that if someone possesses land openly, continuously, and exclusively for a specific period of time, they can potentially acquire legal ownership, effectively overriding the rights of the original owner. The period required for adverse possession varies depending on whether the land is registered or unregistered. For unregistered land, or registered land where the period of adverse possession was completed before 13 October 2003, a squatter must demonstrate 12 years of uninterrupted possession. For registered land under the Land Registration Act 2002, a squatter can apply to be registered as the proprietor after 10 years of adverse possession.
Trespass arises by the unlawful presence of a person on land or buildings in the possession of another. This includes actions such as wrongfully setting foot on, riding or driving over the land, taking possession of it, expelling the person in possession, unlawfully remaining after authority expires, using the land unlawfully for a purpose other than that for which a right of way was granted, destroying anything permanently affixed to the land, placing or fixing anything on or in the land, or invading the airspace above it.
Estopped is a legal principle that prevents a person from going back on their words or conduct which led another person to act on a particular belief, especially when it would be unjust or inequitable to do so. The term 'estopped' essentially means 'stopped' from denying or resiling from a previously held position or assertion.
The ruling:
The court determined that the defendant’s lease lacked effective means of access to the roof space, though potential access from adjoining premises had remained unexplored during the proceedings.
The defendant was estopped from asserting its title to the mansard due to the inaction after receiving notice of the claimant’s application to build the mansard. To satisfy the claimant’s equity, the mansard was treated as an accretion to her demise (i.e. the leased property), making it unconscionable for the defendant to seek possession unless her lease ended. Unconscionable meaning that it was so unfair or oppressive that they shock the conscience of the court or go against the principles of fairness and equity.
The court rejected the defendant’s argument for possession, emphasising that possession claims require both factual possession and an intention to possess, neither of which the defendant had. The outcome was that the defendant was not entitled to an order for possession and was refused an injunction against the claimant’s trespasses. Damages were awarded despite the inadmissibility of the ‘expert’ evidence given and based on the limited material available.
PW-LA are able to assist with such cases and can be contacted if you are unsure what you should do if faced with a land/property concern.
Comments