Stephen Jourdan KC appears in High Court adverse possession appeal
On 20 January 2023, Bacon J handed down judgment in Malik v Malik  EWHC 59 (Ch). Stephen Jourdan KC appeared for the appellants, Vaqar Malik and two of his sons.
The case concerned a dispute between two brothers as to the ownership of a flat in Knightsbridge held under a 999 year lease. The lease was held in the name of Iftikhar Malik, but in 1987 his brother Vaqar locked Iftikhar out of the flat, claiming that he was entitled to reside in the flat and that there was a family partnership, the flat had been purchased by the partnership and he was entitled to the flat as having been allocated to him as part of his share in the partnership. He asked Iftikhar to pay the service charges due under the lease of the flat, which Iftikhar did. Vaqar remained in sole physical control of the flat thereafter.
The 1987 possession action was stayed. Iftikhar applied for the stay to be lifted, but this was refused by Mr Jarvis QC in 2012. Iftikhar then started a new possession claim in 2018.
In March 2022, HHJ Gerald gave judgment in the new possession claim. He rejected Vaqar’s claim that the flat had been purchased for him. He held that Vaqar could not rely on adverse possession because he had told Mr Jarvis QC at the 2012 hearing that there would be no adverse possession defence if Iftikhar started a new claim. He also held, in any event, that Vaqar did not have the intention to possess because of his request that Iftikhar paid the service charges.
Vaqar and his sons appealed successfully to the High Court on the adverse possession issues. Bacon J held:
- Vaqar had made no clear statement to Mr Jarvis QC in 2012 that he would not rely on an adverse possession defence if Iftikhar started a new claim, and Vaqar was therefore entitled to rely on adverse possession.
- The obligation to pay service charges is an incident of ownership of the lease, not of possession. As payment of the service charges is not a necessary incident of possession, then an intention to possess does not require the payment of the service charges.
Bacon J therefore allowed the appeal. However, she also ordered that the stay on the 1987 possession action should be lifted, and gave summary judgment to Iftikhar in that action. As that action had been started before the expiry of the limitation period, there could be no adverse possession defence in that action.
A copy of the judgment can be downloaded here.
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