Adverse Possession and Consent

An unauthorised occupier of land may be able to acquire title to the land by adverse possession where they can demonstrate that they have had both factual possession of the land and the requisite intention to possess for a 12 year period. Possession with the consent (whether express or implied) of the owner can never amount to adverse possession. This was tested in the recent appeal case of Malik v Malik.

In 1977, IM had purchased a flat in London. He lived there for short periods of time but also lived in Pakistan. In 1987, when he was in Pakistan, one of his family members, VM, moved into the flat and subsequently refused to allow IM to have access. Later that year, IM issued a possession claim which VM defended on the basis that the flat was, in fact, held pursuant to a family arrangement which entitled him to occupy it. Those proceedings were stayed to enable settlement talks and mediation, which were unsuccessful. IM applied to lift the stay. In response to that application, VM expressly denied that he was relying on any right of adverse possession. The court refused to lift the stay and there was no further appeal against that decision.

In 2017, in fresh litigation between the parties, VM contended that he was the owner of the flat by virtue of adverse possession. The trial judge refused to allow him to advance that argument, holding that it was an abuse of process to make that argument because it had been expressly disavowed in the earlier stay application. In addition, the trial judge held that VM had not demonstrated the necessary intention to possess; in particular, VM had asked IM to pay the service charges due under the lease which the judge held negated an intention adversely to possess the land. IM was accordingly entitled to possession.

The High Court allowed an appeal by VM in 2023. There was no clear or unequivocal representation by VM that he would never rely on adverse possession so that it was not an abuse of process to raise the point. Asking IM to pay the service charges was not necessarily evidence that VM did not have the intention to adversely possess the land but, on the facts, the trial judge had nonetheless been correct to find that there was no adverse possession. The resolution of the case turned on the 1987 possession claim; the stay was accordingly lifted.

IM appealed to the Court of Appeal, arguing that the High Court had been wrong to find that there was no abuse of process. The Court of Appeal allowed the appeal and restored the order of the trial judge. The trial judge had been correct to find that it was an abuse of process for VM to now take the adverse possession argument. VM's position in the more recent proceedings was clearly inconsistent with his position in respect of the stay application and that was sufficient to give rise to an abuse of process such that VM was prevented from now advancing that argument.

Oliver Kew

Published on 09/01/2025