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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> El Massouri v Omani Estates Ltd [2024] EWHC 534 (Ch) (13 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2024/534.html Cite as: [2024] EWHC 534 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (CHD)
Fetter Lane London EC4A 1NL Handed down by email |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
MARIA JESUS EL MASSOURI |
Claimant |
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- and – |
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OMANI ESTATES LIMITED |
Defendant |
____________________
MAX THOROWGOOD (instructed by Blacks Legal) for the Defendant
Hearing dates: 6th to 8th February 2024
____________________
Crown Copyright ©
Nicholas Caddick K.C. (Deputy High Court Judge):
Introduction
a. Between 5 and 7 February 2022, they entered the property and removed the door at the bottom of the stairs that led up from the first floor together with its closing mechanism (presumably leaving the Claimant's property unsecured).
b. Between 11 and 14 February 2022, they erected a partition across the half-landing between the ground to first floors, thereby obstructing access to storage cupboards there which were used by tenants in the building.
c. On 12 February 2022, Ms Kumar wrote to the residents of rooms on the third floor asserting that Omani (and not Mrs El Massouri) was the owner of the properties that they were occupying and stating that those properties "will now be repossessed". The letter advised the tenants to remove all their belongings and to vacate the premises.
d. On 4 March 2022, an agent of Omani went up the stairs into the second floor flat. CCTV footage shows that, on this person's way back down the stairs, he knocked down and removed the CCTV camera that Mrs El Massouri's partner, Stefan Sell, had installed on the half-landing between the first and second floors.
e. The same happened on 28 or 29 March 2002 when a person wearing a hood and carrying a stave of wood again mounted the stairs, removed and took away a replacement CCTV camera that had been put up on behalf of Mrs El Massouri.
f. At some point, probably between March and early June 2022, Omani caused exterior scaffolding to be erected at the rear of the property. This went from the top of the ground floor terrace up to the third floor – providing access to the third floor roof terrace. Omani says that this scaffolding has been erected in air space that was part of the Frimpong Lease demise. Mr Rellis (a chartered surveyor called by the Claimant as an expert witness) referred to this as a "rudimentary scaffold" which, he said, is not secure and does not comply with safety regulations. He also commented that it is "a serious breach of privacy" as it passes the windows of the bathrooms on the upper floors of the building.
g. On 6 June 2022, two hooded people (one of them carrying a wooden stave) mounted the stairs to the second floor and knocked down yet another replacement CCTV camera that had been put up there and took it and some other items away with them.
h. On 9 June 2022, Omani's agents entered the property and blocked access from the second floor to the third floor by means of a horizontal partition screwed to the walls of the stairwell between those floors. They also removed a handrail and balusters and screwed shut the doors to the rooms on the third floor. It is not clear how they accessed the premises but when they left, having installed the partition, they presumably did so via the scaffolding. Mr Sell and a friend, Ashraf Ibrahim (who helps look after Mrs El Massouri's interests at 93 Finborough Road) removed the partitioning and the screws so that Mrs El Massouri's tenants were able to access their rooms on the third floor.
The issues
The Witnesses
The layout of 93 Finborough Road before the construction of the mansard
a. Lower ground floor - the lower ground floor had its own access via steps down from the pavement. Beyond the rooms in the front section, there was a kitchen in the rear section. Beyond the kitchen was a small utility room of a single storey construction (the 1984 plans show that this had previously been a WC). A conservatory was added to the side of the rear section, apparently after the grant of planning permission on 11 May 1988.
b. Ground floor - the main front door to 93 Finborough Road led into a hallway on the ground floor. Within the ground floor flat, beyond the front section, there was (again) a kitchen in the rear section. This was situated above the lower ground floor kitchen (but did not extend over the lower ground floor utility room).
c. First floor - at the end of the ground floor hallway was a flight of stairs leading to a half-way landing in the rear section of the building – i.e. a landing between the ground and first floors of the front section of the building. At this level, as shown in the 1984 plan, the rear section is smaller than on the ground and lower ground floors. As a result, the space there (marked "kitchen" on the plan, although that is not apparent on site) was and is smaller than those below. Beyond that space, there were what the plan describes as "Existing Balcony Doors" leading to a small terrace over part of the roof of the ground floor kitchen. These doors and terrace can be seen in several photographs, although access to them has since been obstructed by the partition which the Defendant has erected across the landing. It was over this terrace that agents of the Defendant erected scaffolding in 2022, as mentioned above. Continuing five steps up from this half-landing was the rest of the first floor flat and a staircase leading up to the second floor. At the foot of these stairs was the door which Ms Kumar demanded be removed but which, it is now agreed, was (and always had been) the entrance to the Claimant's flat and part of the demise to the Claimant.
d. Second floor – the stairs from the first floor led to another half-way landing in the rear section – i.e. a landing between the first and second floors. It was here that the CCTV cameras referred to above were positioned. As shown in the 1984 plan, the rear section at this level contained (and still contains) a bathroom. The roof over that bathroom was sloping, as shown by a dotted line on the 1992 plans. The space between the bathroom ceiling and that sloping roof was accessed by a small door in the wall above the landing (which can be seen in a photograph in the Trial Bundle[4]). I accept Mrs El Massouri's evidence that this space was like "a little attic", containing a water tank, and that, closest to the door, it was high enough for a person to stand up but not further in due to the sloping roof. Continuing eight steps up from this half-landing was the rest of the second floor flat. As I have mentioned, until 2002, the second floor was the top floor of the property.
e. The new third floor – whilst dealing with the layout, it is convenient to refer to the changes made by the Claimant and her late husband in 2002 to implement their 1992 plans. These changes resulted in the creation of a new third floor over the front section of the building, under a new mansard, and the addition of a new storey to the rear section, creating a new half-way landing between the existing second and new third floors containing a bathroom for the third floor with, as mentioned above, a roof terrace on top.
The Claimant's Lease
"(ii) Power for the Lessor and the Lessor's surveyor and agents with or without workmen and others at all reasonable times upon giving 14 days written notice (except in the case of emergency) to enter the Demised Premises for the purpose of carrying out the Lessor's obligations under the Second Schedule hereto and to repair the remainder of the Property and any adjoining or neighbouring property of the Lessor."
and
"(iii) All other rights and easements in or over the Demised Premises or any part thereof and all rights and privileges in the nature of easements or quasi-easements which are or have heretofore been used or enjoyed for the benefit of the remainder of the Property or any adjoining or neighbouring property of the Lessor or the occupiers thereof"
The Frimpong Lease
a. When, in 1996, Mrs Baffour-Awuah decided to grant the Frimpong Lease, there is no suggestion that she looked for a buyer on the open market. Instead, she chose Mr Frimpong.
b. Mr Frimpong then had and still has close connections with the Hamilton family. On Mrs Baffour-Awuah's own evidence, she had known him for some years before 1996. His evidence also shows that he has lived in or used properties associated with the Hamilton family. He currently lives in a property in Hove (69 The Drive) that Maximilian Hamilton described as "a family property" and his stated address at the time of the Frimpong Lease (504 Edgware Road) was a property associated with the Hamiltons, as evidenced by its being the address given for Mr Frimpong in the Frimpong Lease and also (as Mr Hamilton confirmed) by its being the address of a Mr A.J. Browne (an architect closely associated with the Hamiltons at the relevant time and found in other litigation[8] to be Mr van Hoogstraten's "right hand man"). Mr Hamilton also stated that Mr Frimpong regularly borrows money from Hamilton entities and that, as at 2017 when he transferred the Frimpong Lease to Omani, the total of his borrowings was in the region of £150,000. Mr Frimpong has also been involved with the Hamilton family in relation to other property matters. In cross examination, he was referred to a Court of Appeal judgment, reported at [2002] EWCA Civ 417 and dealing with a case in which he and Mr van Hoogstraten (and others) were accused of having conspired to defeat a tenant's claim to acquire the freehold of the property at 2 – 6 Palmeira Square, Hove. Mr Frimpong admitted that he had bought a lease of a flat in that property from Mr van Hoogstraten but said that he had no memory of anything else regarding that property or that litigation.[9]
c. If Mr Frimpong was acting independently, one might reasonably have expected him or Mrs Baffour-Awuah to have done more than merely registering the new lease and to have informed the other tenants or the new freehold company of its existence. In fact, neither of them did this. This may, of course, have been because Mrs Baffour-Awuah had failed to give the other tenants notice of her intention to grant the lease, thereby depriving them of the right of first refusal with regard to it – a failure which, if done without reasonable excuse, would have been a criminal offence under s.10A Landlord and Tenant Act 1987 (which came into force a few weeks before the grant). It may also have been because, in breach of clause 3(b)(i) and (ii) of the Claimant's Lease, the terms of the Frimpong Lease were far more favourable to the lessee than those of the Claimant's Lease by, for example, omitting any obligation on the lessee to contribute towards structural repairs[10]. The favourable terms of the Frimpong Lease suggest that the Hamiltons hoped to be able to benefit from the Frimpong Lease at minimal cost to themselves. Significantly, on Mr Frimpong's own evidence, he did not discuss what he might have to pay towards repairs before entering into the Frimpong Lease. It was clearly of no interest to him.
d. Mr Frimpong showed a similar lack of interest after the grant of the Frimpong lease. As I understand his evidence, he visited 93 Finborough Road once in 1996 but did not visit again in the rest of the 21 years that he held the Lease. In all that time, he did nothing to alert the other tenants or the freehold company either to his existence or to that of the Frimpong Lease. He did not insure his interest in the property nor make any payments by way of ground rent or for insurance or maintenance. On his own evidence, it did not cross his mind to pay any ground rent.
e. When, in 2017, Mr Frimpong came to dispose of the Frimpong Lease, he did so to Omani (a company controlled by the Hamilton children). It was not suggested that he sought to market this potentially valuable asset more widely.
f. Significantly in relation to both the grant of the Frimpong Lease in 1996 and its transfer to Omani in 2017, Mr Englehart of Engleharts Solicitors (a trusted solicitor for the Hamilton family), acted for all parties (Mrs Baffour-Awuah and Mr Frimpong in 1996 and Mr Frimpong and Omani in 2017) - showing there were no possible conflicting interests between them. The manuscript markings on documents (for example the "93" on Mrs Baffour-Awuah's land certificate and the "F.F." and "Third Floor 93" on Mr Frimpong's) are also suggestive of a filing system whereby those parties' interests were dealt with together.
g. There was a remarkable absence of documentation from Mr Englehart's files in relation to either transaction. This was despite chasers from the Claimant's solicitors and despite the fact that Engleharts Solicitors were custodians of documents for the purposes of disclosure. On 25 July 2023, the Defendant's solicitors wrote in relation to various issues relating to Mr Frimpong and saying that enquiries were being made of Engleharts and that Mr Englehart would be in a position to address them. However, they never responded to the Claimant's solicitor's letter of 23 August 2023 pressing for disclosure from Engleharts. I am bound to wonder whether, if disclosure had been given or if evidence had been obtained from Mr Englehart, it might have contained material adverse to the Defendant's case.
h. There appears to have been none of the sort of exchanges that one would expect to see on the grant of a lease such as the Frimpong Lease and on its subsequent transfer. For example, there is no evidence of any client care letters, of any advice on matters of title or obligations under the lease, of any searches being carried out (other than the Land Registry search costing £3 referred to in Engleharts' invoice to Omani dated 14 March 2017[11]), or of any other pre-contract dealings (such as draft contracts).
i. Finally, although the transactions were purportedly for consideration, this does not suggest that they were arm's length transactions. In the first place, there is no evidence of any valuation being carried out (for either party) when the lease was granted in 1996 for a premium of £7,500. In relation to the transfer to Omani, supposedly for the sum of £96,000, Maximilian Hamilton said that he thought an estate agent's valuation had been obtained. However, he admitted that he had no first hand knowledge of this and he was unable to provide any details or supporting evidence. Further, it emerged in the course of the cross examination of Mr Hamilton that, far from the sum of £96,000 being an actual payment made by Omani to Mr Frimpong (as had been suggested in Omani's pleadings and witness statements), that sum had been "paid" by way of a set off against part of the sum that Mr Frimpong is said to have owed various other Hamilton companies (not Omani), as recorded in some sort of rolling debt ledger. However, the ledger was not disclosed and no details were given of the various transactions supposedly recorded in it. In the absence of such information and of a valuation, it is impossible to attribute much significance to the figure of £96,000. Instead, these dealings serve to emphasise the close nature of the relationship between Mr Frimpong and the Hamilton family.
"ALL THAT area forming part of the Property edged red on the Plans annexed hereto and situate above the second floor flat together with all areas to the rear addition of the building above the ground floor and including the ceilings and floors of the proposed flat and the joists and beams on which the floors are laid and the joists or beams to which the ceilings are attached and the windows and the internal walls of the said flat including the internal and external walls thereof Excepting from the demise the roof and foundations of the Building and all garden walls"
Knowledge of planning applications and of works to create the third floor flat
Adverse possession
The Land Registration Act 2002
"(a) on the day immediately preceding that on which the action was brought he was entitled to make an application under paragraph 1 of Schedule 6 to be registered as the proprietor of an estate in the land, and
(b) had he made such an application on that day, the condition in paragraph 5(4) of that Schedule would have been satisfied."
"…additional to any other defences a person may have."
Accordingly, a person facing a claim for possession of registered land may rely on another defence such as that of proprietary estoppel.
The section 98(1) Defence
(a) Would Mrs El Massouri have been entitled to make an application
(b) Would the paragraph 5(4) condition have been satisfied
"(4) The third condition is that—
(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application."
The section 98(6) Defence
Proprietary estoppel
"46. Equitable estoppel is a flexible doctrine which the Court can use, in appropriate circumstances, to prevent injustice caused by the vagaries and inconstancy of human nature. But it is not a sort of joker or wild card to be used whenever the Court disapproves of the conduct of a litigant who seems to have the law on his side. Flexible though it is, the doctrine must be formulated and applied in a disciplined and principled way. Certainty is important in property transactions. As Deane J said in the High Court of Australia in Muschinski v Dodds (1985) 160 CLR 583 , 615–616,
"Under the law of [Australia]—as, I venture to think, under the present law of England—proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party 'ought to win' and 'the formless void of individual moral opinion'" [references omitted].'"
"(a) the owner of land (O) induces, encourages or allows the claimant (C) to believe that C has or will enjoy some right or benefit over O's property, provided that inducement etc is not specifically limited to a mere personal use of the land;
(b) in reliance upon this belief, C acts to his or her detriment to the reasonably determined knowledge of O; and
(c) O then seeks to take unconscionable advantage of C by denying C the right of benefit which C expected to receive."
"….may take the form of standing by in silence whilst one party unwittingly infringes another's legal rights. It may take the form of passive or active encouragement of expenditure or alteration of legal position upon the footing of some unilateral or shared legal or factual supposition. Or it may, for example, take the form of stimulating, or not objecting to, some change of legal position on the faith of a unilateral or a shared assumption as to the future conduct of one or other party. I am not at all convinced that it is desirable or possible to lay down hard and fast rules which seek to dictate, in every combination of circumstances, the considerations which will persuade the court that a departure by the acquiescing party from the previously supposed state of law or fact is so unconscionable that a court of equity will interfere."
"Passive encouragement occurs when O, an owner of land, stands by and allows C to act to his or her detriment knowing that C mistakenly believes that C has or will obtain an interest in or right over O's land. In such a situation, 'the circumstances of looking on is in many cases as strong as using terms of encouragement'. Thus, an equity arose in C's favour where he constructed an engine shed on O's land and O both acquiesced in its construction and accepted rent for it. In another case, in which a lease had been forfeited, the lessors knowingly allowed the underlessees to believe that their sub-leases were still subsisting. The underlessees having acted to their detriment in this belief, the lessors were estopped from denying the validity of the underlease. Likewise, where O stands by as C converts a loft space believing, inaccurately, that it forms part of the demised premises. Formerly the courts adopted defined criteria for establishing acquiescence, and sometimes still do, but the approach is now generally more flexible. The weight of authority is that it is no longer necessary to force C's conduct 'into a Procrustean bed constructed from some unalterable criteria', but to consider whether in the circumstances it would be inequitable for O to insist upon his or her strict legal rights. The one element that is clearly essential is that O's conduct should have encouraged C to act as he or she did. Mere inaction by O in the face of an infringement of O's rights cannot therefore amount to acquiescence because it does not induce C to act. In cases of passive encouragement, it is unlikely that O's conduct will be regarded as unconscionable unless O was aware of, or should have been aware of:
(i) O's own proprietary rights;
(ii) C's expenditure or other detrimental acts; and
(iii) C's mistaken belief that he had or would acquire an interest in or over O's land."
"… requires a very much broader approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour"
Trespass
Loss and interest
Remedies
The declarations sought
a. The Claimant is entitled to a declaration that the land comprising title number BGL19306 (the Frimpong Lease) does not have a right of way over the Stairs and has no right of access to the mansard or to the additional storey of the rear section of the Property, save for the purposes of repair of the premises demised under the Frimpong Lease;
b. The Claimant is entitled to a declaration that the third floor mansard and the additional (top) storey to the rear section of the property which are comprised in title number BGL19306, have been in the adverse possession of the Claimant and/or her late husband since about 2002; and
c. The Claimant is entitled to a declaration that the Defendant is prevented by estoppel from claiming possession of those parts of the land comprised in title number BGL19306 which have been the adverse possession of the Claimant and/or her late husband since about 2002.
Is the Defendant entitled to an order for possession, an injunction or damages in lieu of an injunction?
"… To use the old terminology, the defendant has ejected the claimant from the land; the claimant says that he has a better right to possess it, and he wants to recover possession. That is reflected in the form of the order which the court grants: 'that the claimant do forthwith recover' the land - or, more fully, 'that the said AB do recover against the said CD possession' of the land."
"It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi").
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. "What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants": West Bank Estates Ltd. v. Arthur, per Lord Wilberforce. … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi , which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as "the intention of excluding the owner as well as other people." … What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
"…there are two elements necessary for legal possession:
1. a sufficient degree of physical custody and control ("factual possession");
2. an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess")."
"34 … it is clear that in reality what was being protected by the action was the right to physical occupation of the land, not the right to possession of a legal estate in land. The head lessee who was merely collecting the rents would not be able to bring an action which would result in his gaining physical occupation of the land unless he was entitled to it.
35. It seems clear that the modern possession action is there to protect the right to physical occupation of the land against those who are wrongfully interfering with it. The right protected, to the physical occupation of the land, and the remedy available, the removal of those who are wrongfully there, should match one another. The action for possession of land has evolved out of ejectment which itself evolved out of the action for trespass."
Conclusion
Note 1 The letter was addressed to 9T9T9 Limited at the First Floor flat at 93 Finborough Road. It is not clear whether that was that company’s registered office as, on Land Registry documents, its address was given as the Second Floor flat. In any event, the letter was returned undelivered in April 2017 and there seems to have been no follow up. [Back] Note 2 Pages C87 to 91 in the Trial Bundle [Back] Note 3 Pages C129 to 132 in the Trial Bundle [Back] Note 5 Pages C129 and C130 of the Trial Bundle [Back] Note 6 See, for example, para.6 of the first witness statement of Maximilian Hamilton [Back] Note 7 See p.C20 of the Trial Bundle [Back] Note 8 See Raja v Van Hoogstraten [2005] EWHC 2890 per Lightman J at [69] [Back] Note 9 The judgment states (at para.21) that he had been debarred from defending the proceedings after failing to provide any disclosure. [Back] Note 10 It also provided for a substantially lower ground rent, £1 p.a as opposed to the Claimant’s £75, rising to £150 p.a. and was for a period of 199 years, thereby creating a substantial reversionary interest upon the termination of the Claimant’s 99 year lease. [Back] Note 11 See page C328 Trial Bundle. Interestingly, no invoice to Mr Frimpong has been disclosed. [Back] Note 12 See page C328 of the Trial Bundle [Back] Note 13 Mr Rellis puts the building costs at £90,000. [Back]