Maria Jesus El Massouri v Omani Estates Limited

A proprietary estoppel may arise where a landowner, knowing of another’s mistaken belief in an entitlement to develop or use land, encourages that belief by standing by while substantial works are undertaken. Mere inaction is insufficient, but silence may amount to passive encouragement where the owner knows, or ought to know, of the relevant rights, the intended detriment and the claimant’s mistaken belief. The ultimate question is whether it would be unconscionable to insist on strict legal rights.

A possession claim protects the right to physical occupation. Registered title alone does not entitle a claimant to possession where neither it nor its predecessor has possessed, or can physically access, the land. An agent’s trespass in asserting the principal’s purported rights remains the principal’s responsibility.

The claimant and her late husband held a long lease of the second floor of a property. They constructed and occupied a new third-floor mansard and rear storey in about 2002, using the second floor as the only practical access. A 1996 lease granted to Francis Frimpong purported to demise the space for a third-floor flat and was later transferred to the defendant.

The defendant asserted title in 2020 and, in 2022, its agents entered parts of the claimant’s demised premises, removed a door and CCTV cameras, and installed partitions. The claimant sought declarations based on adverse possession and proprietary estoppel, while the defendant sought possession and damages for trespass. The central issues were the scope and effect of the Frimpong Lease, the claimant’s estoppel defence, the defendant’s entitlement to possession, and liability for the agents’ conduct.

1. Proprietary estoppel. The claimant established an equity binding on the defendant. The relevant circumstances included knowledge of the planning proposals, the grant and concealment of the Frimpong Lease, the defendant’s prolonged failure to assert rights, and the freeholder’s and lessee’s silence while substantial works were carried out. Those matters went beyond mere inaction and made it unconscionable for the defendant to assert the lease against the claimant. The claimant was therefore treated as entitled to the third floor as an accretion to her existing lease.
2. Adverse possession. The action was a possession claim within section 98 of the Land Registration Act 2002. The claimant and her husband had factual possession and the necessary intention to possess, but the condition in paragraph 5(4) of Schedule 6 was not satisfied because they knew of the Frimpong Lease before ten years had elapsed. Adverse possession therefore added nothing beyond the proprietary estoppel defence.
3. Scope and access. The Frimpong Lease included the space up to the ceilings of the proposed flat shown in the 1992 planning plans. It did not confer a general right of way over the stairs or second-floor premises. Access reserved for repairs did not create a general access right, and the air-space demise did not provide a genuine means of access to the third floor.
4. Possession and remedies. A possession action protects physical occupation. The defendant and its predecessor had never possessed, and could not physically access, the relevant land under the Frimpong Lease. The defendant was therefore not entitled to possession. Even if the estoppel finding were wrong, an injunction would have been refused. Negotiating damages, if required, would have been assessed at £7,500 on the evidence available.
5. Trespass and orders. The defendant was liable for its agents’ trespasses in the claimant’s demised premises. The repair-access reservation did not authorise installation of the partition. Declarations were granted concerning the stairs, access rights, adverse possession and estoppel. A permanent injunction was to be drawn, and the defendant’s counterclaim was dismissed.