POON MUI v. CHEONG WAI KIN STANLEY AND ANOTHER

POON MUI v. CHEONG WAI KIN STANLEY AND ANOTHER

Because rent was paid for Ngong Kwai Tau (including Lot 2158) with the last recorded receipt in 1999 the owner's right of action accrued in 1999; neither Cheung Wan nor the 1st defendant proved the requisite animus possidendi or exclusive factual possession of Lot 2158 prior to 14 November 2000, and the 1st defendant's written offer in June 2010 to return the premises further negates intention to exclude the owner. Therefore adverse possession was not established and the plaintiff is entitled to vacant possession, nominal damages and an injunction.

Citation
POON MUI v. CHEONG WAI KIN STANLEY AND ANOTHER
Parties
Plaintiff (registered Owner): Poon Mui; Personal Representative of Poon Mui's Estate: Man Chun; 1st Defendant (counterclaimant): 1st Defendant (Mr Cheong / Cheong Kin / Ip Kin)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 March 2016
Case Number
HCMP2593/2012
Procedural Posture
Land Dispute — Recovery of Possession and Counterclaim for Adverse Possession / Judgment Following Trial
Outcome
Judgment for plaintiff. Counterclaim for declaration of ownership by adverse possession dismissed.
Legal Topics
Adverse Possession, Limitation Ordinance Cap 347, Tenancy and Accrual of Cause of Action, Acknowledgement of Title, Injunctions, Trespass/mesne Profits
Source Language
EN
Property Law Land Law Limitation Law Civil Procedure Equity Adverse Possession Limitation Ordinance Cap 347 Tenancy and Accrual of Cause of Action +3 more

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Parties

Poon Mui

Plaintiff (registered Owner)

Man Chun

Personal Representative of Poon Mui's Estate

1st Defendant (Mr Cheong / Cheong Kin / Ip Kin)

1st Defendant (counterclaimant)

Procedural Posture

Land Dispute — Recovery of Possession and Counterclaim for Adverse Possession / Judgment Following Trial

Legal Issues

  1. 1 Whether the 1st defendant had acquired title by adverse possession of Lot No.2158 for 12 years before 14 November 2012
  2. 2 When the landowner's right of action accrued for limitation purposes (effect of rent receipts and oral tenancy)
  3. 3 Whether the 1st defendant had animus possidendi (intention to possess to exclusion of owner) before the critical date

Ratio Decidendi

Because rent was paid for Ngong Kwai Tau (including Lot 2158) with the last recorded receipt in 1999 the owner's right of action accrued in 1999; neither Cheung Wan nor the 1st defendant proved the requisite animus possidendi or exclusive factual possession of Lot 2158 prior to 14 November 2000, and the 1st defendant's written offer in June 2010 to return the premises further negates intention to exclude the owner. Therefore adverse possession was not established and the plaintiff is entitled to vacant possession, nominal damages and an injunction.

Court Disposition

Judgment for plaintiff. Counterclaim for declaration of ownership by adverse possession dismissed.

Orders

  • Order for vacant possession of Lot No.2158 in DD102, Yuen Long, New Territories, Hong Kong
  • Nominal damages awarded to plaintiff in the sum of 100 (one hundred) HKD for trespass/mesne profits