POON CHI HANG v. LAI HO SUN

POON CHI HANG v. LAI HO SUN

The plaintiff failed to prove the requisite animus possidendi because his acts (changing locks, paying maintenance and management) were equivocal and consistent with occupation under permission; occupation by the Poon family derived from an unchallenged permission from Lai Senior adopted by the defendant so was not adverse; accordingly the plaintiff's claim for possessory title fails and the defendant's counterclaim for vacant possession succeeds, with no award of mesne profits.

Citation
POON CHI HANG v. LAI HO SUN
Parties
Plaintiff (original Action); 2nd Defendant (counterclaim): Poon Chi Hang; Defendant (original Action); Plaintiff (counterclaim): Lai Ho Sun; 1st Defendant (counterclaim): Poon Wing Chung; 3rd Defendant (counterclaim): Lo Pui San; 4th Defendant (counterclaim): Poon Wai Kin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 May 2017
Case Number
HCMP1020/2013
Procedural Posture
Adverse Possession / Possessory Title (limitation Ordinance) / Judgment (court of First Instance)
Outcome
Plaintiff's claim for adverse possession dismissed; defendant's counterclaim for vacant possession allowed; no mesne profits awarded; costs ordered to defendant (to be taxed if not agreed).
Legal Topics
Adverse Possession, Possessory Title, Licence and Permission, Mesne Profits, Limitation Ordinance S7 and S17
Source Language
EN
Property Equity Civil Procedure Limitation Adverse Possession Possessory Title Licence and Permission Mesne Profits +1 more

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Parties

Poon Chi Hang

Plaintiff (original Action); 2nd Defendant (counterclaim)

Lai Ho Sun

Defendant (original Action); Plaintiff (counterclaim)

Poon Wing Chung

1st Defendant (counterclaim)

Lo Pui San

3rd Defendant (counterclaim)

Poon Wai Kin

4th Defendant (counterclaim)

Procedural Posture

Adverse Possession / Possessory Title (limitation Ordinance) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the plaintiff obtained possessory title by adverse possession
  2. 2 Whether occupation was by licence or with permission preventing adverse possession
  3. 3 Whether the acts of occupation (changing locks, paying maintenance) manifested animus possidendi

Ratio Decidendi

The plaintiff failed to prove the requisite animus possidendi because his acts (changing locks, paying maintenance and management) were equivocal and consistent with occupation under permission; occupation by the Poon family derived from an unchallenged permission from Lai Senior adopted by the defendant so was not adverse; accordingly the plaintiff's claim for possessory title fails and the defendant's counterclaim for vacant possession succeeds, with no award of mesne profits.

Court Disposition

Plaintiff's claim for adverse possession dismissed; defendant's counterclaim for vacant possession allowed; no mesne profits awarded; costs ordered to defendant (to be taxed if not agreed).

Orders

  • Vacant possession of the Premises awarded to the defendant (order to be settled as between parties)
  • No monetary award for mesne profits