CHENG AH KIU v. CHEUNG KAI YAU AND ANOTHER

CHENG AH KIU v. CHEUNG KAI YAU AND ANOTHER

The claimant failed to prove on the balance of probabilities exclusive physical possession and the requisite animus possidendi for the uninterrupted 20-year period prior to January 2002; documentary and photographic evidence and witness credibility favoured the registered owner (Madam Cheng) whose survey plans and use showed continued possession; therefore adverse possession was not established and the registered owner's claim to possession succeeds.

Citation
CHENG AH KIU v. CHEUNG KAI YAU AND ANOTHER
Parties
Plaintiff in DCCJ 2271/2002; 2nd Defendant in DCMP 2071/2002: Cheung Chung Yan; Defendant in DCCJ 2271/2002; Plaintiff in DCMP 2071/2002: Cheng Ah Kiu (Madam Cheng); 1st Defendant in DCMP 2071/2002: Cheung Kai Yau
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
26 August 2004
Case Number
DCMP2071/2002
Procedural Posture
Real Property Dispute Over Title and Possession (adverse Possession and Trespass) / Trial Judgment (district Court)
Outcome
DCCJ 2271/2002 dismissed (claim for adverse possession failed); DCMP 2071/2002 judgment for Madam Cheng (possession and declaration that defendants are not entitled to use the disputed land)
Legal Topics
Adverse Possession, Possession and Animus Possidendi, Limitation Ordinance S.7(2) and S.13, Trespass, Evidence and Credibility
Source Language
EN
Property Law Land Law Limitation Law Adverse Possession Possession and Animus Possidendi Limitation Ordinance S.7(2) and S.13 Trespass Evidence and Credibility

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Parties

Cheung Chung Yan

Plaintiff in DCCJ 2271/2002; 2nd Defendant in DCMP 2071/2002

Cheng Ah Kiu (Madam Cheng)

Defendant in DCCJ 2271/2002; Plaintiff in DCMP 2071/2002

Cheung Kai Yau

1st Defendant in DCMP 2071/2002

Procedural Posture

Real Property Dispute Over Title and Possession (adverse Possession and Trespass) / Trial Judgment (district Court)

Legal Issues

  1. 1 Whether Cheung Kai Yau trespassed on the disputed triangular parcel of land
  2. 2 Whether Cheung Chung Yan acquired title to the disputed land by adverse possession for the requisite 20 years prior to January 2002

Ratio Decidendi

The claimant failed to prove on the balance of probabilities exclusive physical possession and the requisite animus possidendi for the uninterrupted 20-year period prior to January 2002; documentary and photographic evidence and witness credibility favoured the registered owner (Madam Cheng) whose survey plans and use showed continued possession; therefore adverse possession was not established and the registered owner's claim to possession succeeds.

Court Disposition

DCCJ 2271/2002 dismissed (claim for adverse possession failed); DCMP 2071/2002 judgment for Madam Cheng (possession and declaration that defendants are not entitled to use the disputed land)

Orders

  • Judgment entered for Plaintiff in DCMP 2071/2002 (Madam Cheng) for possession of the disputed land
  • DCCJ 2271/2002 claim dismissed