LIN JIANCHUN v. LIN XIUMEI AND ANOTHER

LIN JIANCHUN v. LIN XIUMEI AND ANOTHER

Defendants failed to prove exclusive continuous possession and the requisite animus possidendi for the statutory period; contemporaneous evidence showed a tenancy relationship and the 1st Defendant promised to continue paying rent, demonstrating possession was with consent (as of right) not adverse; therefore the counterclaim for title by adverse possession fails and judgment is entered for the Plaintiff with orders for vacant possession, arrears, mesne profits, interest and costs.

Citation
LIN JIANCHUN v. LIN XIUMEI AND ANOTHER
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 July 2011
Case Number
DCCJ2491/2008
Procedural Posture
Land Possession / Adverse Possession / Landlord and Tenant Dispute / Trial Judgment (deputy District Judge, First Instance)
Outcome
Judgment for the Plaintiff; Defendants' counterclaim dismissed; Defendants ordered to deliver vacant possession and to pay arrears, mesne profits, interest and costs
Legal Topics
Adverse Possession, Animus Possidendi, Mesne Profits, Limitation Period, Tenancy Agreements, Credibility of Witnesses, Possession With Consent
Source Language
EN
Property Law Adverse Possession Landlord and Tenant Law Limitation Law Civil Procedure Animus Possidendi Mesne Profits Limitation Period +3 more

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Procedural Posture

Land Possession / Adverse Possession / Landlord and Tenant Dispute / Trial Judgment (deputy District Judge, First Instance)

Legal Issues

  1. 1 Whether the late Mr Ho and his family had exclusive and continuous possession of the Land for the requisite limitation period (20 years if from 1976 or 12 years if from 1991/1995)
  2. 2 Whether defendants' testimony about illegal entry/remaining should be admitted and whether such periods count towards possession for limitation
  3. 3 Whether the death of the late Mr Ho affects calculation of limitation

Ratio Decidendi

Defendants failed to prove exclusive continuous possession and the requisite animus possidendi for the statutory period; contemporaneous evidence showed a tenancy relationship and the 1st Defendant promised to continue paying rent, demonstrating possession was with consent (as of right) not adverse; therefore the counterclaim for title by adverse possession fails and judgment is entered for the Plaintiff with orders for vacant possession, arrears, mesne profits, interest and costs.

Court Disposition

Judgment for the Plaintiff; Defendants' counterclaim dismissed; Defendants ordered to deliver vacant possession and to pay arrears, mesne profits, interest and costs

Orders

  • Judgment for the Plaintiff; the 1st and 2nd Defendants to deliver vacant possession of the Land forthwith
  • The 1st Defendant to pay arrears of rent for 2006 to 2008 totalling HK$1,800