TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

The court preferred credible witness and aerial/surveyor evidence over the deceased occupier's untested affirmation and found occupation and complete enclosure of the encroached area only commenced circa 2006; that period is insufficient to satisfy the Limitation Ordinance for adverse possession of the registered title; consequently adverse possession was not established and the plaintiff is entitled to possession and nominal damages.

Citation
[2020] HKDC 632
Parties
Plaintiff (personal Representative of the Estate of Tang Kwong Ah, Deceased): Tang Man Chee; Defendant (deceased): Lo Chun; Defendant (personal Representative of the Estate of Lo Chun): Cheung Ah Ping; Defendant (personal Representative of the Estate of Lo Chun): Lei Cuiye
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 August 2020
Case Number
DCMP3363/2016
Procedural Posture
Miscellaneous Proceedings — Claim for Vacant Possession of Land / Trial Judgment (district Court)
Outcome
Counterclaim for adverse possession dismissed; plaintiff entitled to vacant possession of the encroached area; nominal damages and costs order nisi in favour of plaintiff
Legal Topics
Adverse Possession, Factual Possession, Animus Possidendi, Limitation Period for Recovery of Land, Late Disclosure of Evidence
Source Language
EN
Property Law Civil Procedure Evidence Limitation Law Adverse Possession Factual Possession Animus Possidendi Limitation Period for Recovery of Land +1 more

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Parties

Tang Man Chee

Plaintiff (personal Representative of the Estate of Tang Kwong Ah, Deceased)

Lo Chun

Defendant (deceased)

Cheung Ah Ping

Defendant (personal Representative of the Estate of Lo Chun)

Lei Cuiye

Defendant (personal Representative of the Estate of Lo Chun)

Procedural Posture

Miscellaneous Proceedings — Claim for Vacant Possession of Land / Trial Judgment (district Court)

Legal Issues

  1. 1 When did defendant begin occupying the encroached area?
  2. 2 When was the encroached area enclosed by fences?
  3. 3 Whether the defendant's acts amounted to adverse possession sufficient to defeat registered title under the Limitation Ordinance

Ratio Decidendi

The court preferred credible witness and aerial/surveyor evidence over the deceased occupier's untested affirmation and found occupation and complete enclosure of the encroached area only commenced circa 2006; that period is insufficient to satisfy the Limitation Ordinance for adverse possession of the registered title; consequently adverse possession was not established and the plaintiff is entitled to possession and nominal damages.

Court Disposition

Counterclaim for adverse possession dismissed; plaintiff entitled to vacant possession of the encroached area; nominal damages and costs order nisi in favour of plaintiff

Orders

  • Defendant shall deliver vacant possession of the Encroached Area to the plaintiff within 28 days as indicated in Appendix A to the Statement of Claim.
  • Defendant shall pay nominal damages at the rate of HK$1 per year from 8 November 2016 until delivery of vacant possession.