TSANG KUN KAU AND ANOTHER v. YU YING AND OTHERS

TSANG KUN KAU AND ANOTHER v. YU YING AND OTHERS

On the whole of expert aerial evidence, contemporaneous SCO records, utility records, photographs and reliable oral testimony, the court found the four squatter huts and related works were located within Lot 93 and were erected and used by the 1st Defendant since c.1983 (and occupation activities from 1978). The 1st Defendant demonstrated factual possession and intention to possess; the plaintiffs’ licence argument was an unpleaded point and in any event did not displace the adverse nature of possession as against the registered owner. Accordingly adverse possession for at least 20 years was established and the plaintiffs’ paper title was extinguished under s17 Limitation Ordinance.

Citation
[2024] HKDC 508
Parties
1st Plaintiff: Tsang Kun Kau; 2nd Plaintiff: Lo Chin Pang; 1st Defendant: Yu Ying; 2nd Defendant: All Occupiers of Lot No.93 in DD454
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 March 2024
Case Number
DCMP2335/2012
Procedural Posture
Miscellaneous Proceedings (adverse Possession) / Judgment
Outcome
1st Defendant's claim of adverse possession allowed; declarations made that plaintiffs' title extinguished and 1st Defendant holds possessory title
Legal Topics
Adverse Possession, Factual Possession, Animus Possidendi, Boundary Dispute, Mesne Profits, Expert Evidence
Source Language
EN
Property Law Land Law Limitation Law Civil Procedure Adverse Possession Factual Possession Animus Possidendi Boundary Dispute +2 more

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Parties

Tsang Kun Kau

1st Plaintiff

Lo Chin Pang

2nd Plaintiff

Yu Ying

1st Defendant

All Occupiers of Lot No.93 in DD454

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (adverse Possession) / Judgment

Legal Issues

  1. 1 Were the 4 squatter huts located within Lot 93?
  2. 2 Were the 4 squatter huts constructed by the 1st Defendant?
  3. 3 Has the 1st Defendant been in exclusive possession since about 1978 (or from 1983)?

Ratio Decidendi

On the whole of expert aerial evidence, contemporaneous SCO records, utility records, photographs and reliable oral testimony, the court found the four squatter huts and related works were located within Lot 93 and were erected and used by the 1st Defendant since c.1983 (and occupation activities from 1978). The 1st Defendant demonstrated factual possession and intention to possess; the plaintiffs’ licence argument was an unpleaded point and in any event did not displace the adverse nature of possession as against the registered owner. Accordingly adverse possession for at least 20 years was established and the plaintiffs’ paper title was extinguished under s17 Limitation Ordinance.

Court Disposition

1st Defendant's claim of adverse possession allowed; declarations made that plaintiffs' title extinguished and 1st Defendant holds possessory title

Orders

  • Declaration that plaintiffs' title, interest and/or right in and/or over the disputed land has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance prior to commencement of this action
  • Declaration that the 1st Defendant has been in adverse possession of the disputed land for a period of no less than 20 years before commencement of this action and has thereby acquired possessory title, interest and/or rights over the disputed land