LI KWONG SING AND OTHERS v. PERSON(S) UNKNOWN IN OCCUPATION OF PART (AS MARKED IN ORANGE IN THE ATTACHED PLAN) OF LOT NO. 2223 IN D.D. 76, NORTH, NEW TERRITORIES AND ANOTHER

LI KWONG SING AND OTHERS v. PERSON(S) UNKNOWN IN OCCUPATION OF PART (AS MARKED IN ORANGE IN THE ATTACHED PLAN) OF LOT NO. 2223 IN D.D. 76, NORTH, NEW TERRITORIES AND ANOTHER

The 2nd defendant failed to prove the twin requirements of factual possession and animus possidendi for the requisite 12 years: the father remained a tenant and lacked intention to exclude the owners; the 2nd defendant's possession only commenced (as evidenced by CLP and aerial photos) between July and November 2007 with electricity and renovation activity thereafter, falling short of 12 years; accordingly plaintiffs are entitled to possession, the 2nd defendant's counterclaim is dismissed, and service on the 1st defendant was invalid so proceedings against them are adjourned sine die.

Citation
[2024] HKDC 142
Parties
Plaintiffs: LI KWONG SING; LI LAI FONG IBE VERONICA; LI LAI KWAN CYNTHIA (administrator of LI KWOK KWONG, deceased); LI KWONG CHEE ERIC (administrator of LI KWOK HAY, deceased); LEE ALAN KWONG LOON (executor of LI KWOK FAN, deceased); LI WAI; LEE KWONG LAI STANLEY; LI KWONG HING; LEE KWONG TING KENNETH; LEE KWONG YUEN MICHAEL; CHUNG YUK KWAN (administratrix of KWOK SHUI LI, deceased); SANDY KWOK MAN LI; LI KOON SANG; LI SHUI YUEN; YU WAN SHEUNG (administratrix of LI KWOK MING, deceased); LI KWOK FUNG; LI KWOK CHU RAYMOND; LEE KWOK WAI; LI KWOK LAM WILLIAM; LI KWOK LUNG; LI KWOK LING (also known as KWOK LING LI); LI KWOK LAI ROCKY; LI KWOK CHING; LEE KWOK KIN KENNY; 1st Defendant: Person(s) unknown in occupation of part (as marked in Orange in the attached plan) of Lot No. 2223 in D.D. 76, North, New Territories; 2nd Defendant: Yeung Chung Ying
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
26 January 2024
Case Number
DCMP845/2019
Procedural Posture
Possession of Land (order 113 Originating Summons) / Judgment
Outcome
Plaintiffs' claim for recovery of possession allowed against the 2nd defendant; 2nd defendant's counterclaim for adverse possession dismissed; proceedings against 1st defendant adjourned sine die with liberty to apply; costs order nisi made in favour of plaintiffs against 2nd defendant.
Legal Topics
Adverse Possession, Possession and Factual Possession, Limitation Period for Recovery of Land, Service Under Order 113, Mesne Profits
Source Language
EN
Property Law Civil Procedure Land Law Equity and Trusts Adverse Possession Possession and Factual Possession Limitation Period for Recovery of Land Service Under Order 113 +1 more

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Parties

LI KWONG SING; LI LAI FONG IBE VERONICA; LI LAI KWAN CYNTHIA (administrator of LI KWOK KWONG, deceased); LI KWONG CHEE ERIC (administrator of LI KWOK HAY, deceased); LEE ALAN KWONG LOON (executor of LI KWOK FAN, deceased); LI WAI; LEE KWONG LAI STANLEY; LI KWONG HING; LEE KWONG TING KENNETH; LEE KWONG YUEN MICHAEL; CHUNG YUK KWAN (administratrix of KWOK SHUI LI, deceased); SANDY KWOK MAN LI; LI KOON SANG; LI SHUI YUEN; YU WAN SHEUNG (administratrix of LI KWOK MING, deceased); LI KWOK FUNG; LI KWOK CHU RAYMOND; LEE KWOK WAI; LI KWOK LAM WILLIAM; LI KWOK LUNG; LI KWOK LING (also known as KWOK LING LI); LI KWOK LAI ROCKY; LI KWOK CHING; LEE KWOK KIN KENNY

Plaintiffs

Person(s) unknown in occupation of part (as marked in Orange in the attached plan) of Lot No. 2223 in D.D. 76, North, New Territories

1st Defendant

Yeung Chung Ying

2nd Defendant

Procedural Posture

Possession of Land (order 113 Originating Summons) / Judgment

Legal Issues

  1. 1 Whether the 2nd defendant acquired title by adverse possession to the Pink Area
  2. 2 Whether the 2nd defendant or her father were tenants or had the necessary animus possidendi to acquire title
  3. 3 Whether the Originating Summons service under Order 113 on the 1st defendant complied with service requirements

Ratio Decidendi

The 2nd defendant failed to prove the twin requirements of factual possession and animus possidendi for the requisite 12 years: the father remained a tenant and lacked intention to exclude the owners; the 2nd defendant's possession only commenced (as evidenced by CLP and aerial photos) between July and November 2007 with electricity and renovation activity thereafter, falling short of 12 years; accordingly plaintiffs are entitled to possession, the 2nd defendant's counterclaim is dismissed, and service on the 1st defendant was invalid so proceedings against them are adjourned sine die.

Court Disposition

Plaintiffs' claim for recovery of possession allowed against the 2nd defendant; 2nd defendant's counterclaim for adverse possession dismissed; proceedings against 1st defendant adjourned sine die with liberty to apply; costs order nisi made in favour of plaintiffs against 2nd defendant.

Orders

  • Proceedings against the 1st defendant adjourned sine die with liberty to apply and no order as to costs between the plaintiffs and the 1st defendant
  • The 2nd defendant shall deliver up vacant possession of the Pink Area to the plaintiffs within 3 months from the date of service of the Order made under this Judgment