PANG MOON WAN AND ANOTHER v. YU CHI FOON AND OTHERS

PANG MOON WAN AND ANOTHER v. YU CHI FOON AND OTHERS

The court found the 1961 agreement to be a tenancy (not an assignment); the tenancy and receipt of rents constituted acts of ownership and counted towards adverse possession notwithstanding the defendants' reliance on ss12(3) and 13(3) Limitation Ordinance; the plaintiffs (through their predecessor) had factual possession and animus possidendi of the Lots (including the Footpath) for the requisite period so the defendants' registered title to defined parts of Lots 2287, 2296, 2299 and 2302 was extinguished under ss7 and 17 Limitation Ordinance; accordingly the plaintiffs' claim was allowed (with certain reliefs limited) and the defendants' counterclaim dismissed.

Citation
PANG MOON WAN AND ANOTHER v. YU CHI FOON AND OTHERS
Parties
1st Plaintiff: Pang Moon Wan; 2nd Plaintiff: Ho Oi Fung; 1st Defendant: Yu Chi Foon; 2nd Defendant: Yue Edwin Wing Kwong; 3rd Defendant: K Yim Bing; 4th Defendant: Yu Kai Chiu
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 June 2016
Case Number
DCMP2331/2015
Procedural Posture
Adverse Possession Proceeding Under Limitation Ordinance (order 113 Transferred) / Judgment After Trial
Outcome
Plaintiffs' claim allowed in part; defendants' counterclaim dismissed
Legal Topics
Adverse Possession, Tenancy Vs Assignment, Possession Through Tenant, Limitation Periods (s7, S17), Animus Possidendi
Source Language
EN
Property Law Limitation Law Equity Adverse Possession Tenancy Vs Assignment Possession Through Tenant Limitation Periods (s7, S17) Animus Possidendi

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Pang Moon Wan

1st Plaintiff

Ho Oi Fung

2nd Plaintiff

Yu Chi Foon

1st Defendant

Yue Edwin Wing Kwong

2nd Defendant

K Yim Bing

3rd Defendant

Yu Kai Chiu

4th Defendant

Procedural Posture

Adverse Possession Proceeding Under Limitation Ordinance (order 113 Transferred) / Judgment After Trial

Legal Issues

  1. 1 Whether the 1961 agreement was a tenancy or an assignment
  2. 2 Whether the tenanted period counts for adverse possession under s12(3) and s13(3) Limitation Ordinance
  3. 3 Whether the plaintiffs (and/or their predecessor) acquired adverse possession of the Lots sufficient to extinguish the registered title under ss7 and 17 Limitation Ordinance

Ratio Decidendi

The court found the 1961 agreement to be a tenancy (not an assignment); the tenancy and receipt of rents constituted acts of ownership and counted towards adverse possession notwithstanding the defendants' reliance on ss12(3) and 13(3) Limitation Ordinance; the plaintiffs (through their predecessor) had factual possession and animus possidendi of the Lots (including the Footpath) for the requisite period so the defendants' registered title to defined parts of Lots 2287, 2296, 2299 and 2302 was extinguished under ss7 and 17 Limitation Ordinance; accordingly the plaintiffs' claim was allowed (with certain reliefs limited) and the defendants' counterclaim dismissed.

Court Disposition

Plaintiffs' claim allowed in part; defendants' counterclaim dismissed

Orders

  • Declaration that the defendants' title to those parts of Lots 2287, 2296, 2299 and 2302 as defined by the Lot Index Plan at [Bundle III/513] has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347)
  • Declaration that the 2nd plaintiff has established a possessory title to those aforesaid parts as against the defendants