TSOI LAU FU AND ANOTHER v. PANG WAN FONG AND OTHERS

TSOI LAU FU AND ANOTHER v. PANG WAN FONG AND OTHERS

The 2nd defendant failed to prove the requisite factual possession and animus possidendi: the paving and low walls did not establish exclusive control or steps to exclude others, villagers regularly used the area, and the 2nd defendant's evidence was unreliable; accordingly adverse possession was not established and the plaintiffs are entitled to possession.

Citation
[2019] HKDC 159
Parties
1st Plaintiff: TSOI LAU FU; 2nd Plaintiff: TSOI LAU CHUK alias TSOI LAU CHUCK; 1st Defendant: PANG WAN FONG; 2nd Defendant: FUNG LIN PAK PHILIP; 3rd Defendant: WONG SHU LAN
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 February 2019
Case Number
DCCJ1051/2016
Procedural Posture
Civil Action Recovery of Land / Judgment (district Court)
Outcome
Plaintiffs' claim allowed; 2nd defendant's counterclaim dismissed
Legal Topics
Adverse Possession, Factual Possession, Animus Possidendi, Mesne Profits, Recovery of Possession, Evidence and Credibility
Source Language
EN
Property Land Law Adverse Possession Limitation Factual Possession Animus Possidendi Mesne Profits Recovery of Possession +1 more

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Parties

TSOI LAU FU

1st Plaintiff

TSOI LAU CHUK alias TSOI LAU CHUCK

2nd Plaintiff

PANG WAN FONG

1st Defendant

FUNG LIN PAK PHILIP

2nd Defendant

WONG SHU LAN

3rd Defendant

Procedural Posture

Civil Action Recovery of Land / Judgment (district Court)

Legal Issues

  1. 1 Whether the 2nd defendant acquired possessory title by adverse possession of the disputed part of Section A of Lot 97
  2. 2 Whether the 2nd defendant had factual possession with sufficient exclusive control
  3. 3 Whether the 2nd defendant had the requisite animus possidendi to exclude the world at large

Ratio Decidendi

The 2nd defendant failed to prove the requisite factual possession and animus possidendi: the paving and low walls did not establish exclusive control or steps to exclude others, villagers regularly used the area, and the 2nd defendant's evidence was unreliable; accordingly adverse possession was not established and the plaintiffs are entitled to possession.

Court Disposition

Plaintiffs' claim allowed; 2nd defendant's counterclaim dismissed

Orders

  • 2nd defendant ordered to deliver vacant possession of the part of Section A of Lot 97 identified in the Encroachment Plan (part coloured in pink)
  • Award of mesne profits/damages to plaintiffs of HK$10