LU XIAOHUA, the administratrix of the estate of WONG YIU CHUNG, deceased v. HAU SHUN CHI NELSON

LU XIAOHUA, the administratrix of the estate of WONG YIU CHUNG, deceased v. HAU SHUN CHI NELSON

On the balance of probabilities the court found the Wong family had continuous exclusive factual possession and the requisite intention to possess Lot 214A from 1975 to 2016; the defendant failed to prove any licence/consent that would negate adverse possession; the presumption of encroachment (if applicable) was rebutted by the specific history and arrangements; accordingly the defendant's registered title was extinguished under section 17 of the Limitation Ordinance and the estate of Wong acquired a possessory title; the counterclaim was dismissed and the applicant's request for a statutory assignment was refused.

Citation
[2020] HKDC 153
Parties
Plaintiff (administratrix of the Estate of WONG YIU Chung); Defendant (by Counterclaim): LU XIAOHUA; Defendant (original Action); Plaintiff (by Counterclaim): HAU SHUN CHI NELSON
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 March 2020
Case Number
DCCJ287/2016
Procedural Posture
Adverse Possession / Trial Judgment
Outcome
Declaration granted that defendant's registered title extinguished under section 17 Limitation Ordinance and estate of Wong acquired possessory title; counterclaim dismissed; order for assignment refused; costs ordered nisi in favour of Lu
Legal Topics
Adverse Possession, Factual Possession, Intention to Possess, Presumption of Encroachment, Evidentiary Weight of Aerial/photographic Evidence
Source Language
EN
Property Law Land Law Civil Procedure Limitation Law Adverse Possession Factual Possession Intention to Possess Presumption of Encroachment +1 more

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Parties

LU XIAOHUA

Plaintiff (administratrix of the Estate of WONG YIU Chung); Defendant (by Counterclaim)

HAU SHUN CHI NELSON

Defendant (original Action); Plaintiff (by Counterclaim)

Procedural Posture

Adverse Possession / Trial Judgment

Legal Issues

  1. 1 Whether the Wong family had factual possession of Lot 214A from 1975 to 2016
  2. 2 Whether the Wong family had the requisite intention to possess Lot 214A
  3. 3 Whether the alleged licence/consent from the Hau family negated adverse possession

Ratio Decidendi

On the balance of probabilities the court found the Wong family had continuous exclusive factual possession and the requisite intention to possess Lot 214A from 1975 to 2016; the defendant failed to prove any licence/consent that would negate adverse possession; the presumption of encroachment (if applicable) was rebutted by the specific history and arrangements; accordingly the defendant's registered title was extinguished under section 17 of the Limitation Ordinance and the estate of Wong acquired a possessory title; the counterclaim was dismissed and the applicant's request for a statutory assignment was refused.

Court Disposition

Declaration granted that defendant's registered title extinguished under section 17 Limitation Ordinance and estate of Wong acquired possessory title; counterclaim dismissed; order for assignment refused; costs ordered nisi in favour of Lu

Orders

  • Declaration that the defendant's title in respect of Lot 214A has been extinguished pursuant to section 17 of the Limitation Ordinance
  • Declaration that the estate of Wong has acquired a possessory title to Lot 214A