FUNG YAU LIN AND OTHERS v. TANG PING KUEN AND OTHERS

FUNG YAU LIN AND OTHERS v. TANG PING KUEN AND OTHERS

The defendants failed to discharge the high burden required to establish adverse possession: expert aerial evidence and reliable witness evidence show the land was largely fallow (not subject to exclusive occupation) for the relevant years, the asserted cultivation (notably 'potato leaves') was unpleaded and unsupported, fences and hoardings are first observable only from 2013, and the acts prior to 2013 are insufficient in extent and exclusivity to prove factual possession and intention for the limitation period; accordingly the plaintiffs' registered title stands and possession is awarded to the plaintiffs.

Citation
[2020] HKDC 262
Parties
1st Plaintiff: FUNG YAU LIN; 2nd Plaintiff: FUNG KWAI LAN; 3rd Plaintiff: FUNG YUN NAM; 4th Plaintiff: FUNG YUN MAN; 1st Defendant (discontinued): TANG PING KUEN; 2nd Defendant: UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D.100 NORTH NEW TERRITORIES HONG KONG; 3rd Defendant: LAM SHUET YING; 4th Defendant: TANG PING WAH
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 May 2020
Case Number
DCCJ1005/2017
Procedural Posture
Civil Action for Recovery of Possession and Declaration of Possessory Title (adverse Possession) / District Court Judgment After Trial (decision Delivered)
Outcome
Plaintiffs' claim allowed; Relevant Defendants' counterclaim dismissed.
Legal Topics
Adverse Possession, Possessory Title, Limitation Ordinance Cap 347, Factual Possession, Intention to Possess, Evidentiary Burden and Credibility, Remedies (possession and Demolition)
Source Language
EN
Property Law Adverse Possession Limitation Law Civil Procedure Evidence Law Possessory Title Limitation Ordinance Cap 347 Factual Possession +3 more

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Parties

FUNG YAU LIN

1st Plaintiff

FUNG KWAI LAN

2nd Plaintiff

FUNG YUN NAM

3rd Plaintiff

FUNG YUN MAN

4th Plaintiff

TANG PING KUEN

1st Defendant (discontinued)

UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D.100 NORTH NEW TERRITORIES HONG KONG

2nd Defendant

LAM SHUET YING

3rd Defendant

TANG PING WAH

4th Defendant

Procedural Posture

Civil Action for Recovery of Possession and Declaration of Possessory Title (adverse Possession) / District Court Judgment After Trial (decision Delivered)

Legal Issues

  1. 1 Whether the Relevant Defendants acquired possessory title by adverse possession of parts of Lot 697 and Lot 700 since October 1991
  2. 2 Whether acts of cultivation, fencing, guard dogs and building a private road satisfied factual possession and the requisite intention to exclude the world at large
  3. 3 Whether the Limitation Ordinance Cap 347 extinguished the plaintiffs' registered title for the Alleged Occupied Land

Ratio Decidendi

The defendants failed to discharge the high burden required to establish adverse possession: expert aerial evidence and reliable witness evidence show the land was largely fallow (not subject to exclusive occupation) for the relevant years, the asserted cultivation (notably 'potato leaves') was unpleaded and unsupported, fences and hoardings are first observable only from 2013, and the acts prior to 2013 are insufficient in extent and exclusivity to prove factual possession and intention for the limitation period; accordingly the plaintiffs' registered title stands and possession is awarded to the plaintiffs.

Court Disposition

Plaintiffs' claim allowed; Relevant Defendants' counterclaim dismissed.

Orders

  • Defendants to deliver vacant possession of the Land to the plaintiffs within 90 days (three months)
  • Order nisi that the Relevant Defendants pay the costs of the claim and the counterclaim to the plaintiffs to be taxed if not agreed with a certificate for counsel