WU KAI WAI AND OTHERS v. OCCUPANTS OF LOT NO. 316 IN D.D. 128, YUEN LONG, NEW TERRITORIES AND ANOTHER

WU KAI WAI AND OTHERS v. OCCUPANTS OF LOT NO. 316 IN D.D. 128, YUEN LONG, NEW TERRITORIES AND ANOTHER

The 2nd defendant failed to prove clear, continuous factual possession and animus possidendi of the whole Lot for the requisite period; objective aerial and expert evidence established occupation and structures on the Southern Portion since the early 1980s attributable to the defendant's father, but evidence showed the Northern Portion was only cleared, fenced and developed from c.2007–2013, so adverse possession is only established for the Southern Portion leading to declarations extinguishing plaintiffs' title to that portion and an order for vacant possession of the Northern Portion.

Citation
[2021] HKDC 1538
Parties
1st Plaintiff: WU KAI WAI; 2nd Plaintiff: WU KAI HIN; 3rd Plaintiff: WU LIN HOR; 4th Plaintiff: WU LIN SAN; 5th Plaintiff: WU FOO TAI; 6th Plaintiff: WU KWONG SAN, administrator of the estate of WU SIU HING also known as WU SHIU HING, deceased; 1st Defendant: OCCUPANTS OF LOT NO. 316 IN D.D. 128, YUEN LONG, NEW TERRITORIES; 2nd Defendant: LUI CHUN SHING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 December 2021
Case Number
DCCJ3740/2017
Procedural Posture
Civil Action Claim for Vacant Possession, Mense Profits and Declarations of Title / Trial Judgment (final)
Outcome
Judgment for plaintiffs in part and for 2nd defendant in part: plaintiffs granted vacant possession of Northern Portion; 2nd defendant declared adversely possession and possessory title to Southern Portion; costs order nisi (no order as to costs).
Legal Topics
Adverse Possession, Vacant Possession, Possessory Title, Evidence and Burden of Proof, Declaratory Relief
Source Language
EN
Property Land Law Civil Procedure Adverse Possession Vacant Possession Possessory Title Evidence and Burden of Proof Declaratory Relief

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Parties

WU KAI WAI

1st Plaintiff

WU KAI HIN

2nd Plaintiff

WU LIN HOR

3rd Plaintiff

WU LIN SAN

4th Plaintiff

WU FOO TAI

5th Plaintiff

WU KWONG SAN, administrator of the estate of WU SIU HING also known as WU SHIU HING, deceased

6th Plaintiff

OCCUPANTS OF LOT NO. 316 IN D.D. 128, YUEN LONG, NEW TERRITORIES

1st Defendant

LUI CHUN SHING

2nd Defendant

Procedural Posture

Civil Action Claim for Vacant Possession, Mense Profits and Declarations of Title / Trial Judgment (final)

Legal Issues

  1. 1 Whether the 2nd defendant established continuous factual possession and animus possidendi for the whole Lot for 12 years prior to 2005
  2. 2 Whether any oral tenancy and rent payments existed between the plaintiffs and the defendant/defendant's father
  3. 3 Whether adverse possession can be established in respect of part only of the Lot

Ratio Decidendi

The 2nd defendant failed to prove clear, continuous factual possession and animus possidendi of the whole Lot for the requisite period; objective aerial and expert evidence established occupation and structures on the Southern Portion since the early 1980s attributable to the defendant's father, but evidence showed the Northern Portion was only cleared, fenced and developed from c.2007–2013, so adverse possession is only established for the Southern Portion leading to declarations extinguishing plaintiffs' title to that portion and an order for vacant possession of the Northern Portion.

Court Disposition

Judgment for plaintiffs in part and for 2nd defendant in part: plaintiffs granted vacant possession of Northern Portion; 2nd defendant declared adversely possession and possessory title to Southern Portion; costs order nisi (no order as to costs).

Orders

  • 1st and 2nd defendants shall deliver vacant possession of the Northern Portion of Lot No.316 in D.D.128 to the plaintiffs (1st–6th plaintiffs)
  • Declaration that the plaintiffs' title in respect of the Southern Portion of the Lot (areas occupied by structures S1 and S2 as identified in the Joint Expert Report dated 31 December 2019) has been extinguished and plaintiffs are barred from recovering possession of those areas