THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS A, B, E & F) AND ANOTHER v. WONG YUET HAN黃月嫻trading as MAN LEE HONG民利行, being THE OCCUPIER OF A STRUCTURE ERECTED UNDER THE ESCAPE STAIRCASE LEADING TO NO. 265 UN CHAU STREET ON GROUND FLOOR AND OTHERS

THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS A, B, E & F) AND ANOTHER v. WONG YUET HAN黃月嫻trading as MAN LEE HONG民利行, being THE OCCUPIER OF A STRUCTURE ERECTED UNDER THE ESCAPE STAIRCASE LEADING TO NO. 265 UN CHAU STREET ON GROUND FLOOR AND OTHERS

Defendants failed to discharge the heavy burden of proving adverse possession: their evidence lacked compelling proof of requisite animus and in many respects was equivocal or inconsistent; documentary and witness evidence established a longstanding licence arrangement administered by the Owners' Association and continued by Ps/MVO with monthly nominal fees; occupation was therefore permissive and not adverse; plaintiffs are entitled to vacant possession and mesne profits at HK$700 per month from 1 May 2018 until delivery of possession; however the 4th defendant acquired possessory title to the small Cabinet Areas and Ps' title to them is extinguished under the Limitation Ordinance...

Citation
[2024] HKDC 1484
Parties
1st Plaintiff: THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS A, B, E & F); 2nd Plaintiff: THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS C & D); 1st Defendant: WONG YUET HAN 黃月嫻 trading as MAN LEE HONG 民利行; 2nd Defendant: POON SIU LI; 3rd Defendant: CHENG CHOI NGOR, personal representative of the estate of CHAN WOON SHING; 4th Defendant: POON SHUN PING; 5th Defendant: WONG SUK MEI 黃淑美
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
9 September 2024
Case Number
DCCJ4219/2018
Procedural Posture
Recovery of Possession of Common Parts / Judgment After Trial
Outcome
Judgment for Plaintiffs. Adverse possession claims dismissed except limited possessory finding for 4th Defendant over Cabinet Areas; Plaintiffs granted vacant possession and mesne profits; detailed costs orders made.
Legal Topics
Adverse Possession, Licence (implied and Express), Mesne Profits, Vacant Possession, Limitation, Common Parts, Costs Apportionment
Source Language
EN
Property Adverse Possession Building Management Land Law Civil Procedure Costs Licence (implied and Express) Mesne Profits +4 more

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Parties

THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS A, B, E & F)

1st Plaintiff

THE INCORPORATED OWNERS OF CHEONG FAT FACTORY BUILDING (FLATS C & D)

2nd Plaintiff

WONG YUET HAN 黃月嫻 trading as MAN LEE HONG 民利行

1st Defendant

POON SIU LI

2nd Defendant

CHENG CHOI NGOR, personal representative of the estate of CHAN WOON SHING

3rd Defendant

POON SHUN PING

4th Defendant

WONG SUK MEI 黃淑美

5th Defendant

Procedural Posture

Recovery of Possession of Common Parts / Judgment After Trial

Legal Issues

  1. 1 Whether defendants acquired title by adverse possession of the respective staircase/common parts
  2. 2 Whether plaintiffs' claims are time-barred or extinguished under the Limitation Ordinance
  3. 3 Whether occupation was by licence from Owners' Association/Pls and effect on adversity

Ratio Decidendi

Defendants failed to discharge the heavy burden of proving adverse possession: their evidence lacked compelling proof of requisite animus and in many respects was equivocal or inconsistent; documentary and witness evidence established a longstanding licence arrangement administered by the Owners' Association and continued by Ps/MVO with monthly nominal fees; occupation was therefore permissive and not adverse; plaintiffs are entitled to vacant possession and mesne profits at HK$700 per month from 1 May 2018 until delivery of possession; however the 4th defendant acquired possessory title to the small Cabinet Areas and Ps' title to them is extinguished under the Limitation Ordinance...

Court Disposition

Judgment for Plaintiffs. Adverse possession claims dismissed except limited possessory finding for 4th Defendant over Cabinet Areas; Plaintiffs granted vacant possession and mesne profits; detailed costs orders made.

Orders

  • 1st Defendant to deliver vacant possession of structure under escape staircase leading to No 265 Un Chau Street (Occupied Staircase 265) to 1st Plaintiff
  • 1st Defendant to pay mesne profits of HK$700 per month to 1st Plaintiff from 1 May 2018 until delivery of vacant possession