LAU WING HONG AND OTHERS v. WONG WOR HUNG AND ANOTHER

LAU WING HONG AND OTHERS v. WONG WOR HUNG AND ANOTHER

The Court held that adverse possession consists of factual possession and an intention to possess; the English encroachment presumption is part of Hong Kong law but is rebuttable; on the facts the landlord disclaimed any interest in the encroached land in August 1974 thereby rebutting the presumption; the Defendants...

Source-derived case information.

Citation
LAU WING HONG AND OTHERS v. WONG WOR HUNG AND ANOTHER
Parties
1st Plaintiff: Lau Wing Hong; 2nd Plaintiff: Lau Koon Hay; 3rd Plaintiff: Lau Koon Loi; 4th Plaintiff: Nam Chi Cheung, Raymond; 5th Plaintiff: Lam Kwok Chuen; 1st Defendant: Wong Wor Hung; 2nd Defendant: Li Wai Kin
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 September 2006
Case Number
HCA1454/2003
Procedural Posture
Action No.1454 of 2003 Land Dispute (trespass / Adverse Possession) / Judgment at Court of First Instance (recorder Mc Coy Sc)
Outcome
Partial judgment: plaintiffs' trespass claim succeeds only as to Lot 136 SB ss1 (the rented land); defendants' counterclaim for adverse possession succeeds as to Lot 137 SA RP and the portions of Lot 137 SA ss3, ss4 and ss5 within the A-B-C-Q-D-E-F-G-H-I-A area as per the Court's plan; other relief adjourned.
Legal Topics
Encroachment Presumption, Factual Possession, Animus Possidendi, Tacking, Constitutionality of Limitation Periods, Compensation Following Deprivation of Registered Title
Source Language
en
Property Law Land Law Adverse Possession Landlord and Tenant Law Limitations Encroachment Presumption Factual Possession Animus Possidendi +3 more

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Parties

Lau Wing Hong

1st Plaintiff

Lau Koon Hay

2nd Plaintiff

Lau Koon Loi

3rd Plaintiff

Nam Chi Cheung, Raymond

4th Plaintiff

Lam Kwok Chuen

5th Plaintiff

Wong Wor Hung

1st Defendant

Li Wai Kin

2nd Defendant

Procedural Posture

Action No.1454 of 2003 Land Dispute (trespass / Adverse Possession) / Judgment at Court of First Instance (recorder Mc Coy Sc)

Legal Issues

  1. 1 Whether the Defendants had trespassed on the Plaintiffs' registered lots by occupation behind the fence and erection/extension of huts
  2. 2 Whether the Defendants had acquired title by adverse possession to the disputed land and, if so, the extent of that land
  3. 3 Whether the English doctrine presuming tenant encroachments are for the landlord (Kingsmill v Millard / encroachment presumption) forms part of Hong Kong law and whether it applies to land of third parties

Ratio Decidendi

The Court held that adverse possession consists of factual possession and an intention to possess; the English encroachment presumption is part of Hong Kong law but is rebuttable; on the facts the landlord disclaimed any interest in the encroached land in August 1974 thereby rebutting the presumption; the Defendants demonstrated factual possession and intention (enclosure, maintenance, habitation) for the requisite period and succeed on their counterclaim to the specified portions of Lot 137 (Lot 137 SA RP and the parts of ss3, ss4 and ss5 within the A-B-C-Q-Z-I-A boundary), while the 4th and 5th Plaintiffs succeed only in relation to Lot 136 SB ss1 (the rented land); consequential...

Court Disposition

Partial judgment: plaintiffs' trespass claim succeeds only as to Lot 136 SB ss1 (the rented land); defendants' counterclaim for adverse possession succeeds as to Lot 137 SA RP and the portions of Lot 137 SA ss3, ss4 and ss5 within the A-B-C-Q-D-E-F-G-H-I-A area as per the Court's plan; other relief adjourned.

Orders

  • Declare that the 4th and 5th Plaintiffs succeed in trespass only in respect of Lot 136 SB ss1
  • Declare that the Defendants succeed on their counterclaim by adverse possession in respect of Lot 137 SA RP and those portions of Lot 137 SA ss3, ss4 and ss5 within the A-B-C-Q-D-E-F-G-H-I-A boundary shown in the Court plan