FAN CHI PING v. THE ESTATE OF LEI WING LONG AND ANOTHER

FAN CHI PING v. THE ESTATE OF LEI WING LONG AND ANOTHER

Plaintiff had uninterrupted exclusive possession for the statutory period prior to government resumption, thus acquiring a possessory title under section 7 of the Limitation Ordinance, and the mortgage claimed by the 2nd Defendant is unenforceable by operation of the Limitation Ordinance given long inaction and absence of proof.

Citation
FAN CHI PING v. THE ESTATE OF LEI WING LONG AND ANOTHER
Parties
Plaintiff: Fan Chi Ping; 1st Defendant: The Estate of Lei Wing Long also known as Lei Weng Long, deceased; 2nd Defendant: Fan Sam Wai Tong with its managers Fan Muk Kwai and Fan Kum Hay
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
31 July 2012
Case Number
HCA913/2011
Procedural Posture
Possessory Title / Land Dispute Seeking Declarations / Judgment
Outcome
Declarations granted in favour of the plaintiff
Legal Topics
Possessory Title, Limitation of Actions, Mortgage Enforceability, Adverse Possession
Source Language
EN
Property Law Limitation Law Mortgages Land Resumption Possessory Title Limitation of Actions Mortgage Enforceability Adverse Possession

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Parties

Fan Chi Ping

Plaintiff

The Estate of Lei Wing Long also known as Lei Weng Long, deceased

1st Defendant

Fan Sam Wai Tong with its managers Fan Muk Kwai and Fan Kum Hay

2nd Defendant

Procedural Posture

Possessory Title / Land Dispute Seeking Declarations / Judgment

Legal Issues

  1. 1 Whether plaintiff acquired possessory title by long possession
  2. 2 Whether mortgages recorded against the land remain enforceable given the Limitation Ordinance
  3. 3 Effect of absence/non‑production of mortgage deeds by mortgagee managers

Ratio Decidendi

Plaintiff had uninterrupted exclusive possession for the statutory period prior to government resumption, thus acquiring a possessory title under section 7 of the Limitation Ordinance, and the mortgage claimed by the 2nd Defendant is unenforceable by operation of the Limitation Ordinance given long inaction and absence of proof.

Court Disposition

Declarations granted in favour of the plaintiff

Orders

  • I declare that the Plaintiff has acquired a good possessory title to the land by virtue of section 7 of the Limitation Ordinance.
  • I declare that the mortgage of the 2nd Defendant is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance.