FONG KAI SING v. CHAN CHI WAI ALEX AND OTHERS

FONG KAI SING v. CHAN CHI WAI ALEX AND OTHERS

The Deed was objectively construed as an outright gift of the Occupied Area; the plaintiff demonstrated exclusive physical possession and the requisite animus possidendi for the statutory period (more than 20 years prior to writ) so that the defendants' registered titles to the Occupied Area were extinguished under the Limitation Ordinance.

Citation
[2018] HKDC 1331
Parties
Plaintiff: Fong Kai Sing; 1st Defendant: Chan Chi Wai Alex; 2nd Defendant: Chan Ching Yi Anna; 3rd Defendant: Wong Kwok Leung Patrick
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 November 2018
Case Number
DCCJ5128/2015
Procedural Posture
Civil Action Concerning Title to Land (adverse Possession) / Judgment After Trial (district Court)
Outcome
Judgment for plaintiff: declarations granted that plaintiff has acquired possessory title by adverse possession and defendants' titles extinguished; costs order nisi in favour of plaintiff
Legal Topics
Adverse Possession, Possessory Title, Deed of Gift Construction, Licence Vs Tenancy, Extinguishment of Title Under Limitation
Source Language
EN
Property Law Land Law Limitation Law Civil Procedure Adverse Possession Possessory Title Deed of Gift Construction Licence Vs Tenancy +1 more

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Parties

Fong Kai Sing

Plaintiff

Chan Chi Wai Alex

1st Defendant

Chan Ching Yi Anna

2nd Defendant

Wong Kwok Leung Patrick

3rd Defendant

Procedural Posture

Civil Action Concerning Title to Land (adverse Possession) / Judgment After Trial (district Court)

Legal Issues

  1. 1 Nature and legal effect of the 1948 Deed (gift, licence or life tenancy)
  2. 2 Whether plaintiff established factual possession and animus possidendi to acquire possessory title by adverse possession
  3. 3 Whether registered owners' titles to the Occupied Area were extinguished under the Limitation Ordinance

Ratio Decidendi

The Deed was objectively construed as an outright gift of the Occupied Area; the plaintiff demonstrated exclusive physical possession and the requisite animus possidendi for the statutory period (more than 20 years prior to writ) so that the defendants' registered titles to the Occupied Area were extinguished under the Limitation Ordinance.

Court Disposition

Judgment for plaintiff: declarations granted that plaintiff has acquired possessory title by adverse possession and defendants' titles extinguished; costs order nisi in favour of plaintiff

Orders

  • Declaration that the plaintiff has acquired possessory title of the Occupied Area (as defined in the expert Report) by reason of adverse possession
  • Declaration that the 1st, 2nd and 3rd defendants' respective titles to the Occupied Area (as defined in the Report) have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347