何幹業 對 麥興龍及另二人

何幹業 對 麥興龍及另二人

Defendants failed to prove the necessary elements of adverse possession: their evidence lacked credibility and did not establish single and conclusive factual possession or an unequivocal intention to exclude the registered owner for the requisite period; occupier's use was pursuant to a licence (oral then written) which was validly terminated and therefore the Limitation Ordinance did not extinguish the plaintiff's title; accordingly plaintiff's claim for possession succeeds and defendants' counterclaims for title by adverse possession are dismissed.

Citation
何幹業 對 麥興龍及另二人
Parties
Plaintiff: HO, STEPHEN KON IP; First Defendant: MAK, HING LUNG; Second Defendant: UNKNOWN OCCUPIERS; Third Defendant: CHEUNG HANG PING
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
15 September 2017
Case Number
DCMP3210/2013
Procedural Posture
Recovery of Possession of Land (order 113, District Court) / Trial and Judgment (regional Court)
Outcome
Plaintiff's claim for recovery of possession allowed; first and third defendants' counterclaims for adverse possession dismissed; second defendant absent and ordered to yield possession.
Legal Topics
Adverse Possession, Licence Vs Title, Factual Possession, Animus Possidendi, Prescription, Costs
Source Language
CH
Property Law Adverse Possession Limitation Law Contract/licence Law Licence Vs Title Factual Possession Animus Possidendi Prescription +1 more

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Parties

HO, STEPHEN KON IP

Plaintiff

MAK, HING LUNG

First Defendant

UNKNOWN OCCUPIERS

Second Defendant

CHEUNG HANG PING

Third Defendant

Procedural Posture

Recovery of Possession of Land (order 113, District Court) / Trial and Judgment (regional Court)

Legal Issues

  1. 1 Whether any defendant acquired title by adverse possession
  2. 2 Whether the occupiers had factual possession and animus possidendi for the limitation period
  3. 3 Whether a licence (written or oral) precluded adverse possession

Ratio Decidendi

Defendants failed to prove the necessary elements of adverse possession: their evidence lacked credibility and did not establish single and conclusive factual possession or an unequivocal intention to exclude the registered owner for the requisite period; occupier's use was pursuant to a licence (oral then written) which was validly terminated and therefore the Limitation Ordinance did not extinguish the plaintiff's title; accordingly plaintiff's claim for possession succeeds and defendants' counterclaims for title by adverse possession are dismissed.

Court Disposition

Plaintiff's claim for recovery of possession allowed; first and third defendants' counterclaims for adverse possession dismissed; second defendant absent and ordered to yield possession.

Orders

  • First defendant Mak Hing Lung to deliver possession of the part of the 2nd Hut lying within the registered land (green area on plan) to the plaintiff.
  • Second defendant (Unknown Occupiers) to deliver possession of the land (yellow, green and pink areas on plan) to the plaintiff.