KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. CHAN CHUNG CHAU AND OTHERS

KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. CHAN CHUNG CHAU AND OTHERS

On the evidence the Family established factual possession and animus possidendi of Lots CD from 1977 to at least 1997 such that the registered owner's title was extinguished by limitation in 1997; the 2004 Tenancy Agreement and any subsequent rent payments do not revive or negate the prior adverse possession; the Family failed to prove factual possession or requisite intention in relation to Lots AB and the Company, as registered owner, is entitled to recover vacant possession and mesne profits for AB.

Citation
KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. CHAN CHUNG CHAU AND OTHERS
Parties
Plaintiff: KAM SHAN MING DEVELOPMENT ENGINEERING LIMITED; 1st Defendant: CHAN CHUNG CHAU; 2nd Defendant: ALL PERSONS IN OCCUPATION OF ALL THOSE PIECES OR PARCELS OF GROUND REGISTERED IN THE LAND REGISTRY AS LOT NOS 767 AND 768 BOTH IN DEMARCATION DISTRICT NO 105 YUEN LONG NEW TERRITORIES HONG KONG TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDINGS ERECTED THEREON; 3rd Defendant: JU TAVORNPANICH; 4th Defendant: CHAN SHUK FAN
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 June 2016
Case Number
DCMP746/2013
Procedural Posture
Adverse Possession / Recovery of Land and Mesne Profits (consolidated DCMP 746/2013 & DCCJ 877/2013) / Judgment Delivered 8 June 2016
Outcome
Judgment: plaintiff succeeds for Lots AB; defendant family succeeds in counterclaim for Lots CD by adverse possession.
Legal Topics
Adverse Possession, Possessory Title, Mesne Profits, Tenancy Agreement, Rescission for Misrepresentation, Encroachment, Limitation Ordinance Ss 7 and 17
Source Language
EN
Property Law Limitation of Actions Landlord and Tenant Civil Procedure Adverse Possession Possessory Title Mesne Profits Tenancy Agreement +3 more

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Parties

KAM SHAN MING DEVELOPMENT ENGINEERING LIMITED

Plaintiff

CHAN CHUNG CHAU

1st Defendant

ALL PERSONS IN OCCUPATION OF ALL THOSE PIECES OR PARCELS OF GROUND REGISTERED IN THE LAND REGISTRY AS LOT NOS 767 AND 768 BOTH IN DEMARCATION DISTRICT NO 105 YUEN LONG NEW TERRITORIES HONG KONG TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDINGS ERECTED THEREON

2nd Defendant

JU TAVORNPANICH

3rd Defendant

CHAN SHUK FAN

4th Defendant

Procedural Posture

Adverse Possession / Recovery of Land and Mesne Profits (consolidated DCMP 746/2013 & DCCJ 877/2013) / Judgment Delivered 8 June 2016

Legal Issues

  1. 1 Whether the Family had factual possession of the Four Lots for 20 years prior to proceedings
  2. 2 Whether the Family had the requisite animus possidendi during the period
  3. 3 What effect the 2004 Tenancy Agreement had on title and adverse possession

Ratio Decidendi

On the evidence the Family established factual possession and animus possidendi of Lots CD from 1977 to at least 1997 such that the registered owner's title was extinguished by limitation in 1997; the 2004 Tenancy Agreement and any subsequent rent payments do not revive or negate the prior adverse possession; the Family failed to prove factual possession or requisite intention in relation to Lots AB and the Company, as registered owner, is entitled to recover vacant possession and mesne profits for AB.

Court Disposition

Judgment: plaintiff succeeds for Lots AB; defendant family succeeds in counterclaim for Lots CD by adverse possession.

Orders

  • The Family do deliver vacant possession of Lots AB to the Company forthwith
  • The Family do pay mesne profits at HK$800 per annum to the Company for occupation of Lots AB from 29 August 2012 to the date hereof, in the sum of HK$3,024