KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. 陳松周

KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. 陳松周

The court found the Family established adverse possession of Lots CD from 1977 such that the owner's title was extinguished in 1997 under the Limitation Ordinance; the 2004 Tenancy Agreement and any payments did not revive the owner's title nor negate the Family's earlier animus possidendi; the Family failed to prove factual possession or animus for Lots AB and the plaintiff, as registered owner, is entitled to recover Lots AB and mesne profits from 29 August 2012 at HK$800 per annum.

Citation
KAM SHAN MING DEVELOPMENT ENGINEERING LTD v. 陳松周
Parties
Plaintiff: KAM SHAN MING DEVELOPMENT ENGINEERING LIMITED; 1st Defendant: CHAN CHUNG CHAU; 2nd Defendant: ALL PERSONS IN OCCUPATION OF LOTS 767 AND 768; 3rd Defendant: JU TAVORNPANICH; 4th Defendant: CHAN SHUK FAN
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 June 2016
Case Number
DCCJ877/2013
Procedural Posture
Miscellaneous Proceedings and Counterclaim for Adverse Possession and Recovery of Possession and Mesne Profits / Judgment After Trial
Outcome
Judgment for the Plaintiff in respect of Lots AB; Judgment for the Family (1st,3rd and 4th defendants) on Lots CD — Family granted possessory title to Lots CD
Legal Topics
Adverse Possession, Mesne Profits, Tenancy Agreement, Rescission for Misrepresentation, Encroachment, Possession Evidence, Limitation Period, Possessory Title
Source Language
EN
Property Landlord and Tenant Limitation Law Civil Procedure Adverse Possession Mesne Profits Tenancy Agreement Rescission for Misrepresentation +4 more

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Parties

KAM SHAN MING DEVELOPMENT ENGINEERING LIMITED

Plaintiff

CHAN CHUNG CHAU

1st Defendant

ALL PERSONS IN OCCUPATION OF LOTS 767 AND 768

2nd Defendant

JU TAVORNPANICH

3rd Defendant

CHAN SHUK FAN

4th Defendant

Procedural Posture

Miscellaneous Proceedings and Counterclaim for Adverse Possession and Recovery of Possession and Mesne Profits / Judgment After Trial

Legal Issues

  1. 1 Whether the Family had factual possession of the Four Lots for 20 years before proceedings
  2. 2 Whether the Family had the requisite animus possidendi (intention to possess)
  3. 3 Effect of the Tenancy Agreement on adverse possession and title extinguishment

Ratio Decidendi

The court found the Family established adverse possession of Lots CD from 1977 such that the owner's title was extinguished in 1997 under the Limitation Ordinance; the 2004 Tenancy Agreement and any payments did not revive the owner's title nor negate the Family's earlier animus possidendi; the Family failed to prove factual possession or animus for Lots AB and the plaintiff, as registered owner, is entitled to recover Lots AB and mesne profits from 29 August 2012 at HK$800 per annum.

Court Disposition

Judgment for the Plaintiff in respect of Lots AB; Judgment for the Family (1st,3rd and 4th defendants) on Lots CD — Family granted possessory title to Lots CD

Orders

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