LEE AH TIM v. TSE LUNG YIM AND ANOTHER

LEE AH TIM v. TSE LUNG YIM AND ANOTHER

The court found on the balance of probabilities that the plaintiff and her family continuously cultivated and used the whole Disputed Land (Lot 2244 and the disputed part of Lot 2243RP) from 1961 for at least 20 years, that such use constituted sufficient exclusive physical control in the circumstances, and that animus possidendi could be inferred; accordingly the defendants' registered title was extinguished and the plaintiff is entitled to possessory title and the requested declarations and injunction; the defendants' counterclaim for trespass is dismissed and only nominal damages of HK$1 are awarded for the 2010 fencing intrusion.

Citation
LEE AH TIM v. TSE LUNG YIM AND ANOTHER
Parties
Plaintiff: Lee Ah Tim; 1st Defendant: Tse Lung Yim; 2nd Defendant: Ngai Kam Yuk
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 October 2015
Case Number
DCCJ529/2013
Procedural Posture
Civil Action Adverse Possession / Judgment
Outcome
Plaintiff's claim for adverse possession allowed; defendants' counterclaim dismissed.
Legal Topics
Adverse Possession, Possessory Title, Factual Possession, Animus Possidendi, Trespass, Injunction, Nominal Damages
Source Language
EN
Property Law Land Law Civil Litigation Adverse Possession Possessory Title Factual Possession Animus Possidendi Trespass +2 more

Case Brief

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Parties

Lee Ah Tim

Plaintiff

Tse Lung Yim

1st Defendant

Ngai Kam Yuk

2nd Defendant

Procedural Posture

Civil Action Adverse Possession / Judgment

Legal Issues

  1. 1 Whether the plaintiff acquired possessory title by adverse possession over the Disputed Land
  2. 2 Whether the plaintiff had factual possession and animus possidendi for the requisite 20 years from 1961 to 1981
  3. 3 Whether the defendants' counterclaim for trespass succeeds given alleged extinguishment of title

Ratio Decidendi

The court found on the balance of probabilities that the plaintiff and her family continuously cultivated and used the whole Disputed Land (Lot 2244 and the disputed part of Lot 2243RP) from 1961 for at least 20 years, that such use constituted sufficient exclusive physical control in the circumstances, and that animus possidendi could be inferred; accordingly the defendants' registered title was extinguished and the plaintiff is entitled to possessory title and the requested declarations and injunction; the defendants' counterclaim for trespass is dismissed and only nominal damages of HK$1 are awarded for the 2010 fencing intrusion.

Court Disposition

Plaintiff's claim for adverse possession allowed; defendants' counterclaim dismissed.

Orders

  • Declaration that all title, interests and/or rights of the defendants in relation to the Disputed Land are absolutely extinguished
  • Declaration that the plaintiff is entitled to possessory title and the sole and exclusive right to hold, use, occupy and enjoy the Disputed Land to the exclusion of all others