LEE SIU FONG v. WONG WAN LEUNG AND OTHERS

LEE SIU FONG v. WONG WAN LEUNG AND OTHERS

The Plaintiff's claim was dismissed: he failed to prove adverse possession because (1) occupation was under a licence/Modification of Tenancy and conduct (payment of fees, seeking consent, squatter registration) negated the requisite animus possidendi; (2) as against the Tong the limitation period has not run against all beneficiaries of the tong so title could not be extinguished; and (3) Lot 307 remained Government land subject to a 60‑year limitation so adverse possession against the Government had not matured; the Government's counterclaim for possession of occupied parts of Lot 307 succeeded (3rd Defendant granted possession).

Citation
LEE SIU FONG v. WONG WAN LEUNG AND OTHERS
Parties
Plaintiff: Plaintiff; 1st Defendant (registered Owner of Lot 322): Tong; 2nd Defendant (purported Owner of Lot 307): Secretary for Home Affairs Incorporated (SHAI); 3rd Defendant (the Government): Government
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 January 2017
Case Number
HCA122/2012
Procedural Posture
Adverse Possession Claim (land) / Judgment After Trial (dates of Trial 6 8,12,18 January 2016; Judgment 3 January 2017)
Outcome
Plaintiff's claim dismissed in full; 3rd Defendant (Government) granted possession of occupied parts of Lot 307; 2nd Defendant's counterclaim dismissed; costs to Defendants (costs order nisi)
Legal Topics
Adverse Possession, Animus Possidendi, Factual Possession, Modification of Tenancy (mot), Squatter Control Policy, Limitation Periods Against Trusts/tongs, Ownership Tracing of New Territories Land, Change of Sovereignty (1997)
Source Language
EN
Property Law Land Law Limitation Law Public/administrative Law Adverse Possession Animus Possidendi Factual Possession Modification of Tenancy (mot) +4 more

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Parties

Plaintiff

Plaintiff

Tong

1st Defendant (registered Owner of Lot 322)

Secretary for Home Affairs Incorporated (SHAI)

2nd Defendant (purported Owner of Lot 307)

Government

3rd Defendant (the Government)

Procedural Posture

Adverse Possession Claim (land) / Judgment After Trial (dates of Trial 6 8,12,18 January 2016; Judgment 3 January 2017)

Legal Issues

  1. 1 Whether the Plaintiff (and his predecessor) acquired title by adverse possession to parts of Lot 322 and Lot 307
  2. 2 Whether occupation under a Modification of Tenancy (MOT) or squatter registration negates animus possidendi
  3. 3 Whether limitation has run against the Tong given successive beneficiaries and s 10/s 22 of the Limitation Ordinance

Ratio Decidendi

The Plaintiff's claim was dismissed: he failed to prove adverse possession because (1) occupation was under a licence/Modification of Tenancy and conduct (payment of fees, seeking consent, squatter registration) negated the requisite animus possidendi; (2) as against the Tong the limitation period has not run against all beneficiaries of the tong so title could not be extinguished; and (3) Lot 307 remained Government land subject to a 60‑year limitation so adverse possession against the Government had not matured; the Government's counterclaim for possession of occupied parts of Lot 307 succeeded (3rd Defendant granted possession).

Court Disposition

Plaintiff's claim dismissed in full; 3rd Defendant (Government) granted possession of occupied parts of Lot 307; 2nd Defendant's counterclaim dismissed; costs to Defendants (costs order nisi)

Orders

  • Claim dismissed against all Defendants
  • Judgment for the 3rd Defendant on counterclaim for possession of the occupied parts of Lot 307