CHAN SAN v. HANS LI, THE PERSON APPOINTED TO REPRESENT THE ESTATE OF KAM SHUI MAN, THE DECEASED

CHAN SAN v. HANS LI, THE PERSON APPOINTED TO REPRESENT THE ESTATE OF KAM SHUI MAN, THE DECEASED

The court found on the balance of probabilities that the plaintiff had established factual possession and the requisite animus possidendi in respect of Area A (from at least 1997) and Area B (by construction and exclusive use of the private road) within the relevant limitation period; accordingly the 1st defendant’s rights to recover the land were barred and its title extinguished under the Limitation Ordinance, and the plaintiff was entitled to a declaration of possessory title to the parts of Area A and Area B lying within Lot 1215 and Lot 1212RP.

Citation
[2019] HKCFI 714
Parties
Plaintiff: Plaintiff; 1st Defendant: Estate of Kam Shui Man (the Deceased); 2nd Defendant (discontinued): Cheung Tung‑Fat (the Deceased); 3rd Defendant (discontinued): Cheung Siu‑Ping, Jodie; 4th Defendant (discontinued): Cheung Wai Chun (Personal Representative of Cheung Tung‑Tak); 5th Defendant (discontinued): Cheung Kai‑Sang (alias Cheung Ki‑Shang); 6th Defendant (discontinued): Cheung Wai Chung (Personal Representative of Cheung Tung‑Tak)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 March 2019
Case Number
HCA840/2012
Procedural Posture
Possessory Title / Adverse Possession (limitation Ordinance Cap 347) / Judgment (trial)
Outcome
Judgment for plaintiff: plaintiff’s claim for possessory title to Area A and Area B (insofar as each lies within Lot 1215 and Lot 1212RP) granted; 1st defendant’s counterclaim dismissed.
Legal Topics
Adverse Possession, Factual Possession, Animus Possidendi, Mesne Profits, Extinguishment of Title
Source Language
EN
Property Law Limitation Law Real Property Adverse Possession Factual Possession Animus Possidendi Mesne Profits Extinguishment of Title

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Parties

Plaintiff

Plaintiff

Estate of Kam Shui Man (the Deceased)

1st Defendant

Cheung Tung‑Fat (the Deceased)

2nd Defendant (discontinued)

Cheung Siu‑Ping, Jodie

3rd Defendant (discontinued)

Cheung Wai Chun (Personal Representative of Cheung Tung‑Tak)

4th Defendant (discontinued)

Cheung Kai‑Sang (alias Cheung Ki‑Shang)

5th Defendant (discontinued)

Cheung Wai Chung (Personal Representative of Cheung Tung‑Tak)

6th Defendant (discontinued)

Procedural Posture

Possessory Title / Adverse Possession (limitation Ordinance Cap 347) / Judgment (trial)

Legal Issues

  1. 1 Whether the plaintiff and/or predecessors had factual possession and animus possidendi over Area A and Area B sufficient to constitute adverse possession
  2. 2 When the limitation period was interrupted or stopped running
  3. 3 Whether the plaintiff’s acts (structures, road, utilities) amounted to dealing with the land as an occupying owner would, given the nature of the land

Ratio Decidendi

The court found on the balance of probabilities that the plaintiff had established factual possession and the requisite animus possidendi in respect of Area A (from at least 1997) and Area B (by construction and exclusive use of the private road) within the relevant limitation period; accordingly the 1st defendant’s rights to recover the land were barred and its title extinguished under the Limitation Ordinance, and the plaintiff was entitled to a declaration of possessory title to the parts of Area A and Area B lying within Lot 1215 and Lot 1212RP.

Court Disposition

Judgment for plaintiff: plaintiff’s claim for possessory title to Area A and Area B (insofar as each lies within Lot 1215 and Lot 1212RP) granted; 1st defendant’s counterclaim dismissed.

Orders

  • Declaration that the 1st defendant has lost the right to bring any action to recover the land or any part thereof by virtue of section 7(2) of the Limitation Ordinance, Cap 347
  • Declaration that by virtue of section 17 of the Limitation Ordinance the 1st defendant's title, rights, benefits and interests in the land (or any part thereof) have been extinguished in favour of the plaintiff