雲秀玲 v. 所有佔用香港沙田渡頭灣村51及52號(丈量約份第206約地段第811號餘段)之人仕及另二人

雲秀玲 v. 所有佔用香港沙田渡頭灣村51及52號(丈量約份第206約地段第811號餘段)之人仕及另二人

The defendants failed to prove on the balance of probabilities that they had exclusive factual possession and the requisite intention to possess 811RP for the requisite twenty years during the pleaded periods. Key evidence was unreliable or uncorroborated (the 3rd defendant’s testimony conflicted with pleadings, aerial photographs, expert survey and documentary records such as rates payment). Consequently the plaintiff’s title was not extinguished by adverse possession and the plaintiff is entitled to possession and demolition orders; the defendants’ counterclaim is dismissed.

Citation
雲秀玲 v. 所有佔用香港沙田渡頭灣村51及52號(丈量約份第206約地段第811號餘段)之人仕及另二人
Parties
Plaintiff: Plaintiff; Defendant: 2nd defendant (Mr Tsang); Defendant: 3rd defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
25 March 2013
Case Number
DCCJ3844/2010
Procedural Posture
Land Possession (adverse Possession) / Judgment After Trial
Outcome
Judgment for plaintiff; defendants' counterclaim dismissed
Legal Topics
Possession, Animus Possidendi, Limitation Period, Evidence Credibility, Costs
Source Language
EN
Property Adverse Possession Limitation Law Civil Procedure Possession Animus Possidendi Limitation Period Evidence Credibility +1 more

Case Brief

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Parties

Plaintiff

Plaintiff

2nd defendant (Mr Tsang)

Defendant

3rd defendant

Defendant

Procedural Posture

Land Possession (adverse Possession) / Judgment After Trial

Legal Issues

  1. 1 Whether the 2nd and 3rd defendants established 20 years adverse possession of 811RP during 1962–1982 and 1986–2006
  2. 2 Whether the plaintiff's cause of action was time-barred under the Limitation Ordinance (Cap 347)
  3. 3 Whether the defendants proved factual possession and intention to possess (animus possidendi)

Ratio Decidendi

The defendants failed to prove on the balance of probabilities that they had exclusive factual possession and the requisite intention to possess 811RP for the requisite twenty years during the pleaded periods. Key evidence was unreliable or uncorroborated (the 3rd defendant’s testimony conflicted with pleadings, aerial photographs, expert survey and documentary records such as rates payment). Consequently the plaintiff’s title was not extinguished by adverse possession and the plaintiff is entitled to possession and demolition orders; the defendants’ counterclaim is dismissed.

Court Disposition

Judgment for plaintiff; defendants' counterclaim dismissed

Orders

  • 2nd and 3rd defendants to give the plaintiff vacant possession of 811RP
  • 2nd and 3rd defendants to forthwith pull down, demolish or remove structures erected on any part of 811RP