ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

The court held that defendant's parents and defendant were in successive adverse possession of the Portion (Squatter House) from at least 1954 with the requisite animus, extinguishing the plaintiff's title in respect of that 41.3 sq m Portion; however the defendant failed to prove continuous exclusive possession of the remainder of Site B and Site C for 20 years because cultivation ceased, public footpaths emerged, there were significant periods of voluntary abandonment and the acts relied on (eg tree planting, limited gardening) were equivocal and insufficient to demonstrate exclusive possession or animus for the required continuous period, so declarations for Sites B and C were refused...

Citation
ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
23 August 2013
Case Number
DCCJ1154/2010
Procedural Posture
Adverse Possession / Trespass / Trial Judgment
Outcome
Plaintiff's claim dismissed; defendant's counterclaim dismissed except declaration granted in favour of defendant for the Portion (41.3 sq m) that he was and is in adverse possession and has possessory title; plaintiff's title to the Portion extinguished.
Legal Topics
Adverse Possession, Animus Possidendi, Possessory Title, Trespass, Abandonment
Source Language
EN
Property Limitation Civil Litigation Adverse Possession Animus Possidendi Possessory Title Trespass Abandonment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Adverse Possession / Trespass / Trial Judgment

Legal Issues

  1. 1 Whether defendant's occupation of the Squatter House or any part thereof amounts to trespass (subject to defence of adverse possession)
  2. 2 Whether defendant has been in adverse possession of Site B for a continuous period of 20 years prior to the writ
  3. 3 Whether defendant has been in adverse possession of Site C for a continuous period of 20 years prior to the writ

Ratio Decidendi

The court held that defendant's parents and defendant were in successive adverse possession of the Portion (Squatter House) from at least 1954 with the requisite animus, extinguishing the plaintiff's title in respect of that 41.3 sq m Portion; however the defendant failed to prove continuous exclusive possession of the remainder of Site B and Site C for 20 years because cultivation ceased, public footpaths emerged, there were significant periods of voluntary abandonment and the acts relied on (eg tree planting, limited gardening) were equivocal and insufficient to demonstrate exclusive possession or animus for the required continuous period, so declarations for Sites B and C were refused...

Court Disposition

Plaintiff's claim dismissed; defendant's counterclaim dismissed except declaration granted in favour of defendant for the Portion (41.3 sq m) that he was and is in adverse possession and has possessory title; plaintiff's title to the Portion extinguished.

Orders

  • Plaintiff's claims against the defendant dismissed
  • Declaration that the defendant was and is in adverse possession of the Portion and has the possessory title thereto