TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories Hong Kong AND ANOTHER

TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories Hong Kong AND ANOTHER

The 2nd defendant failed to discharge the heavy burden to prove adverse possession: contemporaneous evidence (notably an electricity bill showing zero consumption for about 17 months), lack of corroborating witnesses and documents, and unreliable testimony meant factual possession and animus possidendi were not...

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Citation
TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories Hong Kong AND ANOTHER
Parties
Plaintiff: To Hin Cheung; Plaintiff: To Chi Cheung; Plaintiff: To Shiu Cheung; 1st Defendant: All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories, Hong Kong; 2nd Defendant: Chan Wai Keung
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 April 2013
Case Number
DCMP1288/2011
Procedural Posture
Miscellaneous Proceedings (district Court) Adverse Possession/possession Claim / Judgment (16 April 2013)
Outcome
Judgment for plaintiffs; 2nd defendant's counterclaim dismissed; order for delivery of vacant possession to plaintiffs; plaintiffs awarded costs.
Legal Topics
Adverse Possession, Factual Possession, Animus Possidendi, Title Extinguishment, Vacant Possession, Costs
Source Language
en
Property Adverse Possession Real Property Civil Procedure Factual Possession Animus Possidendi Title Extinguishment Vacant Possession +1 more

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Parties

To Hin Cheung

Plaintiff

To Chi Cheung

Plaintiff

To Shiu Cheung

Plaintiff

All occupier(s) of a portion of Lot No 240 in Demarcation District No 128, Yuen Long, New Territories, Hong Kong

1st Defendant

Chan Wai Keung

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (district Court) Adverse Possession/possession Claim / Judgment (16 April 2013)

Legal Issues

  1. 1 Whether the 2nd defendant established factual possession of the Subject Portion for the requisite period.
  2. 2 Whether the 2nd defendant demonstrated the requisite intention to possess (animus possidendi) to exclude the owner.
  3. 3 Whether the plaintiffs' title to the Subject Portion was extinguished and whether the 2nd defendant acquired possessory title.

Ratio Decidendi

The 2nd defendant failed to discharge the heavy burden to prove adverse possession: contemporaneous evidence (notably an electricity bill showing zero consumption for about 17 months), lack of corroborating witnesses and documents, and unreliable testimony meant factual possession and animus possidendi were not established; accordingly the plaintiffs' claim for possession succeeded and the 2nd defendant's counterclaim was dismissed.

Court Disposition

Judgment for plaintiffs; 2nd defendant's counterclaim dismissed; order for delivery of vacant possession to plaintiffs; plaintiffs awarded costs.

Orders

  • That the 2nd defendant do deliver to the plaintiffs vacant possession of the Subject Portion.
  • That the 2nd defendant's counterclaim be dismissed.