Land Law — Court Rejects Adverse Possession Claim Despite Long Period of Occupation by Squatter
In Fulland International Ltd v Liu Kin Lam [2024] HKCFI 1209, despite finding that the defendant squatter had occupied the disputed land since 1980 for over 20 years, by drawing a clear distinction between occupation and possession, the Court dismissed the defendant’s counterclaim of adverse possession and allowed the plaintiff’s claim for vacant possession and mesne profit.
Ross Yuen instructed by Messrs Hastings & Co represented the successful plaintiff.
Firstly, it was the defendant’s case that he took over the land and began cultivation thereon with the consent of his parents (who were not the registered owners of the land). Applying Tsang Foo Keung & Anor v Chu Jim Mi Jimmy & Ors [2017] 3 HKC 527, the Court held that the defendant must have taken possession of the land only by virtue of a licence granted by his parents. Coupled with the fact that there was no evidence showing that the defendant had at any time changed the nature or capacity of his occupation, it was found that the defendant had failed to prove that he had possessed the land in his own name and on his own behalf without permission or consent from anyone.
Secondly, it was not disputed that most of the time the land was used for tree planting but there was no fence to exclude others from entering it. Although the Court accepted that there might be natural barriers indicating the boundaries of the land and that the villagers would respect those boundaries, it was held not sufficient for the purposes of showing animus possidendi. After considering the Court of Appeal’s decisions in Yip Yan Cheung Gary v Chow Tin Choi [2018] HKCA 70 and Gotland Enterprises Ltd v Kwok Chi Yau & Ors, CACV 260/2014, unrep., 19 January 2016, the Court held that the proper test was to see whether the registered owner had been or could have been excluded. The voluntary acts of neighbours to respect the boundaries of the land did not mean that everyone else was prevented from entering into the land.
Lastly, the Court also found on the evidence that the defendant had abandoned the land at least since 2015. However, following two Australian authorities (Bayport Industries Pty Ltd. v Watson [2002] VSC 206; Kirk v Sutherland [1949] VLR 33), the Court found that if (contrary to its finding) the defendant had begun occupation of the disputed land in his own right from 1980, he would have dispossessed the paper owner by December 2015, and as the period of abandonment only began after the defendant had obtained title to the disputed land, it cannot be abandoned thereafter.
| Ross Yuen
|
Called to the Bar in 2008, Ross has practice focused on land and commercial law. He has ample trial experience in adverse possession, compulsory sale and land resumption. He regularly advises on other land related matters such as conveyancing, building management and tenancy. He acted for the land owners who succeeded in recovering their lands either wholly or partly in:
• Fulland International Ltd v Liu Kin Lam [2024] HKCFI 1209
• Monat Investment Ltd v. All Person(s) in Occupation of Part of the Remaining Portion of Lot No 591 in Mui Wo D.D. 4 No.16 Ma Po Tsuen, Mui Wo, Lantau Island and Another[2023] 2 HKLRD 1311; [2020] 4 HKLRD 330
• Tsang Kiu v Fulland International Ltd[2019] HKDC 676
• Chan Mei Lin & Ors v Lee Hong[2018] HKCFI 2441
• Yu King Chau v Personal Representatives of the estate of Fong Fu Foon, HCA 1438/2011, 21 November 2017
• Incorporated Owners of Fuk Wing Building v Ma Hing Ching, DCCJ 2356/2015, 17 July 2017
• Woo Hoi Lun v Lai Yung, DCCJ 2312/2012, 20 October 2014
• Cheng Wing Hei v Chan Yat Kwan, DCCJ 168/2010, 18 November 2013
• 譚海强對林樹福遺產管理人, HCA2462/2009, 15 May 2013
This article was first published on 5 June 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.