Land Law — Successful Adverse Possession Claim of Rural Land Despite Lack of Complete Fencing

Li Pui Yin Helen v. Yeung Kwong Yan trading as Yan Yan Organic Farm and Others [2024] HKDC 1573 revolves around a dispute over adverse possession of a piece of land in Yuen Long. The Plaintiff, who is the registered owner of the disputed land, sought to recover possession of it. The 1st Defendant claimed adverse possession of the disputed land asserting that he had been in continuous adverse possession since 1975 and using it for agricultural purposes.  

Abigail Liu, instructed by Hau, Lau, Li & Yeung, represented the 1st Defendant who successfully claimed adverse possession. 

One of the greatest hurdles in the 1st  Defendant’s case was that the disputed land was not fenced off. The Plaintiff argued that the absence of fencing for a substantial period of time indicated that the 1st  Defendant did not exercise exclusive possession. The Plaintiff further alleged that, without fencing or other physical barriers, the disputed land was accessible to the public, and thus, the 1st Defendant could not have excluded others, including the rightful owner, from the disputed land. 

The Court, however, accepted the 1st  Defendant’s submissions that enclosure was not indispensable and that one must consider the nature of the land and its locality in deciding whether exclusive possession is established despite the absence of complete enclosure. After all,  whether factual possession and the requisite intention to possess could be established is a question of fact depending on the circumstances of the case.

The Court was eventually convinced that there was exclusive possession, as the disputed land was situated in a rural village of a small community where many villagers or peasants were neighbors who knew each other well and could identify the fields used and occupied by each other without difficulty. It is hence understandable why there was no necessity for erecting fences. 

Further, the Court accepted the 1st  Defendant’s evidence that he and his uncle had also been occupying the farmlands surrounding the disputed land and that many residents and villagers were the first defendant’s family members or close relatives with common ancestral roots. In the circumstances, had an intruder entered the disputed lot, the 1st Defendant would have discovered the intrusion and expelled the intruder immediately. 

Ultimately, the judge concluded that despite the absence of fencing, the 1st Defendant had exercised a sufficient degree of exclusive physical possession and had the requisite intention to possess the disputed land. The 1st Defendant’s continuous and exclusive agricultural use of the disputed land, along with the effective control exercised by it over the disputed land, satisfied the requirements for adverse possession. 

 

Abigail Liu

Abigail joined Chambers in 2019 after completing her pupillage with Mr. Graham Harris SC, Mr. Tim Kwok, Ms. Catherine Wong, Mr. Simon Wong and Mr. Jeffrey Tam.​

Abigail is developing a broad civil and criminal practice.  She has experience in areas such as family and matrimonial matters, public law, land, tort, personal injuries, employee compensation, commercial litigation, trusts, probate and contract.​

Abigail has been instructed to appear in the Magistracies, the Lands Tribunal, District Court and High Court. She accepts instructions in all areas of work. She is fluent in English, Cantonese and Putonghua. She is capable of providing written submissions and conducting hearings in both English and Chinese.​

Visit Abigail’s profile for more details.

This article was first published on 15 October 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.