YAN CHUI LIN v. KWAN MEE YUK alias KWAN MI YUK

DCCJ 1360/2016
[2018] HKDC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1360 OF 2016

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J U D G M E N T

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1.  The plaintiff (“Madam Yan”) seeks various declarations to the effect that she had been in adverse possession of the property known as 2^nd Floor, No 551 Fuk Wing Street, Kowloon, Hong Kong (“Property”) which was registered in the sole name of the defendant since 24 February 1971 (B/130-134). 

2.  The defendant is absent throughout the proceedings.  Pursuant to the court order dated 25 April 2017 and 1 November 2017 respectively, substituted service of these proceedings and the Notice of Trial by way of advertising a Chinese notice once in a local newspaper was completed on 9 May 2017 and 27 November 2017 respectively.  This court is satisfied that the defendant had been properly served and should have notice of these proceedings and this hearing.  The trial is to proceed in the absence of the defendant.

Plaintiff’s Case

3.  Madam Yan has given evidence in support of her claim.  I accept her evidence which is supported by documentary evidence. 

4.  I found the facts set out below have been proved by Madam Yan:

(a) in about April 1985, Madam Yan migrated to Hong Kong and started living together with her grandparents at the Property under a tenancy to Mr Yan Chi, the grandfather of Madam Yan (“Grandfather”), at the monthly rent of $1,000 to be paid to Messrs. Philip K.H. Wong, Kennedy Y.H. Wong & Co., a firm of solicitors (“the Solicitors”) (B/108);

(b) the plaintiff and her grandparents lived in one of the rooms of the Property and the remaining rooms were sublet by the grandparents to their sub-tenants;

(c) the Grandfather passed away in about 1992 or 1993 and thereafter the grandmother of Madam Yan (“Grandmother”) continued paying rent to the Solicitors;

(d) in about the end of 1995 or beginning of 1996, the Grandmother moved to live in an elderly home and eventually passed away in 2005;

(e) ever since the Grandmother moved out of the Property, Madam Yan took possession of the Property, had not paid any rent for the Property since 1996 and continued letting some of the rooms of the Property to others and collected rents from them till now (rental receipts issued by Madam Yan over the years at B/135-342);

(f) Madam Yan and her family resided at the Property until 2001 but even after her moving out, she kept receiving the rent generated from the Property;

(g) since 1996, Madam Yan paid off all costs and expenses for the Property, including the renovation costs of the building as well as the government rates of the Property; and

(h) since 1996, Madam Yan had, at her own expenses, carried out renovation and decoration of the Property for 3 to 4 times (receipts at B/97-100) and thereafter caused all the door locks changed and only Madam Yan, her husband and her tenants were given the keys to the Property.

5.  Mr Koo for the plaintiff submitted that Madam Yan had been in continuous exclusive possession and control of the Property as if she was the sole owner thereof without anyone’s or the defendant’s consent since 1996 and she should have acquired the possessory title thereof by 2008, before the commencement of these proceedings.  Hence, Madam Yan should be entitled to the following declarations:

(a) that by virtue of section 17 of the Limitation Ordinance,  Cap 347 (“the Ordinance”), the defendant’s title to the Property has been extinguished;

(b) that the defendant, the registered owner of the Property shall have no right to bring any action to recover possession of the Property or any part thereof, by virtue of section 7(2) of the Ordinance; and

(c) the plaintiff has acquired a possessory title to the Property.

Legal Principles

6.  The followings are the relevant provisions in the Ordinance:

Section 7(2)

“No action shall be brought by any person to recover any land after the expiration of 12 [20 years for cause of action accrued before 1 July 1991] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…”

Section 8(1)

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

Section 13(1)

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) …”

Section 17

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

7.  So, in order to succeed a claim for adverse possession, the plaintiff, who is not the registered owner of the Property, should establish that:

(a) she has been in continuous and exclusive physical possession of the Property, ie having a sufficient degree of exclusive physical control over the Property, for 12 years counting back from the date of application; and

(b) she has the requisite intention to possess the Property, i.e. the animus possidendi, to the exclusion of the owner and the world at large.

8.  These principles have been enunciated by Slade J (as he then was) in Powell v McFarlane (1977) 38 P & CR 452, which have been confirmed by the Hong Kong Court of Final Appeal in a number of cases including, for instance, The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited (2007) 10 HKCFAR 588.

9.  Moreover, possession without the consent of the owner is adverse possession (JA Pye (Oxford) Ltd & Another v Graham & Another [2003] 1 AC 419 at §36).  And using the land in a way one would expect him to use it as if he were the true owner suffices to show the requisite intention to possess (Tsang Foo Keung & Another v Chu Jim Mi Jimmy & Another, CACV 178/2015, 28 October 2016).

Discussion

10.  This court is satisfied that Madam Yan had been in continuous occupation of the Property for more than 12 years as from 1996. Ever since the Grandmother had moved out of the Property in 1996, Madam Yan had the exclusive possession and control of the Property.  Since then, Madam Yan had exercised exclusive control of the Property as well.  Without the consent of the defendant, Madam Yan had been using the Property as her family’s residence from 1996 to 2001, letting out some of the rooms of the Property to her tenants ever since 1996 till now, carried out renovation and decoration of the Property and changed the door locks time and again.  Only Madam Yan and her husband as well as her tenants had keys to the Property and no one was allowed to enter the Property without the consent of Madam Yan.  Exclusive possession by Madam Yan since 1996 had been established.

11.  The use of the Property as the family residence, the renting out of some of the rooms to tenants, carried out renovation and decoration, changed the door locks and the refusal to pay rent, all points to the intention of Madam Yan to occupy and use the Property as her own even though Madam Yan and her family had moved out of the Property since 2001.  All these conduct of Madam Yan indicated a use as if she was the true owner and an intention to exclude the owner and the world at large. 

12.  Based on the findings above, I find the 2 elements necessary for an adverse possession claim over the Property have been established and Madam Yan should be entitled to the declarations sought.

13.  Madam Yan has produced evidence to show that the annual ratable value of the Property on the date of the writ was less than $240,000 (Exhibit P1).  I am of the view that Madam Yan’s claim is within the ambit of section 35 of the District Court Ordinance. 

Order

14.  In the circumstances, I make the following order:

(a) a declaration that the title, interest and/or rights in or over the Property of the defendant or her successors-in-title has, prior to the commencement of these proceedings, been absolutely extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347 (“LO”);

(b) a declaration that no action shall be brought by the defendant or her successors-in-title to recover the Property by virtue of section 7(2) of the LO;

(c) a declaration that the plaintiff, having been in adverse possession of the Property for a period exceeding 12 years before the commencement of these proceedings, has thereby acquired and is entitled to a possessory title, interest or rights to the Property vis-à-vis the defendant; and

(d) there be no order as to costs.