CHAN KIN CHU v. CHAN NANG YEUNG (or SHEUNG) AND ANOTHER

DCMP 3139/2016

[2018] HKDC 1459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3139 OF 2016

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J U D G M E N T

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1.  This is the judgment of the court.

2.  Mrs Chan brought these proceedings by way of originating summons dated 17 October 2016 in respect of a property known as 2^nd Floor, No 48, Wing Kwong Street, Kowloon (“the Property”).

3.  Mrs Chan claims possessory title to the Property by reason of adverse possession.

4.  There are two defendants in these proceedings, namely one Mr Chan and one Mr Chung. Neither of them has filed a notice of intention to defend and has ever participated in these proceedings.  At this substantive hearing of the originating summons, they are absent despite notice thereof given.

5.  Mrs Chan has produced two affirmations in support of her claim in the originating summons.  This morning, she came to the court and testified.  She largely adopts her evidence in her affirmations, with some clarifications made with the assistance of her counsel, Ms Chong.  Her evidence is clearly unchallenged. 

6.  The following is a summary of the key matters in her evidence.

7.  According to the land search record of the Property, one Mr Li Shui-king (or Lee Sui-king) was the registered owner of the Property before 1961. 

8.  By virtue of a probate grant dated 3 February 1961, the defendants became executor of the estate of Mr Li and they also became and remained the registered owners of the Property. 

9.  The husband of Mrs Chan, a Hong Kong resident, started residing in the Property with the agreement of the two registered owners since the 1960s.  At that time, Mrs Chan had not yet come to Hong Kong.  She came to Hong Kong in 1997 with her daughters to reunite with her husband, whom she married in or about 1984. 

10.  At that time, another Mrs Chan, who claimed to be the daughter-in-law of one of the defendants, used to visit the Property every month to collect rent from her family.  According to her husband, the rent was payable pursuant to a verbal agreement made between her husband and the registered owners of the Property. 

11.  Since April 2000, Mrs Chan ceased coming to the Property to demand rent and thereafter no one else has ever demanded rent for the use of the Property by Mrs Chan and her family.

12.  Mrs Chan then changed the locks of the door to the Property in June 2000.  She claimed to treat the Property as if it were her own property.  Documentary evidence shows that she paid the utility bills and all the outgoing expenses relating to the Property, including government rent and rates.

13.  In early 2001, Mrs Chan’s family was allocated a public housing unit in Tseung Kwan O, Sai Kung, and hence they moved to the public housing unit.  However, Mrs Chan retained exclusive possession of the Property and started renting out the partitioned rooms of the Property. She has lived on those rental income since 2001.

14.  Mrs Chan has produced documentary evidence to prove the receipts of such rental payments. 

15.  In the premises, Mrs Chan claims that she has taken possession of the Property since 2000 and occupied and used the Property as if she were the owner of the Property, without the consent of the registered owners of the Property.

16.  This court has no reason to reject her evidence, which is not inherently improbable and is by and large supported by documentary evidence.

17.  On the basis of the facts as found by this court deriving from her affirmations, this court is satisfied that Mrs Chan has had factual possession of the Property since 2000 and all along she has the animus possidendi against the will of the registered owners.  Therefore, her claim based on adverse possession is made out.

18.  Ms Chong in her skeleton submission makes it clear that Mrs Chan will not press for an order to be made in terms of paragraph 3 of the originating summons.

19.  By reason of the foregoing matters, this court is satisfied that Mrs Chan is entitled to a declaration that the title to the property has been, prior to the commencement of these proceedings, extinguished by virtue of sections 7 and 17 of the Limitation Ordinance, Cap 347, and a declaration that Mrs Chan, having been in adverse possession of the Property for a period in excess of 12 years before the commencement of these proceedings, has acquired a good possessory title to the Property.

20.  Ms Chong also indicates that she will ask for no order as to costs.  I so order.

21.  Lastly, I thank Ms Chong for her helpful assistance in this matter.