FUNG CHI PUI NELSON v. LI WAN

DCCJ 2045/2019

[2021] HKDC 713

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.2045 OF 2019

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BETWEEN

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Reasons for Judgment

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1.  This is an adverse possession action and at the conclusion of the trial, I found for the plaintiff and gave the following orders:

a. It is declared that the Defendant’s title to a portion of the land known as Chuk Un Lot No. 14 in Demarcation District No. 104, Yuen Long, New Territories which is coloured yellow in the Lot Index Plan annexed as Annex 1 to the Plaintiff’s Amended Statement of Claim dated 27 May 2020 (“the Land”) has been extinguished;

b. It is declared that the Plaintiff has acquired a good and indefeasible possessory title to the Land by way of adverse possession; and

c. There be no order as to costs.

2.  The following are the reasons for judgment.

Background

3.  A 3-storey New Territories exempted house (the “Building”) has been erected since 1989 on part of Chuk Un Lot No. 14 in Demarcation District No. 104, Yuen Long, New Territories (“Lot 14”). Chuk Un Lot No. 15 (“Lot 15”) adjacent to Lot 14 was actually empty.

4.  The plaintiff purchased Lot 15 at a consideration of HK$1,080,000.00 around 3 July 2006 from the registered owner at the time. The title deed of Lot 15 mistakenly referred to a building erected there and named as “House 15” or “House Lot No. 15”.

5.  Under the mistaken belief that the Building was erected on Lot 15, the plaintiff has occupied and using the Building since.

6.  On or around November 2007, the plaintiff intended to transfer Lot 15 to a company owned by him by way of a sale and purchase agreement, so as to enable the company to obtain banking facilities.

7.  During the preparation of the intended transfer, the plaintiff’s solicitors suspected that the Building was actually erected on Lot 14 and not Lot 15. The solicitors wrote to the District Land Office which replied on 14 November 2007 confirming that no building licence has been issued for Lot 15.

8.  The plaintiff therefore realised that the Building which he has been occupying since 2006 was actually located on Lot 14 and not Lot 15, and so he abandoned the transfer.

9.  Nevertheless, the plaintiff has continued to occupy the Building and the Land (and rented out the Building since 2014) without seeking or obtaining any licence or permit from the defendant or any other person.

10.  The defendant is the registered owner of Lot 14 but has never been involved in the proceedings despite court documents being served via insertion through the letter-box for the address for the defendant, that is, at Lot 14. The same have also been posted up in a conspicuous place at the main entrance of Lot 14.

11.  As such, this court has ordered on 25 February 2021 that service of the Notice of Hearing of the Trial on the defendant be effected by inserting an advertisement of a Notice of proceedings once in a local Chinese newspaper published and circulating in Hong Kong, and posting up a Notice of hearing of the Trial at a conspicuous place at Lot 14.

12.  The court is satisfied that these have been done but the defendant has failed to attend the trial.

Factual possession

13.  The court is satisfied that the plaintiff has factual possession of the Land for 12 years given that the evidence showed that he has occupied the Building as his residential home from 2006 to 2014 after which date he rented the Building out to various tenants until now. It is trite that a squatter can acquire possessory title through his tenant’s occupation of the land: Cheung Yat Fuk v Tang Tak Hong and Others [2004] 2 HKLRD 86.

Animus possidendi

14.  Although the plaintiff initially occupied the Land by mistake, by 14 November 2007 (the date of the letter from the District Land Office), it was clear to him that he did not have the title to the Land. His continuous occupation since shows a clear intention to exclude the world at large including the owner with the paper title. The court is therefore satisfied that the plaintiff has shown that he has the requisite intention to possession, or animus possidendi.

15.  Accordingly, the court holds that the right for the defendant to recover possession the Land is barred by section 7 of the Limitation Ordinance, Cap. 347 and the defendant’s right and title to the Land were extinguished pursuant to section 17 of the same ordinance, and gave the orders as stated at paragraph 1 above.