CHOW CHI YUEN v. THE INCORPORATED OWNERS OF WING SHUN BUILDING

HCA 563/2014

[2020] HKCFI 3085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 563 OF 2014

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JUDGMENT

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A. INTRODUCTION

1.  The trial of this action took place on 14 to 18 and 25 September 2020. The plaintiff was represented by Ms Debora Poon. The defendant was represented by Ms Lorinda Lau. 

2.  The action relates to the main roof (the “Roof”) of a building known as Wing Shun Building (the “Building”), which is located in Tai Kok Tsui.

3.  The plaintiff (“P”) claims that he has acquired possessory title to the Roof by way of adverse possession by himself and/or family members, including his maternal grandfather Mr Lam Tak Yin (林德彥) (the “Grandfather”).

4.  The defendant (the “IO”) is the incorporated owners of the Building, which resists P’s claim to possessory title deriving from adverse possession.

5.  P seeks declaratory relief that: (i) by virtue of sections 7 and 17 of the Limitation Ordinance (Cap. 347) (the “LO”), the IO’s title to the Roof has been extinguished in favour of P; and (ii) P has acquired a possessory title to the Roof. 

6.  The sole issue is whether P’s claim to have acquired possessory title to the Roof through adverse possession, has been established.

B. SUMMARY OF THE PARTIES’ CASES

7.  In summary, P’s claim rests on the following assertions:

(1)  Following 1963, the Grandfather came to occupy the Roof, and constructed a shelter there.

(2)  Over time, the shelter was expanded by the Grandfather into a house. The Grandfather, and subsequently various members of his family lived in the house, and occupied and controlled access to the Roof. I will refer to the members of the Grandfather’s family who are alleged to have lived on the Roof from time to time, as the “Family”. The Family includes the Grandfather’s wife (the “Grandmother”), P’s parents, and following their birth, P and his siblings.

(3)  When the Grandfather passed away in 2001, P and other members of the Family continued to live on and occupy the Roof. 

(4)  By 2008, P’s parents and siblings no longer lived on the Roof, but P continued to do so (together with P’s wife, from 2010). 

(5)  Following the issuance of a closure order under the Buildings Ordinance (Cap. 123), P ceased to live on the Roof in July 2011, but nonetheless continued to have control over it by retaining key(s) to the door to the Roof.

(6)  Accordingly, P and/or members of the Family (in particular the Grandfather) have been in adverse possession of the Roof, for a sufficient continuous period that the IO’s title to the Roof has been extinguished under sections 7 and 17 of the LO and P has acquired a possessory title to the Roof.

8.  The IO’s position and defence can be summarised as follows:

(1)  Whilst there are certain disagreements on timing, the IO accepts that the Grandfather built a structure on the Roof and lived there, as did various of his family members over time (including P). 

(2)  From around 1963 and subsequently, the Grandfather was employed as a part-time management officer (or caretaker/handyman) of the Building, initially by an owners’ union (the “Union”) which had been formed by the Building’s owners, and subsequently by the IO upon its incorporation on 2 March 1982.

(3)  The Grandfather and his family lived at the Roof pursuant to a license, or series of licenses, granted first by the Union and then by the IO. The license(s) were granted orally. The key terms were in essence that the Grandfather and his family could live at the Roof on a temporary basis, so long as the Grandfather continued to carry out his duties in relation to the Building. 

(4)  Any possession or occupation of the Roof by the Grandfather and the Family, was not of the requisite character nor with the requisite intention to amount to adverse possession including because: (i) it was pursuant to license; and (ii) the Union, IO, and owners of the Building had access to the Roof for various purposes, throughout the entire period.

(5)  Following the Grandfather’s death in August 2001, the IO eventually required P and the Family to vacate the Roof. The IO’s permission for them remain at the Roof was formally terminated by letter in March 2004.

(6)  There was no period during which the Grandfather, P or the Family were in adverse possession of the Roof for the purposes of the LO. Alternatively, any such period was of insufficient length for the IO’s title to be extinguished.

C. THE LAW ON ADVERSE POSSESSION

9.  There was no significant dispute on the principles applicable to the doctrine of adverse possession.

10.  In Poon Chi Hang v Lai Ho Sun [2019] CA 734 at §7, Barma JA approved Lok J’s summary of those principles in Lee Siu Fong v Wong Wan Leung (unreported, HCA 122/2012, 3 January 2017). The summary in Lee Siu Fong at §19, is as follows: 

(1)  To succeed in a claim for adverse possession, the adverse possessor must prove: (i) a sufficient degree of factual possession; and (ii) animus possidendi (ie an intention to possess);

(2)  The elements required for factual possession are: (i) an appropriate degree of physical control; (ii) possession must be single and conclusive, though there can be single possession exercised by or on behalf of several persons jointly; (iii) factual possession must be exclusive, continuous, open, visible and notorious, and it must not be equivocal, occasional, or for a special or temporary purpose; and (iv) the question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances having regard to the nature of the land and the manner of possession;

(3)  Unless there is contrary evidence the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise;

(4)  Intention to possess is the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable and so far as the processes of law will allow[1];

(5)  In ascertaining the adverse possessor’s intention to possess, little regard should be given to self-serving statements of subjective intention. Rather, the court would make inference from the actions of the adverse possessor in the light of all the circumstances; and

(6)  The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling although the standard of proof is still the normal civil standard based on the balance of probabilities.

11.  I also have regard to the recent detailed summaries of the law on adverse possession in eg: Sarah Sally Chan-Kent (Executrix of the Estate of Ruby Jim Sunyou) v Chim Sau Ching and another [2019] HKCFI 3066 per DHCJ Paul Lam SC at §§17-36; Lau Kwai Ping Joyce, the Executrix of The Estate of Tsang Fung Ying (Deceased) v Fulland International Ltd [2020] HKCFI 1501 per Marlene Ng J at §§13 to 33.

Limitation period

12.  If the paper owner’s cause of action against the squatter accrues before 1 July 1991, the applicable limitation period is 20 years. If it accrues after that date, the applicable limitation period is 12 years: Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 per Godfrey Lam J (giving the reasons of the Court of Appeal) at §§26 to 50.

13.  Upon the expiry of the limitation period, the title of the paper owner is extinguished and even a subsequent acknowledgment cannot revive it: Sarah Sally Chan-Kent at §35.

14.  Adverse possession can be jointly held by more than one person: Sarah Sally Chan-Kent at §§31 to 32. A second squatter can rely on the period of possession of the previous squatter in addition to his own period of possession in order to complete the period for adverse possession: Sarah Sally Chan-Kent at §33; Lau Kwai Ping at§17.

License

15.  Possession under a license is not adverse because, unless and until the license is terminated, no right of action to recover the land has ever accrued to the paper owner: Lee Siu Fong at §20; Sarah Sally Chan-Kent at §25; Lau Kwai Ping at §16.

16.  Permission may be given unilaterally and does not require acceptance by the licensee. Permission may be given orally or in writing (express license) or by conduct (implied license): Sarah Sally Chan-Kent at §§26 to 27.

17.  Passive acquiescence is not sufficient to establish an implied license. Rather, there must be some overt act(s) on the part of the licensor referable to the license having been granted to give rise to an implication by conduct: Sarah Sally Chan-Kent at §§28 to 29; Poon Chi Hang at §§24 and 31.

18.  A revocable license is automatically terminated by the death of the licensor, and it is not necessary for the licensee to have received notice of the death: Sarah Sally Chan-Kent at §30. 

D. WITNESSES

19.  P called two witnesses, namely: (i) P himself; and (ii) P’s mother, Madam Lam Fung Yee (林鳳儀) (the “Mother”).

20.  P and the Mother each gave evidence of the history of the Grandfather and the Family living at the Roof. Since P was born in 1979 he was, necessarily, unable to give first hand evidence as to the earlier relevant periods of time.

21.  The IO called three witnesses, namely: (i) Mr Tam Ping Lam (譚炳林) (“Tam”) (ii) Madam Ip Yik Yam (葉奕欽) (“Ip”); and (iii) Mr Chan Chung Keung (陳振強) (“Chan”).

22.  The IO’s witnesses were each a Chairperson of the management committee (the “MC”) of the IO at various different points in time, and/or occupied other posts in the MC. They each gave evidence as to the relevant historical affairs of the Building, including the dealings of the Union and the IO with the Grandfather, the Family, P and their occupation of the Roof. 

23.  As further noted below, certain of the evidence of the IO’s witnesses - in particular in relation to earlier relevant periods - was based on what they had been told by other owners who were involved in management of the Building, and who are no longer alive.

E. EVIDENCE/FACTS

24.  Below,I set out the main areas of evidence which were canvassed, in approximately chronological order.

25.  My findings on the most central items of factual controversy are dealt with in the following Section F.

The Building

26.  The Building was constructed around 1961. It is a mixed use development (residential and commercial).

27.  There is a deed of mutual covenant in respect of the Building, dated 9 January 1978 (the “DMC”).

The Owners’ Union

28.  It does not seem to be seriously disputed that prior to the IO’s incorporation in 1982, the owners of the Building formed an owners’ union, which assumed a role in the management of the Building. There was before me very little documentation regarding that body.

29.  The IO pleaded that the purposes of the owners’ union included convening owners’ meetings to discuss and resolve issues regarding the management of the Building, and that it assumed the role of managing the whole of the Building.

30.  P’s pleadings referred to the “predecessor-in-title” of the IO. In her witness statement, the Mother referred to the Grandfather working for the Wing Shun Building Owners and Residents Association, the predecessor of the IO. The trial bundles included a tenancy agreement signed in 1963 which bears the stamp of “Wing Shun Building Owners and Residents Association”, and indicates that that body had a Chairman.

31.  I proceed on the basis that the parties are referring to the same body, which I will refer to as the Union.

From 1963: early occupation of the Roof by the Grandfather and the Family, and construction of structure(s) on the Roof

32.  Whilst it is common ground that the Grandfather and his family came to live on the Roof, there is some degree of disagreement on the precise time-line. 

33.  The most direct and detailed evidence on the time-line of the early occupation of the Roof, came from the Mother. Her evidence included that:

(1)  In 1963, when she was three years old, the Mother moved with the Grandfather and the Grandmother to live at a staircase (the “Staircase”) which linked the 8^th floor of the Building to the Roof.

(2)  At that time, the Grandfather rented shop premises in the Building for his water and electricity maintenance company, named Wing Key Electricity Firm (榮基電業工程公司) (“Wing Key”). The Grandfather, the Grandmother and the Mother slept on wooden boards at a landing in the Staircase.

(3)  The Roof was at that stage empty save for water tanks and a lift machine room. However, the Grandfather began erecting a shelter on the Roof directly outside the landing at the top of the Staircase. At first, the shelter consisted of a kitchen and storage room which were not completely covered. The Grandfather also built a small toilet on the Roof.

(4)  In 1965, the Grandfather installed a wooden door with a lock at the landing at the top of the Staircase leading to the Roof, and intended to process the whole of the Roof for his family’s use.

(5)  In 1966, whilst the Mother was in primary school, her younger brother was born. At that time, the family was still sleeping on the landing at the top of the Staircase. Due to the expansion of the family, the Grandfather rebuilt the shelter on the Roof into a house. In 1970, all of the family’s belongings were moved from the Staircase to the house on the Roof.

(6)  The shelter/house on the Roof was gradually improved and expanded over time. When the Mother was in secondary school, the house was constructed with metal sheets and steel frames, and comprised a bedroom, storage room, kitchen and living room. In its early years, passers-by could see into the house from the outside, but in the early 1980s the Grandfather added walls to the house to increase the family’s privacy.

34.  P adduced aerial photographs of the Roof dated from 1962 to 2009, and said to depict the progressive construction of structure(s) on the Roof by the Grandfather/Family. Under questioning, P accepted that dates and labels on the aerial photographs had in some instances been added by him based on what the Mother had told him from her recollection, and in other instances by an expert witness who was in the event not called to give evidence. The IO did not admit the accuracy of the dates or descriptions marked on the aerial photographs, but neither did it adduce countervailing documentary or photographic evidence.

35.  P also produced an assortment of photographs from various points in time, depicting the Roof, structures thereon, and the Family’s use of the same; including one dated 1965 showing the Grandmother on the Roof apparently under some kind of makeshift structure. P also produced a telephone bill dated 1969 which bears the Roof as the Grandfather’s address. 

36.  The IO pleaded that around 1969, the Grandfather asked for and was given permission by the Union to erect a bathroom and lavatory of the Roof (before which he had been permitted to use the space next to the Staircase as a penthouse for rest). Since about 1980, the Roof was trespassed by many squatters believed to be drug addicts, so the Union asked the Grandfather to safeguard the Roof as part of his duties. In return, the Union permitted him to build a temporary shelter on the Roof at his own expense, and the family was permitted to live there[2].

37.  Ultimately, the degree of the parties’ disagreement on the time at which the Roof was occupied and structure(s) were constructed, is rather limited[3].

38.  In the absence of significantly conflicting evidence (and leaving aside the separate issue of permission/license, dealt with in Section F below), I accept the Mother’s evidence on the time-line to be broadly accurate. I also accept the dates and other descriptions marked on the aerial photographs, to be approximately correct based on the Mother’s recollection and understanding. 

39.  I therefore find as facts that: (i) at some time after 1963 the Grandfather began to construct limited structure(s)/shelter on the Roof; (ii) after 1966 the Grandfather expanded/improved these, such that his family moved to live on the Roof around 1970; and (iii) over time the Grandfather and the Family continued to modify, expand and improve the structure(s)/dwelling on the Roof. 

The Grandfather’s work for the Union and the IO

40.  Both parties accepted that the Grandfather was employed/engaged by the Union and then the IO. The parties disagreed on certain details of this employment (including precise timing, sufficiency of remuneration, and exact nature of work). Ultimately, I do not consider these differences to be particularly acute or material to the outcome.

41.  P pleaded that since about 1963, the Grandfather operated his shop Wing Key, in partnership with a Mr Leung Hok Nin (“Leung”), at the ground floor of the Building. Since about 1980, he was paid by the Union and then the IO, to do odd jobs for the Building. In evidence, P accepted that he had limited knowledge about the Grandfather’s work and money matters, particularly at earlier stages.

42.  The Mother’s evidence was that in addition to operating Wing Key, the Grandfather worked for the Union and then the IO as a part-time manager and fee collector, collecting items such as management fees from households in the Building. In 1988, he stopped operating Wing Key and moved out of the Building, but still returned frequently to work as a part-time fee collector, provide utility maintenance services and perform odd jobs[4].

43.  The IO pleaded that around 1963 the Union employed the Grandfather as a part-time management officer, whose duties included collecting management fees and utility expenses from owners, and performing utility related works in the common parts. The Grandfather also assisted with applications for the Building’s utilities, and in the 1960s, he applied for the Building’s utilities using Wing Key’s name[5]. This was supported, broadly, by the evidence of Tam and Ip[6].

44.  Various of the IO’s minutes shed further light on the nature of the Grandfather’s work, describing him as a “handyman” [7]. They show that in 1990, his salary as handyman was increased by HK$200 to HK$1,000, and continued at that level thereafter. They also show the Grandfather being authorised by the IO to collect various arrears from the owners, and to attend the Small Claims Tribunal for this purpose. The minutes further demonstrate that the Grandfather continued to perform this type of work for the IO until he passed away in 2001.

Access to the Roof: the Wooden Door

45.  As noted above, P’s case was that in 1965, the Grandfather installed a wooden door (the “Wooden Door”) at the stop of the Staircase, leading to the Roof[8].

46.  It is common ground that the only way to access the Roof was via the Staircase, and by passing through the Wooden Door at the top of the Staircase leading out onto the Roof. The structure/house which was constructed on the Roof was on the outside of the Wooden Door, so that after passing through that door one had to then pass through the structure/house to access other parts of the Roof.

47.  The parties differed as the control exercised by the Grandfather/Family (if any) over access to the Roof through the Wooden Door.

48.  The Mother’s evidence was that the original wooden door had a latch which could be pushed up, but this was replaced at some point in the 1970s with another wooden door which had a lock. The evidence of the Mother and the P was that only the Grandfather (and later the Family) had keys to the lock, and others from the Building could not access the Roof without their permission. The Grandfather/Family would lock the Wooden Door at times, such as when they were not present at the Roof, and at night. Under cross-examination, the Mother accepted that the Grandmother would sometimes leave the Wooden Door open during the day whilst she was at the Roof, for ventilation[9].

49.  In contrast, Ip’s evidence was that the Wooden Door was not locked, and residents could freely access the Roof, at least during the day. Tam accepted that the Wooden Door could be locked from the inside and that the Family had the key, but said it was not locked during the day.  He did not know whether the door was locked at night, but accepted that it may well have been. 

50.  Tam and Ip both gave evidence that when the Grandfather was given permission to build a dwelling on the Roof in 1980, this was on the express basis that he was not permitted to lock the Wooden Door except at night, so that owners were still free to enter and leave the Roof as they pleased. However, they both accepted under questioning that they did not personally witness a conversation with the Grandfather to such effect, but rather had been told this by others[10].

Access to the Roof: maintenance, repairs, recreation

51.  It is common ground that residents of the Building and the IO had access to the Roof for certain purposes. Again, the details are disputed.

52.  Most notably, P’s case is that such access was only with permission of the Grandfather and/or family members, which permission could be and sometimes was refused. The IO’s case is that the Grandfather and the Family were not in a position to refuse access to the Roof, and did not do so. 

53.  P’s relevant evidence included that: 

(1)  The Family did not allow anyone on the Roof, except for maintenance of the Building’s public facilities. The Grandfather told P that although the Roof was the Family’s, other residents needed to have such works done. Accordingly, the Family allowed workers to pass through the house and access the Roof for such works. 

(2)  The public maintenance works on the Roof included lift maintenance approximately 2 to 3 times per month[11]; water tank cleaning approximately once per year; works on the external wall, water-proofing, and television antenna works. For private antennae, individual households would request access to the Roof once in a while to install or maintain antennae, but this was much less frequent after 1996 when a public antenna was installed.

(3)  All residents knew that the Roof was exclusively occupied by the Family, so that permission would be asked for access. Permission would sometimes be sought by a phone call from the management office, and sometimes simply by knocking on the Wooden Door. For lift maintenance and water tank washing, the Family would never refuse permission. For antenna installation, permission was rarely refused; the Grandfather would watch the installation of private antennae to ensure it was done correctly. 

54.  The Mother’s evidence here, was broadly similar to P’s[12].

55.  The Mother also gave evidence that in the earlier days, the Grandfather and Grandmother would allow a few elderly residents who were their friends to dry blankets on the Roof, but access was not permitted for other purposes.

56.  P and the Mother also claimed in their witness statements that when new residents moved into the Building, they would sometimes go to the Roof out of curiosity. The Family always told them: “The Roof is ours. There is nothing to see up here. No one is allowed entering our roof without our permission”.

57.  As to the IO’s evidence:

(1)  Ip said that since 1963 she often hung clothes on the Roof, and occasionally took her grandchild to play there. All owners could freely enter and leave the Roof, and she saw other owners hang clothes, repair hoses and gather there. After the dwelling was built around 1980, the owners remained free to enter and exit the Roof without the Family’s permission. 

(2)  Tam said that he personally went up to the Roof frequently (approximately once per week) to inspect it[13]. The Roof was a public area and repair works were often required on the lift, water tank and antennae. The Wooden Door was not locked so he could access the Roof freely and without permission[14].

(3)  Chan said that on several occasions he went to the Roof to deal with works, that the door was open during the day, workers were going in and out, and there was no need to seek permission. When he went to the Roof to look at antennae or water pipes, he was never stopped, and as Chairman of the IO he never received any complaint that anyone could not access the Roof. 

Access to the Roof: meetings of the IO

58.  It is common ground that periodically, meetings of the IO were held on the Roof[15]. Again, the details are not agreed, and there is a dispute whether this was pursuant to permission given by the Grandfather/Family to the IO for each such meeting, and whether such permission was ever refused.

59.  P said that from the time he was a boy, meetings of the IO took place on the Roof, with approximately 30 people during a weekday evening, from around 8:00 or 8:30 until 10:00pm. Normally, general meetings of the IO were held on the Roof, about three times per year. He accepted that when such meetings were held, the whole Family would go back inside the house and not disturb the meeting, and that the Grandfather would set up chairs for the owners to attend; although according to P’s recollection the Grandfather did not prepare tea for the meetings.

60.  P said that such meetings were held with the Grandfather’s permission (and later, that of other family members). From time to time, a Mr Tang from the IO would come to discuss various matters with the Grandfather, including permission for meetings. He recalled that on some occasions when the Family was having a meal or visitors, the Grandfather would decline permission, in which case the meeting would be held downstairs or at a nearby community centre.

61.  The Mother gave similar evidence[16].

62.  Tam’s evidence was that meetings on the Roof began around the time of the IO in 1982, since previously, the Union rented its own premises within the Building. When the IO or MC planned a meeting they would notify the Grandfather, who would prepare chairs and tea in advance, and tie up the dogs on the Roof. During meetings, the family would remain in the dwelling to avoid causing disturbance, and afterwards the Grandfather would tidy up.

63.  Tam accepted, as did the IO’s other witnesses, that IO meetings were sometimes held at venues other than the Roof[17]. He disagreed, however, that the Grandfather or the Family ever refused permission for meetings on the Roof. Rather, the other venues were used if they would be more comfortable than the Roof for a particular meeting (eg due to being airconditioned).

64.  The evidence of Ip and Chan on these points, broadly supported Tam’s[18].

65.  Tam and Ip also gave evidence that on several occasions, P’s father rushed out during a meeting on the Roof to quarrel with the owners; but was immediately stopped by the Grandfather who said that they were not the owners and had no right to speak.

66.  The witnesses from both sides agreed that IO meetings on the Roof took place in a particular sheltered area, which was also used by the Family for dining. They disagreed, however, on the genesis of the sheltered area. The IO’s witnesses said that the sheltered area was built by the Grandfather in the early 1980s, pursuant to the IO’s instruction to build an area for its meetings, at the time the IO permitted the Grandfather to build the dormitory on the Roof[19]. When cross-examined on this, P denied that the IO had instructed the Grandfather to build the sheltered area for IO meetings, though he appeared to lack first-hand knowledge on point.

Utilities

67.  It is uncontroversial that from a relatively early stage, the Grandfather and the Family had access to electricity, water and telephone services on the Roof[20].

68.  The IO’s witnesses gave evidence that before 1993, there was only one electricity meter and one water meter for the whole Building. The costs of these utilities were divided between the owners, such that electricity and water used on the Roof was paid for by the owners generally, and not by the Grandfather/Family. However, following a major renovation of the Building in 1993, each unit and also the Roof had its own electricity and water meters such that thereafter, the Grandfather/Family bore their own charges for water and electricity used on the Roof.

69.  In their witness statements, P and the Mother said that the Roof had its own independent water and electricity meters, and the Family bore its own charges for electricity, water and telephone services. Under questioning, however, they both confirmed that they did know about the pre-1993 position on water and electricity.

70.  Accordingly, I find as facts that before 1993, the cost of the electricity and water used on the Roof was born by the owners generally, but that from 1993 the Grandfather/Family bore those costs. As for telephone charges, the documents show telephone bills being sent to the Grandfather at the Roof as early as 1969, and it appears to be uncontroversial that he paid these bills.

71.  It also seems not to be disputed that: (i) in 2001, P had a broadband network installed in the house for internet access, and subsequently bore the associated charges; and (ii) the Grandfather/Family did not pay any management fees, nor a share of the cost of periodic maintenance works carried out on the Roof.

Mail

72.  The IO’s witnesses accepted that the Grandfather and the Family received mail addressed to the Roof. P’s witnesses produced a number of examples, dating back as far as 1969.

73.  It was also accepted that the Family had a mailbox on the ground floor lift lobby of the Building, alongside the mailboxes for  units in the Building. There was cross-examination on this topic, though I consider the degree of relevant controversy to be limited. 

74.  I find as a facts that in 1993 new mailboxes were installed at the ground floor lift lobby, following which the Mother attached a piece of paper bearing the Roof’s address to a vacant mailbox[21], which was then used to receive the Family’s mail. The IO’s witnesses said, in essence, that the IO was content to allow this given that the Family lived on the Roof with permission, and needed to receive mail[22].

Animals and plants on the Roof

75.  P and the Mother gave evidence that over a substantial period starting from the 1960s until after the Grandfather’s death, the Family kept various animals on the Roof (including dogs, cats, poultry, birds), and also a substantial array of potted plants, flowers, fruits and vegetables grown for consumption by the Family.  

76.  The IO’s witnesses accepted that such animals and plants were kept on the Roof, and that permission was not given by the Union or the IO for this[23].

1993: 1^st Major Renovation

77.  In 1993, there was a major renovation of the Building (the “1^st Major Renovation”).

78.  The Mother said that on this occasion, the Family granted permission for maintenance workers to access the Roof to repair the exterior wall, and to replace/repair asphalt and tiles on the Roof[24]. However, the Family refused permission in respect of a waterproof layer on the Roof, because that would require demolition of the house. The IO and residents complained about this, but the Family ignored their complaints.

79.  The IO disputed this version of events as to permission being sought and partially refused. Tam, for example, said that water proofing works on the Roof were never part of the 1^st Major Renovation in 1993.

IO minute dated 5 June 1995

80.  The IO placed substantial reliance on a minute of an owners’ meeting called by the IO dated 5 June 1995 (the “1995 Minute”). For reasons discussed below, I consider this to be a key document.

81.  The 1995 Minute records that the resolutions passed included the following (as per the agreed English translation, and with emphasis supplied):

“3. Mr. Lam Tak Yin, the handyman, had served in the building for many years. He was now very old. The daily maintenance work was quite demanding for him. In order to lighten his burden, it was suggested that Mr Lam retire. A long service payment from March 1982 to the date he retired would be given to him. His family were living on the rooftop of this building. The owners agreed to keep the status quo and let his family to continue to live on the roof. The above issues would be discussed with Mr. Lam”.

82.  Tam was Chairman of the meeting, and signed the 1995 Minute.  He was the only witness in a position to speak directly to the minute. His evidence was to the effect that shortly after the Grandfather’s intended retirement in 1995, the Grandfather asked the IO to be reinstated, and the IO agreed. Accordingly, the IO continued to pay the Grandfather salary until his death in 2001, and to allow the Family to occupy the Roof.

83.  P and the Mother ultimately agreed that after 1995 the Grandfather did not in fact retire from work for the Building. Rather, he continued on at least a part-time basis doing miscellaneous jobs, and received salary until he passed away.

2001 to 2010: period following the Grandfather’s death

84.  The Grandfather passed away on 25 August 2001. Thereafter, P and certain other family members continued to live on the Roof[25].

85.  In 2002, said P, one of his brothers moved out of the Roof, and in 2008 his parents and other brother also moved away. P continued to live there as sole resident, though his parents and certain other family members would sometimes visit, and stay for several days at a time. In 2010, P married his wife, and they lived at the house on the Roof together. 

86.  P said that during his time as sole resident, unless his family members were staying temporarily, he would lock the door to the Roof when he went out in the morning, and also on his return from work in the evening. If the IO wished to access the Roof they would telephone P eg at work, and he would provide access[26].

87.  After 2008, a second major renovation of the Building was carried out (the “2^nd Major Renovation”)[27], which required access to the Roof, including for waterproofing works. P said that he allowed access for these works[28].

88.  The IO’s witnesses said that after the Grandfather passed away in 2001, inquiries were made with P and his family whether any of them was willing to take over the Grandfather’s previous work for the IO, but this was declined[29]. The MC decided not to require the Family to move from the Roof immediately, but rather to allow them some kind of grace period or flexibility. 

89.  Chan said that around this time, he and other MC members discussed with certain of the Family (but not P) their moving from the Roof. P’s father said that they had lived there for a long time and did not know where to move to, but never mentioned that the Roof belonged to the Grandfather/Family.

90.  In 2003, the IO engaged a management company (“Bella Casa”) for the Building. A minute of an MC meeting dated 9 September 2003 records, inter alia, that the unauthorised building works (“UBWs”) on the Roof violated regulations and hindered maintenance, and the MC agreed to engage lawyers in this regard. By the time of an MC meeting on 29 September 2003, the minutes referred to the “illegal” occupation of the Roof and UBWs there. 

91.  On 14 March 2004, solicitors for the IO sent to the occupiers of the Roof a letter (the “2004 Letter”) stating, inter alia, that the Roof had been occupied without consent of the IO in breach of the DMC, that it was part of the Building’s common area, and notifying the occupiers to deliver to the IO vacant possession within one month.

92.  Chan’s evidence was that in 2009, when the 2^nd Major Renovation was approaching, it was clear that the structures on the Roof were going to partially hinder the works (ie certain of the waterproofing). The IO delivered a letter dated 28 September 2009 to the occupiers of the Roof, again referring to unlawful occupation, and demanding that they move out of and demolish the UBWs within one month.

93.  A minute of an MC meeting records that on 11 November 2009: (i) Chan and others had a discussion with P regarding the illegal occupation of the Roof; (ii) P said that his occupation did not cause any inconvenience to or affect the residents, and did not understand why he was asked to move out; and (iii) P indicated that he would not move away but would assist with completing the waterproofing works.

94.  The IO delivered a further letter dated 8 October 2010, again requiring the occupiers of the Roof to move out of and demolish the UBWs within one month.

December 2010: Replacement of the Wooden Door with the Steel Door

95.  It is common ground that in December 2010, the IO arranged for the Wooden Door to the Roof to be replaced with a stainless steel door (the “Steel Door”).

96.  P said that on 7 December 2010, he returned home to discover that contractors engaged by the IO were in the process of replacing the Wooden Door. P demanded an explanation, asked for all the keys to the Steel Door, and was given keys to it[30]. P reported the matter to the police, and delivered to the IO a letter complaining and reserving his legal rights regarding demolition of the Wooden Door. P ultimately accepted that he did not know whether the IO had retained a key to the Steel Door, after its installation[31].

97.  Chan said that the IO replaced the Wooden Door with the Steel Door as part of the 2^nd Major Renovation, and to comply with fire safety requirements. The IO expected that P would object but went ahead anyway. They received P’s letter of complaint, which was not taken seriously or responded to, since the IO considered that the Roof was part of the common area. 

2011 onwards: demolition of the structure(s) and P leaving the Roof

98.  During 2010 and 2011, certain correspondence was exchanged between the Buildings Department (“BD”) and/or the Building Authority (“BA”), the IO and P, regarding the structure(s) on the Roof[32].

99.  This culminated in a closure order dated 4 March 2011 (the “Closure Order”) being made by District Judge E Yip under section 27 of the Buildings Ordinance, ordering that the UBWs on the Roof be closed under the direction of a police officer and remain closed until demolished.

100.  P’s evidence was that following the Closure Order, he moved out of the Roof during July 2011. He tendered in evidence various photographs and video clips depicting the Roof and the interior of the house, shortly before he and his wife moved out.  It is P’s case that despite having ceased to live at the Roof from this time, he still retained possession of it, having moved out only “temporarily”.

101.  P said that on the day he moved out, he locked the Steel Door and gave one of the keys to the Building’s security guard to enable access for emergencies, maintenance and repairs, but retained the other three keys. After July 2011, he returned to the Roof approximately two or three times in each of 2012 and 2013.

102.  Upon a return trip during 2014, P discovered that the lock to the Steel Door had been removed and that CCTV had been installed on the Roof, both without his permission. P made a report of criminal damage to the police, and affixed a notice to the Steel Door[33]. P said that he affixed a chain and padlock to the Steel Door on one or two occasions, but later discovered that they had been removed. It was around this time that he decided finally to commence legal proceedings, and issued a writ on 31 March 2014. 

103.  For the IO, Chan’s evidence was that on 3 April 2011, the BD and police executed the Closure Order, sealing up the UBWs on the Roof. However, the occupiers were allowed some further time to access the Roof to collect possessions, and time extensions were granted for demolition of the UBWs. By January 2012, the UBWs on the Roof had been demolished by the IO’s contractors. 

104.  Chan said that during/following the demolition works on the Roof, the lock to the Steel Door was changed, and Bella Casa was instructed to keep the door locked. P should not have been able to access the Roof after this, though Chan could not rule out that he did. In November 2013, the Fire Services Department issued a fire abatement notice to the IO, requiring the Steel Door to be kept unlocked for fire safety reasons; and from then onwards, the Steel Door was kept unlocked. 

F. ANALYSIS AND FINDINGS ON CENTRAL ISSUES OF CONTROVERSY

Alleged license(s)

105.  As noted above, there is a central factual dispute whether the Grandfather (and subsequently the Family, including P) occupied the Roof pursuant to an oral license or licenses granted by the Union and the IO.

106.  Although this issue may be logically subsequent to the issues of factual possession and animus possidendi (considered below), I deal with it first, since I consider it to be largely dispositive of the proceedings. 

107.  To recap, the IO’s case on license is that: (i) in or following 1963, the Union granted the Grandfather a license to use the Staircase for rest, without payment; (ii) around 1969, the Grandfather asked for the Union’s permission to build a bathroom/lavatory on the Roof, which permission was granted; (iii) around 1980, the Union requested the Grandfather to safeguard the Roof as part of his duties, and in return orally permitted him to build a structure on the Roof as shelter during his term as management officer; (iv) after the structure was built, the Grandfather asked for and was granted the IO’s permission for his family members to live there; (v) on each occasion (particularly (iii) and (iv)), the Grandfather was told and accepted that the arrangement was only temporary as long as he continued to carry out his duties for the Building, following which the Roof would need to be vacated.

108.  P denies the alleged license(s). His case is that the Grandfather, the Family and P were all along in adverse possession of the Roof (ie they were trespassers).

109.  It is notable that on this central factual controversy, there was limited first hand evidence from the witnesses:

(1)  The Grandfather is no longer alive. P and the Mother were unable to give definitive/direct evidence as to whether the alleged license(s) had been orally granted to the Grandfather. Rather, the thrust of their evidence was that they believed there was no license, in light of all the circumstances, including that: (i) neither the Grandfather nor any other family member nor the IO had ever mentioned such an arrangement to them; and (ii) the Grandfather would have done so, particularly if the Family would have to leave the Roof when he ceased his duties. Further, they said, from time-to-time certain residents of the Building complained of the Family’s occupation of the Roof, which complaints the Family ignored.

(2)  Ip gave evidence on the express license(s), but appeared to accept under questioning that she was not personally privy to the relevant conversations with the Grandfather. Rather, this was done by others involved in the Union and IO (a Mr Ma and a Mr Tang) who are no longer alive, and from whom Ip learned of the arrangements. However, under questioning Ip referred to one incident in the 1980s when, during a conversation, the Grandfather mentioned to Ip that he was permitted to live at the Roof and would have to leave when he ceased duties for the Building. 

(3)  Tam also gave evidence on the express license(s), but again appeared to rely (at least in significant part) on what he had been told by others (ie his own father, Mr Tang and Ip).  

(4)  Chan was clear that he had not witnessed the relevant conversations with the Grandfather, having only become an owner in 1996. In the early 2000s, he said, he had been told of the position on the license(s) by Tam.

110.  Notwithstanding this, and having considered all the evidence on point, I accept the IO’s case on license. I find as a fact that the Roof was occupied by the Grandfather and Family under an express oral license or license(s), with the essential features as asserted by the IO.

111.  My principal reasons are three-fold.

112.  First, the 1995 Minute is an important piece of documentary evidence on point, and I consider that it firmly supports the IO’s factual position[34].

113.  The relevant wording in the 1995 Minute is set out at §81 above. That wording is clear: the IO resolved to let the Family continue to live on the Roof, which is clearly indicative of permission. The minute indicates that this would be discussed with the Grandfather, and I find as a fact that the IO’s said permission would have been, and was, communicated to the Grandfather.

114.  In circumstances where the IO specifically resolved to permit the Family to continue to live at the Roof, and this was communicated to the Grandfather, it is difficult to see how the Grandfather or the Family could have been occupying the Roof as trespassers, at least from the time of the 1995 Minute up until the Grandfather’s death in 2001. 

115.  That leaves the question of the position prior to 1995; but the 1995 Minute speaks also to that period, by its reference to keeping the “status quo” and use of the word “continue”.

116.  A fair reading of the whole minute, in my view, clearly supports the IO’s position that there was in 1995 an existing state of affairs whereby the Grandfather and the Family had been permitted for a long period to live at the Roof. Further, the discussion of their residence on the Roof in the context of the Grandfather’s impending retirement is consistent with the IO’s case that the license(s) were originally to last only until the Grandfather stopped working for the Building.

117.  Conversely, the 1995 Minute sits uneasily, to say the least, with P’s case that the Family were all along in adverse possession of the Roof. 

118.  When cross-examining the IO’s witnesses, and in argument, Ms Poon suggested that the reference to “status quo” in the 1995 Minute was to the status quo of tolerating or acquiescing in the Grandfather’s/Family’s occupation of the Roof. In this regard, Ms Poon cited case law on acquiescence in the context of implied licenses: see §17 above.

119.  I am not persuaded by this line of argument. Acquiescence describes a situation in which the paper owner is aware of the squatter’s presence, but fails to act. That is not the scenario in this case.

120.  By the 1995 Minute, the IO expressly indicated that it gave permission for the occupation of the Roof; and as discussed above, I accept the IO’s case that there had been earlier express discussions by which license(s) were granted[35]. Further, the evidence discloses numerous active interactions between the Union/IO and the Family in relation to the Roof which remove the scenario from one of mere acquiescence (notably the use of the Roof for various of the owners’ purposes: see below)[36]. 

121.  Second, I consider the IO’s version of events on license to be inherently more likely than P’s, particularly given the Grandfather’s status within the Building.

122.  It is uncontroversial that the Grandfather worked for the owners of the Building on at least a part-time basis as a handyman or caretaker, and was paid for such work.

123.  In these circumstances, the more likely and natural scenario is that the Grandfather was permitted by the Union and then the IO to occupy the Roof, as part of the quid pro quo of working for the Building and in order to facilitate the carrying out of his duties.

124.  Conversely, I find P’s version of events to be inherently unlikely, namely, that the Union/IO/owners accepted a situation in which their paid employee was nevertheless occupying the Roof as a trespasser and sometimes denied them access.

125.  This point is reinforced by the matters discussed below, in relation to factual possession. 

126.  Third, focusing on the witnesses’ evidence (discussed at §109 above), I favour the IO’s factual position on license.

127.  It is true that all or much of the IO’s evidence on express license, was hearsay, but that goes only to weight. I do not think that the IO’s witnesses were untruthful in their evidence that they were told by others (some of whom have now passed away) of the license arrangements, at points in time long prior to this litigation. I accordingly accept that they were so told, and that what they were told was true. I am also inclined to accept Ip’s evidence of a specific conversation with the Grandfather on point, during the 1980s[37].

128.  As against this, P and the Mother were not in a position to deny with any certainty, the alleged conversations between the Grandfather and the Union/IO in relation to license: see above.

129.  Ms Poon argued strenuously, and put to the IO’s witnesses, that if any such license arrangement had existed, it would have been recorded in writing eg in the minutes of the Union or IO. The IO’s witnesses responded to the effect that, particularly during earlier periods, it was not the practice within the Building to meticulously minute or write down every point, and much was done orally and informally.

130.  I consider that this explanation is realistic, and I accept it. Prior to the IO’s incorporation, there were apparently no or hardly any minutes at all; so I do not find it particularly surprising that there is no minute or other document formally recording the license arrangement(s). Indeed, the only minute before 2001 which speaks to the alleged license(s) one way or another, is the 1995 Minute, and that document supports the IO’s case[38].

Factual possession and animus possidendi: period up to 2001

131.  Given the above findings on license it is, strictly speaking, unnecessary to determine whether the Family were in factual possession of the Roof with the requisite intention; since even if they were, such possession was pursuant to license and therefore not adverse: see §15 above.

132.  For completeness however, I deal with those issues briefly, noting that there is some overlap with the facts relevant to the issue of license. 

133.  In short, whilst it is clear that the Grandfather, the Family and P lived at and occupied at least a portion of the Roof for a considerable period, I find that their occupation was not of the requisite character to amount to factual possession (including exclusive possession) of the Roof, nor was it accompanied by a manifested intention of the type required for the law of adverse possession to operate.

134.  In particular: 

(1)  Ps’ witnesses accepted that the Union/IO/owners accessed the Roof for various types of maintenance works for the owners’ benefit, and that this was done quite regularly (several times per month): see above.

(2)  P’s witnesses accepted that meetings of the IO were, at least sometimes, held on the Roof: see above. This feature is in my view particularly significant, since the use of the Roof for such meetings is indicative of its status as part of the Building’s common area, to be used for the benefit of the owners as a whole. That is so, notwithstanding that IO meetings were sometimes held elsewhere.

(3)  Ps’ witnesses accepted that antennae were installed on the Roof (both private and public), which is a further mark of the usage of the Roof by the owners for their collective and individual purposes.

(4)  On access to the Roof, the central point of factual disagreement was whether the Grandfather (and the Family/P) sometimes refused permission: see above. On this issue, I prefer and accept the IO’s position on the facts.  Again, I find P’s position to be implausible, namely, that the owners - who were on any view legally entitled to access the Roof - would nonetheless repeatedly seek permission for such access from their paid caretaker/handyman; and further, that this was sometimes refused, which the owners simply accepted. I do not see why the owners would have behaved in such a manner.

(5)  In my view, the IO’s case is considerably more plausible and natural: the owners were able to access the Roof for various purposes because everyone knew and accepted that, despite the Family residing at the Roof, the owners were entitled to make use of the common area. It was generally understood that the Grandfather/Family could not refuse the owners access to the Roof, and they did not do so[39].

(6)  I am not persuaded by the evidence of P and the Mother referred to at §56 above, that the Family made statements to residents to the effect that the Roof was theirs and no-one was allowed to enter without permission. This evidence strikes me as self-serving, and unlikely to have occurred or to have been accepted by the owners. 

135.  In so concluding, I have taken into account the various features of the case relied on by Ms Poon, and said to be indicia of the Family’s factual control and intention to possess,including: (i) installation of the Wooden Door and structure(s) on the Roof; (ii) retention of key(s) to and alleged control over use of the door; (iii) keeping animals and plants on the roof; (iv) paying for utilities on the Roof at certain times; and (v) receipt of mail for the Roof at the Building[40]. I have also considered the various authorities cited by Ms Poon, said to have comparable facts[41].

136.  However, the analysis is dependent on the full set of relevant facts in each case. Given the factual findings and features set out above – in particular that the IO, owners and residents were able to freely access the Roof for various common and individual purposes – I find against P on factual possession and intention.

137.  In respect of the matters at §§134(1) and (3) above, Ms Poon cited Wing House Investment Co Ltd v. Fung Sok Hun [2016] 1 HKLRD 1, to argue that the mere fact of the IO’s access to the Roof for maintenance would not negative P’s exclusive possession. However, the decision in that case turned on the meaning, construction and effect of a deed of mutual covenant and certain assignments, rather than the concept of exclusive possession for the purposes of adverse possession. For present purposes, I do not think that the case takes matters significantly further.

August 2001 to July 2011

138.  It is apparent that at a certain point in time following the Grandfather’s death, the license(s) which had previously been granted to occupy the Roof were brought to an end, and P became a trespasser: see §§90 to 94 above.

139.  I accept the IO’s position here, that: (i) following the Grandfather’s death and despite the original terms of the license(s), the IO permitted the Family to continue to living at the Roof for some time; and (ii) the license(s) came to an end within one month of the 2004 Letter: see §91 above.

140.  Given my findings on the period prior to August 2001 (see above), and on the period following July 2011 (see below), it unnecessary to consider whether P was in adverse possession of the Roof during the period from April 2004 to July 2011; because even if he was, that period is considerably shorter than the 12 years required to acquire possessory title[42].

Period after July 2011

141.  It is part of P’s case that even after he moved to live elsewhere in July 2011, he nonetheless remained in adverse possession of the Roof.

142.  I do not think that this position can be seriously maintained where P’s own evidence included that: (i) when he left, P provided to the Building’s security guard a key to the Steel Door, and was not subsequently contacted by the IO for access to the Roof; (ii) after he left, P only visited the Roof a few times per year; (iii) after P left, the IO’s contractors accessed the Roof to demolish the UBWs; and (iv) the IO installed CCTV on the Roof in 2013 and removed the lock to the Steel Door in 2014, without P’s involvement or permission.

143.  Accordingly, I find that after P stopped living at the Roof in July 2011, he was not in possession of the Roof (let alone in factual and exclusive possession or with an intention of the type required for adverse possession) [43].

P’s other arguments

144.  In closing submissions, Ms Poon argued that any license(s) granted to the Grandfather were terminated in either 1982 or 1993[44]. In this regard, she relied on certain evidence given under cross-examination whereby Ip volunteered that the Grandfather was asked to move away from the Roof around the times of: (i) establishment of the IO; and (ii) the 1^st Major Renovation[45].

145.  I do not accept that the license(s) were terminated at either of these points in time. In respect of 1982, the tenor of Ip’s evidence was that the Grandfather was asked to move away, but responded that he would like to wait until a public housing unit was available, and the IO did not drive him away. As to Ip’s evidence on the 1^st Major Renovation, I consider it likely that any discussion which occurred was along similar lines (ie not a formal termination of license, but a discussion about leaving, which was not ultimately pushed by the IO). Indeed, the 1995 Memo sits poorly with P’s argument that the license arrangement was terminated in either 1982 or 1993.

146.  More importantly, even if it were correct that the Grandfather’s license(s) were terminated in 1982 or 1993, that would not avail P, since Family had the IO’s express permission to remain at the Roof by at least 1995: see above. Any period of adverse possession running from 1982 to 1995, or from 1993 to 1995, would be of insufficient duration: see §12 above.

147.  P also argued that any license granted to the Grandfather was invalid, since under section 34I of the Building Management Ordinance (Cap.344) (the “BMO”) and the DMC of the Building, the IO and the Union were not capable of allowing any person to use and occupy the Roof, without the consent of all the owners and/or by a resolution of the owners’ committee.

148.  Section 34I provides:

“Common parts

(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a

manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building”.

149.  However, as Ms Lau pointed out for the IO, Part VIA of the BMO came into force on 8 May 1993. Even if it were correct – which I do not necessarily accept – that the effect of its enactment was to render invalid a previously granted license (on the basis that such license was not supported by a resolution of an owners’ committee), that could only have been so from 1993 onwards, rather than retrospectively. By the time of the 1995 Minute, there was a resolution of the IO permitting the Family to occupy the Roof. Accordingly, any resulting period of adverse possession, could only run from 1993 to 1995 (ie insufficient)[46].

150.  Finally here, even if it were correct that the license(s) which were purported to have been granted were somehow invalid, this would not alter the outcome, given the above findings on factual possession and intention.

G. CONCLUSION AND DISPOSITION

151.  For the above reasons, P’s claim is dismissed.

152.  I consider that costs should follow the event, and make an order nisi that: (i) P pay the IO’s costs of these proceedings, to be taxed if not agreed; and (ii) P’s own costs be taxed in accordance with the Legal Aid Regulations.

153.  Finally, I thank both counsel for their able assistance in this matter.