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DCMP 1009/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 1009 OF 2013
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IN THE MATTERS of the premises known and registered in the Land Registry as the Remaining Portion of New Kowloon Inland Lot No 150, 5th Floor, No 189 Yee Kuk Street Kowloon
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and
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IN THE MATTERS of section 17 of the Limitation Ordinance, Chapter 347
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BETWEEN
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WONG WING MAN |
Plaintiff |
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and
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WONG CHUNG ON |
1st Defendant |
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NG SHOOT HEUNG |
2nd Defendant |
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| Before: Deputy District Judge Timon Shum in Chambers (Open to Public) |
| Date of Hearing: 4 April 2014 |
| Date of Decision: 4 April 2014 |
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DECISION
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1. This is a claim for adverse possession of land.
2. By an originating summons taken out on 15 April 2013, the plaintiff is claiming for a declaration:-
(a) That the defendants’ title to the property known and registered in the Land Registry as the Remaining Portion of New Kowloon Inland Lot No 150, 5th Floor, No 189 Yee Kuk Street Kowloon (hereinafter described as “the Property”) has been extinguished pursuant to section 17 of the Limitation Ordinance (Cap 347);
(b) That the plaintiff has established a possessory title to the Property.
The plaintiff’s evidence
3. In support of the originating summons, the plaintiff filed her 1st affirmation and 2nd affirmation on 30 May 2013, 3rd affirmation on 18 December 2013 and 4th affirmation on 22 January 2014.
4. According to the plaintiff’s evidence, the 1st and 2nd defendants were the registered owners of the Property. This can be seen from the land search record dated 6 December 2012 and produced as exhibit “WWM-2”. The 1st and 2nd defendants held the property in joint tenancy. The 1st defendant passed away on 15 May 1994.
5. The plaintiff was born on 19 May 1980. On 7 March 1997, the plaintiff, her parents and elder brother moved to live at the Property. The Property was introduced to the plaintiff’s father Wong Wai Hou through the introduction of his friend. The plaintiff’s father had to pay a sum of HK$1,000 per month to the 2nd defendant for the use of the Property.
6. Since then, the 2nd defendant would visit the Property about once a month to collect the sum of HK$1,000 from the plaintiff’s father. The family had to pay the rates and government rent for the Property. No management fees were required to be paid.
7. The aforesaid arrangement continued until the end of 1998. After collecting the payment for December 1998, the 2nd defendant had not visited the Property anymore. One or two months after this, the plaintiff’s father tried to contact the 2nd defendant by telephone but was not successful. The friend who introduced the plaintiff’s father to the 2nd defendant also did not have any idea as to the whereabouts of the 2nd defendant and did not have the means to contact her.
8. After losing contact with the 2nd defendant, the building in which the Property is located was in need of repair and maintenance. Each unit owner was required to contribute HK$12,000 in this connection. As the plaintiff’s father had lost touch with the 2nd defendant, he paid for the same. Several months later, the plaintiff was told by her father that as the 2nd defendant was missing and the family had paid for the repair and maintenance, they could treat the Property as their own.
9. In September 1999, the plaintiff’s father explicitly told her that he had no intention to pay for the use of the Property in future. At that time, the plaintiff was 19 years old and had just left school to start working as a tour guide.
10. Since 1999, both the plaintiff and her father have held the view that there is no need to pay anyone for the use of the Property. The padlock for the entrance door was changed. The plaintiff and her family continued to live at the Property. Nobody has raised any issue on their right to exclusive use of the Property or has demanded for payment.
11. In 2003, the plaintiff’s parents and elder brother moved out to live in a public housing unit in Tsing Yi. The plaintiff continued to live at the Property on her own. She has not paid anyone for use of the Property.
12. The plaintiff has produced the demand notes for rates and government rent as exhibit “WWM-1” to show that she and her family have been responsible for payment of the same since 1997.
13. The plaintiff has been in possession of the Property for 13 years and has not suffered any interference of her possession and quiet enjoyment of the Property.
14. She has been using the Property address as her correspondence address throughout the years. She has produced her monthly bank statements as exhibit “WWM-3” and envelopes of letters sent to her as exhibit “WWM-4” to confirm this point.
15. She has also produced pictures of herself and her family as exhibit “WWM-5” to show that she has been living at the Property for many years.
16. The plaintiff believes that the 1st defendant was the husband of the 2nd defendant. She has no idea of their whereabouts. She has made enquiries with her neighbours and they are unable to offer any information on the same.
17. The plaintiff says she has established a possessory title to the Property.
18. The plaintiff refers to a letter dated 31 December 2010 from Richfield Realty Ltd to show that the company was interested in purchasing all the units in the building, including the Property, for redevelopment purpose. A notice of meeting of owners on 11 August 2012 is also referred to by the plaintiff to show that there was an ongoing discussion of redeveloping the building in which the Property is located. There are also other redevelopment proposals being put forward to the owners of the building for their consideration.
19. The plaintiff, by this application, would like to seek the court’s declaration of her interest in the Property so that she can participate in the negotiations and discussions of various proposals for redevelopment. Even if the redevelopment plan does not work out, the plaintiff intends to spend a sum of money to repair and maintain the Property which is in poor condition, so that she can continue to live there.
20. Apart from the plaintiff’s own evidence, the plaintiff’s neighbour Wong Tsui Kum also filed an affirmation on 30 May 2013 to support the plaintiff’s application. Wong Tsui Kum has been living on 3rd Floor, No 189 Yee Kuk Street, Kowloon, ie in the same building in which the Property is located, for 56 years. She confirms that the plaintiff and her family moved to the Property in 1997 and the plaintiff has been living at the Property since then. Before the plaintiff and her family came to live at the Property, the same had been left abandoned for a long period of time without anyone living there. She does not know anything about the 2nd defendant and her whereabouts but says she might have come across the 2nd defendant in the building. She agrees that around 1999, the building required repair and maintenance and each unit was required to contribute HK$12,000 for this purpose.
21. The plaintiff’s father Wong Wai Hou also filed an affirmation on 30 May 2013 to support the plaintiff’s application. Basically, he is confirming the plaintiff’s version.
Discussions
22. The 1st defendant and the 2nd defendant were originally holding the Property as joint tenants. After the passing away of the 1st defendant on 15 May 1994 as evidenced by a death certificate, the 2nd defendant became the remaining registered owner.
23. As the 2nd defendant could not be located, the plaintiff obtained an order for substituted service from Master Lam on 29 January 2014. The originating summons and the supporting affirmations with exhibits have been served by advertising notice of these proceedings in Sing Tao Yat Po, a Chinese newspaper circulating in Hong Kong.
24. The issue in this case is whether the plaintiff has established adverse possession against the 2nd defendant.
25. Under section 7(2) of the Limitation Ordinance (Cap 347), the time period for a person to recover any land is 12 years if his right first accrued after 1991. And under section 17 of the Limitation Ordinance, at the expiration of the time period for any person to bring an action to recover land, the title of that person to the land shall be extinguished.
26. Section 12(2) of the Limitation Ordinance states as follows:-
“A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination:
Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”
27. In Universal Corporation (Color & Chemical) Limited v The Personal Representatives of Leung Shu Ming also known as Leung Shu Ming, Deceased, HCMP 733/2013, Madam Justice Au-Yeung applied the aforesaid section 12(2) of the Limitation Ordinance and said this at paragraphs 17 and 18:-
“By virtue of section 12(2) of the Limitation Ordinance, the oral monthly tenancy over the property should be deemed to have determined after the last period for which rent was paid. As the rent was collected on the first day of each month, and since Madam Ho has not collected rent from since 1 February 1984, the last rental payment was on or about 1 January 1984. Therefore, the tenancy would be deemed to have ended by 31 January 1984.
Continued possession of a property is considered to be adverse once the period covered by the last payment of rent has expired – in this case for about 30 years.”
28. Adopting a similar approach, the period covered by the last payment of rent in December 1998 expired on 31 December 1998. The continued possession by the plaintiff and her family afterwards is considered to be adverse.
29. In Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKLRD 241, the Court of Final Appeal stated the principles of adverse possession as follows:-
“… A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452.”
30. According to Madam Justice Au-Yeung in Universal Corporation (Color & Chemical) Limited v The Personal Representatives of Leung Shu Ming also known as Leung Shu Ming, Deceased, HCMP 733/2013, “the question of intention to possess is one of facts”.
31. The plaintiff deposed that several months after her father’s payment for the costs of repair and maintenance of the Property in 1999, she and her father considered that there was no need to pay any money to anyone for the use of the Property. They also changed the padlock for the entrance door around September 1999.
32. In view of the evidence put forward by the plaintiff, I am satisfied that the plaintiff has established adverse possession of the Property and the intention to possess since about September 1999.
33. So I make a declaration in the following terms:-
(a) The 2nd defendant’s title to the Property has been extinguished pursuant to section 17 of the Limitation Ordinance (Cap 347); and
(b) The plaintiff has established a possessory title to the Property.
34. I make no order as to costs in these proceedings. But the plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.
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( Timon Shum )
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Deputy District Judge |
Mr Stephen HK Fong, instructed by Damien Shea & Co, for the plaintiff
The 1st defendant and the 2nd defendant were not represented and did not appear
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