HO YUET PO v. THE ESTATE OF CHEO HO (OR HOW), deceased

DCMP 2300/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2300 OF 2012

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JUDGMENT

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Introduction

1.  In this case, the Plaintiff claims adverse possession of a property known as Front Portion of 8^th Floor (Flat B10 on 8/F), No. 22 Hoi Hong Street, Hong Kong (the“Property”).  She claims:

(1) a declaration that the title to the Property of the defendant or its successors-in-title has been, prior to the commencement of these proceedings, extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (the “Ordinance”);

(2) a declaration that the plaintiff, having been in adverse possession of the Property for a period in excess of 20 years before the commencement of these proceedings, has acquired a good possessory title to the Property; and

(3) anorder that the name of the plaintiff be entered in the register of the Land Registry as the registered owner of the Property in substitution for the name of the defendant.

2.  According to the records of the Land Registry, the registered owner of the Property was Cheo Ho (or How), the deceased defendant, who had passed away on 10 December 1978 (the “Deceased”).

3.  These proceedings were commenced against the estate of the Deceased.  No one came forward to represent the defendant.  On 13 December 2012 the court appointed the Official Solicitor for the limited purpose of accepting service of the originating summons.  After accepting service of the originating summons, the Official Solicitor became functus officio.  (See 15/6A/7 of the Hong Kong Civil Procedure 2013)  No one was appointed to act for the defendant to carry on these proceedings.  No notice of intention to defend was filed.

4.  The plaintiff had on 20 February 2013 obtained an order for substituted service of the Notice of Appointment to Hear Originating Summons and served the same on the defendant by inserting an advertisement in a Chinese newspaper.

5.  No one attended the hearing for the defendant on 28 March 2013. Mr Cheng representing the plaintiff applied at the hearing for an order for these proceedings to proceed in the absence of a person representing the estate of the Deceased under Order 15 rule 15 of the Rules of the District Court.  Mr Cheng also sought an order to dispense with service of the plaintiff’s affirmations in support of this application.

6.  In view of the matters deposed to in the plaintiff’s 2^nd affirmation filed herein on 7 December 2012 in support of the aforesaid appointment of the Official Solicitor, I was satisfied that there was no reasonable prospect that a person willing to act for the defendant could be identified and located.  I granted the plaintiff’s said applications at the hearing. (See paragraph 15/15/5 of the Hong Kong Civil Procedure 2013)

The plaintiff’s case

7.  The plaintiff’s case is that the Deceased was the godmother of the plaintiff’s brother, Ho Yee Sum.  The Deceased acquired the Property in about August 1968 and leased it to the plaintiff’s late father, Mr Ho Kwong (“Mr Ho”), in around 1968 by an oral periodic tenancy (the “Oral Tenancy”).

8.  The rent was paid at the beginning of every month directly to the Deceased until her death.

9.  The plaintiff produced to this Court a copy of the death certificate of the Deceased.

10.  After the Deceased passed away, the rent for the Property was collected by the nephews of the Deceased until April 1988.

11.  The plaintiff produced receipts for rent and rental deposit for the Property dated 25 September 1968 and 1 October 1968 respectively both for the sum of $150 signed by the Deceased.

12.  The plaintiff also produced rental receipts for the Property for the period from 1 May 1983 to end of December 1985 issued by a Chui Luk Ching (徐綠清) (“CLC”) and rental receipts for the Property for the period from 1 January 1986 to April 1988 (except for the month of October 1987) issued by a Chui Wing Man (徐詠文) (“CWM”).  CWM told the plaintiff’s family that CLC had passed away.  The plaintiff said that both CLC and CWM were nephews of the Deceased.

13.  The receipts produced showed that rent for the Property was paid monthly at the beginning of the month.  The rent started at $150 per month.  It had been increased to $500 per month when CLC started collecting the rent in May 1983. It was further increased to $600 per month in April 1984 and then to $700 per month in May 1986.  It remained at this level when CWM last collected rent in April 1988.

14.  The plaintiff said that her late father and Ho Yee Sum would go to the then address of CLC at Wing Hing Street to pay rent for the Property to CLC whereas CWM would attend the Property to collect rent. 

15.  The last time when CWM came to collect rent for the Property from Mr Ho was on about 6 April 1988.  Thereafter, no one came to collect further rent for the Property.  The plaintiff’s family did not know the address of CWM or his telephone number and was unable to contact him.

16.  The plaintiff’s solicitors had conducted searches on CLC and CWM at the Births and Deaths Registry with no positive result found.  The plaintiff’s solicitors had also conducted probate search on the Deceased with the Hong Kong court.  No record of application for probate or letters of administration in relation to the estate of the Deceased was found.   

17.  Mr Ho and his family continued to live in the Property without paying any rent since 1 May 1988.

18.  Two of the plaintiff’s brothers, Ho Yee Tin and Ho Yee Sum, moved out from the Property in 1984 and 1988 respectively.

19.  On about 1 September 1991, Mr. Ho’s family except the plaintiff’s elder sister, Ho Yuet Chun, and the plaintiff’s mother, Chan Yuk, moved out from the Property.

20.  The plaintiff’s another elder sister, Ho Yuet Ho, moved back to the Property on about 1 November 1998 while Ho Yuet Chun moved out in about December 1998.

21.  The plaintiff moved back to the Property in about August 2001 to live with her mother and Ho Yuet Ho until October 2001 when all of them moved out from the Property.

22.  The Property was left vacant until about November 2002 when the plaintiff and Ho Yuet Ho moved back again.  The keys to the Property were kept by Mr Ho when the Property was left vacant.  Mr Ho passed away on 12 November 2001.  After the death of Mr Ho, the keys were given to whichever member of Mr Ho’s family who needed to use the Property.

23.  Ho Yuet Ho moved out from the Property in about October 2009 leaving the plaintiff residing in the Property by herself until about February 2012 when the plaintiff also moved out.  The Property has been vacant since then.

24.  Despite the fact that the plaintiff had moved out of the Property, she still kept the keys to the Property.  The plaintiff said that after her family stopped paying rent of the Property and before the death of Mr Ho, the plaintiff’s family regarded Mr Ho as the owner of the Property.  After Mr Ho’s death, the plaintiff’s family considered the plaintiff as the owner of the Property since she spent the longest time at the Property.

25.  The plaintiff said that since May 1988, she and her family had taken up the management of the Property and paid the relevant expenses for the upkeep of the Property including electricity bills, water and sewage charges bills, rates and expenditure relating to the common area of No. 22 Hoi Hong Street (the “Building”). The plaintiff said that she had paid repair fee in relation to the common water pipes of the Building in April 2012 even after she and her family had moved out from the Property.  Her family also incurred expenses for internal decoration and improvements of the Property.

26.  The plaintiff contended that her family had been in continuous and exclusive possession of the Property since May 1988 with full intention to treat the Property as their own and the defendant’s interest in the Property had been extinguished under section 17 of the Ordinance.  She further contended that as she was currently the person in exclusive possession of the Property, she should have acquired a good possessory title to the Property.

The Limitation Ordinance

27.  The Ordinance has the following provisions which are relevant to this claim:

(1) “No action shall be brought by any other person to recover any land after the expiration of 12 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 7(2))

(2) “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.” (Section 12(2))

(3) “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) and where under the foregoing provision of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.” (Section 13(1))

(4) “Subject to the provisions of section 10 [which relates to land held under trust and does not concern us in this case], 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.” (Section 17)

28.  The Ordinance had been amended in 1991.  If the right of action accrued before 1 July 1991, the relevant limitation period stipulated in section 7 of the Ordinance was 20 years.  If the right of action accrued on or after 1 July 1991, the relevant limitation period has been reduced to 12 years.

Discussion and ruling

29.  From the evidence adduced, I accept that the tenancy between Mr Ho and the Deceased for the Property was an oral monthly tenancy.  This is not a claim of a squatter, but a claim from a former tenant of a periodic tenancy.

30.  Determination of the relevant limitation period is by reference to “the date on which the right of action accrued” as stipulated in section 7(2) of the Ordinance.

31.  Mr Ho last paid rent for the Property for April 1988. Mr Cheng submitted that by virtue of section 12(2) of the Ordinance, the oral monthly tenancy over the Property should be deemed to have determined after the period covered by the last payment of rent expired.  Accordingly, the right of action for recovery of the Property by its owner should have accrued by 1 May 1988.

32.  He further submitted that the continued possession of a property by a tenant was considered to be adverse once the period covered by the last payment of rent had expired. He relied on Moses v Lovegrove [1952] 2 QB 533; Hayward v Chaloner [1968] 1 QB 107; Jessamine Investment Co v Schwartz [1978] 1 QB 264 and Hero Smart Corporation Limited v謝美娟 & Anor (unrep. DCMP 346/2010, 26 April 2012) to submit that Mr Ho and his family were in adverse possession of the Property since 1 May 1988 and they were in adverse possession for more than 24 years when these proceedings were commenced on 14 September 2012.

33.  Possession for the purposes of the Ordinance, commonly described as adverse possession, includes the elements offactual possession and the requisite intention to possess.  The burden is on the plaintiff to establish his/her intention to exclude the whole world including the paper title owner of the land. (See Wong Tak Yue v Kung Kwok Wai & Anor [1998] 1 HKLRD 241 and Powell v McFarlane & Anor  (1979) 38 P & CR 452)

34.  What is possession?

35.  Slade J (as he then was) stated in Powell v McFarlane and Anor at 469 that:

“I would for my own part have regarded the word “possession” in the 1939 Act [Limitation Act 1939] as bearing the traditional sense of that degree of occupation or physical control, couple with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of trespass in relation to the relevant land; likewise I would have regarded the word “dispossession” in the Act as denoting simply the taking of possession in such sense from another without the other’s licence or consent; likewise I would have regarded a person who has “dispossessed” another in the sense just stated as being in “adverse possession” for the purpose of the Act.”

36.  Lord Browne-Wilkinson also stated in J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221 at 233 to 234 that:

“… there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (“factual possession”); (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). What is crucial is to understand that, without the requisite intention, in law there can be no possession. … there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary.”

37.  Mr Ho and his family members (including the plaintiff) had been occupying the Property since about 1 October 1968 save for certain periods of time when none of Mr Ho’s family member was in occupation of the Property, i.e. from October 2001 to November 2002 and from February 2012 to present.  During these periods, Mr Ho or the plaintiff or other family members of Mr Ho kept the keys of the Property.  Are they in factual possession of the Property during these periods?  Slade J in Powell v McFarlane and Anor stated at 470 to 471 that:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

38.  I accept that residing in the Property or keeping the keys of the Property which is an apartment in the Building, constitutes sufficient degree of exclusive physical control of the Property to satisfy the requirement of factual possession.  This is what an occupying owner of an apartment might have been expected to deal with such property.

39.  To succeed in this claim, the plaintiff has to prove the necessary intention for adverse possession i.e. the animus possidendi. Slade J stated in Powell v McFarlane and Anor at 471 to 472 that:

“What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of law will allow.”

40.  As stated by Litton PJ in Wong Tak Yue v Kung Kwok Wai & Anor at 251:

“The law is clear.  The owner of the land with the paper title is deemed in possession of the land.  If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land.  Only in this way can he establish “adverse possession” in terms of s.13(1) of the Limitation Ordinance (Cap. 347).”

41.  Mr Cheng submitted that the very fact that Mr Ho and his family continued to occupy the Property even after the supposed determination of the tenancy showed that Mr Ho and subsequently the plaintiff intended to, and made it clear to the world that they intended to, exclude the paper title owner.

42.  Mr Chengfurther submitted that the facts that Mr Ho and his family had been paying the utilities charges and rates of the Property as well as expenditure and repairs for common area of the Building during the period of their possession of the Property showed that they had the requisite intention for adverse possession of the Property.

43.  For the purpose of the Limitation Ordinance, on the determination of the periodical tenancy, the possession held by the tenant moves from being a possession with the landlord’s consent to being possession held without his consent, and thus for limitation purpose adverse.

44.  Russell LJ stated in Hayward v Chaloner at 122 to 123 that:

“I have no doubt that for this purpose the possession of a tenant is to be considered adverse once the period covered by the last payment of rent has expired so that section 10(1) [which is equivalent to section 13(1) of the Ordinance] does not bear further upon section 9(2) [which is equivalent to section 12(2) of the Ordinance]. Nor do I doubt the applicability of section 9(2) to the present case just because the freeholders were content that the rector should not pay his rent and did not bother to ask for it for all those years. In Moses v. Lovegrove, in this court it was assumed on all hands that when section 9 apparently operates, adverse possession starts: see especially Lord Evershed, and Romer L.J. The principle clearly accepted was that once the period covered by the last payment of rent expired, the tenant ceased to be regarded by the Limitation Acts as the tenant. This case was not cited to the county court judge. A similar assumption was made in Nicholson v. England, under the then existing principles which section 10(1) was designed to embody.”

45.  In Williams v Jones & Anor [2002] EWCA Civ 1097 (10 July 2002) The English Court of Appeal was dealing with a claim for possessory title over a piece of grazing land made by a holding over tenant (Mr Williams) who was a sheep farmer and kept his sheep upon the land.  Buxton LJ stated in paragraphs 21 and 22 of the judgment that:

“21. Mr Cooper for the appellant [the paper title owner] was in my judgement wrong in his argument that on the determination of the tenancy the matter ought to be looked at afresh, by straightforward application of the approach in Powell v McFarlane, without regard to the fact that the tenant was a tenant holding over. Such an approach would be plainly inconsistent with what this court said in Haywood v Chaloner. I consider, therefore, that Mr Cooper’s predecessor in representing the appellant was in fact correct when he said this (paragraph 14 of his first skeleton argument):

“The true distinction between a ‘trespasser case’ and a ‘former tenant case’ is that in the former, animus possidendi is required in order to establish that the paper owner has been dispossessed.  That is not necessary in a ‘former tenant’ case, because as the freeholder has permitted the tenant into possession, he will normally continue in possession, just as he did before the payment of rent stopped.”

22.   Mr. Cooper specifically disclaimed that passage, as indeed he had to do.  In my respectful judgement it, at least in the second sentence, was correct.”

46.  Mr Cheng drew my attention to a letter dated 6 December 1992 written by Mr Ho to the Small Claims Tribunal in relation to a claim for repair contributions from the Mutual Aid Committee of the Building (多寶樓互助委員會).  In the said letter, Mr Ho said that he was unable to contact the owner of the Property and did not wish to pay those contributions for the owner of the Property.

47.  The plaintiff explained in her 3^rd Affirmation that Mr Ho refused to pay the repair contributions not because he did not consider himself as owner-occupier of the Property but because the Mutual Aid Committee of the Building did not agree to issue receipt for the payment in the name of Mr Ho but insisted to issue receipt in the name of the Deceased.

48.  Mr Cheng submitted that Mr Ho acted in accordance with an intention to possess the Property since he was unwilling to pay expenses of the Property on behalf of the paper title owner.  He further submitted that in the said letter, Mr Ho merely reiterated his unwillingness to pay on behalf of the Deceased.  This should not be interpreted as inconsistent with Mr Ho’s intention to possess.

49.  The parts of Mr Ho’s letter concerning us read as follows:

“按本人何光，經於九一年九月一日，搬往屯門〔屯門美樂花園十六樓第八座E〕居住，即於同日遷離海康上址。且當時年老多病，甚少行動，不便隨時應傳到案。另方面，曾遍訪已故業主徐好之承繼人，終無從知其踪跡，倘貿然代為垫繳上項工程費，又恐了無着落。”

50.  According to the evidence adduced, as at December 1992, the Property was occupied by Mr Ho’s wife and their daughter, Ho Yuet Chun.  There was nothing to suggest that they were not occupying the Property with the permission of Mr Ho.  Nothing in the said letter suggested that Mr Ho had given up his possession of the Property.

51.  As pointed out by Buxton LJ in Williams v James & Anor in paragraph 20 of the judgment that there was the possibility that a tenant might have so feeble a connection with the land that on determination of the tenancy he could not be said to be in possession at all.  But in his Lordship’s view that would have to be an extreme case.  His Lordship referred to an example of a man who had gone off to Australia leaving the front door of the demised premises open. Such extreme case did not arise here.

52.  I accept that Mr Ho’s said letter is not inconsistent with Mr Ho’s possession of the Property and does not negative his adverse possession as a former tenant.

53.  Mr Cheng further referred me to various correspondences between the Inland Revenue Department (the “IRD”) and Mr Ho in 1997.

54.  In these correspondences, the IRD chased the estate of the Deceased for payment of property tax.  Mr Ho objected to the amount of property tax charged by the IRD.

55.  In his letter dated 7 May 1997, Mr Ho described himself and his family member as “tenant”. Mr Ho also stated that the person who was responsible for the Property was CWM.  The plaintiff in her 3^rd Affirmation said that it was only an explanation as to why Mr Ho and his family did not received any letters of administration or will of the Deceased and why the objection to property tax was made late.  Mr Cheng submitted that they did not equate to an acknowledgment that the Ho family were then still tenants of the Deceased or that CWM was then still the person responsible for the Property.

56.  Mr Cheng further referred me to a tax return dated 7 October 1997 filed by Mr Ho.  In the said tax return, Mr Ho claimed that he was the owner of the Property.  Mr Cheng submitted that by this tax return, Mr Ho represented to the IRD that he was the owner of the Property, and that the use of the Property was for self-residence.  The IRD accepted Mr Ho’s representation and did not levy any further property tax against the Property.

57.  Mr. Ho in his said letter stated that:

“In regard to the letter [sic] of administration or will from the late Cheo How, we as the tenant did not receive any documents. We are doing this because we are the occupant for thirty years and we feel a certain extent of obligation in terms of issues concerning this apartment. As a matter of fact to remind you that the person who was responsible for the premises is under the name of Chiu Wing Man and his long absence should not be blamed on our part.”

58.  In Williams v Jones & Anor Buxton LJ stated at paragraphs 14 and 32 of the judgment that:

“I give no weight, here or elsewhere, to the occasions upon which during his evidence the claimant, who was a small farmer in rural Wales, referred to himself as having a licence or permission to graze sheep on the land. The question was what the arrangement established in law, not how an unsophisticated layman sometimes talked about them.” (paragraph 14)

“As to animus, the judge seems to have thought that the claimant must show that he had the animus of an owner because he cites and appears to think relevant evidence that the claimant thought of himself as a tenant. But we know now that that understanding of the law, if it was that the judge held, was a heresy: see paragraphs 42 to 43 of the speeches in Pye, citing the judgement of Hoffman J (as he then was) in Bucks County Council v Moran.” (paragraph 32)

59.  The tenancy of Mr Ho for the Property had been determined on 30 April 1988 pursuant to section 12(2) of the Ordinance.  “The question was what the arrangement established in law, not how an unsophisticated layman sometimes talked about them.”

60.  The fact that Mr Ho thought himself as tenant is not inconsistent with his adverse possession of the Property as a tenant holding over.

61.  When Mr Ho signed the said tax return, he had been in possession of the Property for more than 9 years without paying any rent.  I accept Mr Cheng’s submission that this tax return supported the contention that Mr Ho by then had considered himself as the owner of the Property and intended to claim ownership for the Property to the exclusion of its paper title owner, i.e. the defendant.

62.  It is not necessary for a holding over tenant to have an intention to own the land in order to be in possession.  What is required is not an intention to own or even an intention to acquire ownership but an intention to possess.

63.  In the documents produced by the plaintiff, there was a requisition form dated 24 August 2001 completed and returned by Ho Yuet Ho to the Rating and Valuation Department in respect of the Property.  In this requisition form, Ho Yuet Ho described herself as occupier instead of owner.  The plaintiff explained in her 3^rd Affirmation that this was because the Deceased was still the registered owner of the Property in the records of the Land Registry and her family had not yet obtained a court order to declare themselves the owners of the Property.

64.  It is noted that in the said requisition form, Ho Yurt Ho stated that the Property was wholly let.

65.  Mr Cheng submitted that the answer provided by Ho Yuet Ho on 24 August 2001 in the requisition form would not affect the adverse possession of Mr Ho who did not pass away until November 2001.

66.  Mr Cheng said that in the requisition formHo Yuet Hoexpressly stated that there was no lease or tenancy agreement and that no rent was payable.  He submitted that this support the contention that Mr Ho and his family treated themselves as owner-occupier of the Property.

67.  As Mr Hohad been in adverse possession of the Property since 1 May 1988 and had considered himself as the owner of the Property since 7 October 1997 when he filed his aforesaid tax return and there was no evidence showing that Mr Ho had changed his perception of his right in occupying the Property, I accept Mr Cheng’s submission that the answer of Ho Yuet Ho to the questions in the said requisition form would not affect Mr. Ho’s adverse possession.

68.  The evidence before the court shows that the plaintiff was living in the Property for the following periods:

(1) from October 1968 to August 1991;

(2) from August 2001 to October 2001; and

(3) from November 2002 to February 2012.

69.  Mr Cheng submitted that the plaintiff as adverse possessor might add her period of adverse possession to her predecessor (i.e. Mr Ho and other members of Mr Ho’s family) and the element of factual possession should be satisfied.

70.  As the Property has been under adverse possession of Mr Ho and his family members (including the plaintiff) since 1 May 1988, they would have been in adverse possession of the Property for more than 24 years when the originating summons herein was issued.  Although the adverse possession was through different people, the plaintiff would still be able to claim adverse possession through her late father and her other family members to fulfill the limitation period stipulated in the Ordinance.  It was stated by Kay LJ in Willis v Earl Howe [1893] 2 Ch 545 at 553 that “a continuous adverse possession for the statutory period, though by a succession of persons not claiming under one another, does in my opinion, bar the true owner”.

71.  Before the death of Mr Ho on 12 November 2001, Mr Ho was being regarded as the owner of the Property by his family members.  In the premise, prior to Mr Ho’s death, when the plaintiff was occupying the Property, she came to occupy and use the Property under the permission or licence of Mr Ho.  She was a licensee of her late father.  The plaintiff came to be in factual possession of the Property only in November 2002 when she moved back to live in the Property.  For the period between Mr Ho’s death and the plaintiff’s resuming occupation of the Property, the Property was under possession and control of Mr Ho’s other family members.  As aforesaid, this is not fatal to the plaintiff’s claim if she can prove a continuous adverse possession for 20 years or more, albeit by a succession of persons not claiming under one another.

72.  I accept that Mr Ho, his family and the plaintiff had been in occupation or physical control (by keeping the keys of the Property) with animus possidendi, and accordingly in adverse possession, of the Property since 1 May 1988, i.e. before 1 July 1991.  The plaintiff claiming through Mr Ho and her other family members has established her claim for adverse possession of the Property for more than 20 years.

73.  The period prescribed in section 7(2) of the Ordinance has expired by the time these proceedings were commenced.  The title of the defendant, being the paper title owner, to the Property has been extinguished pursuant to section 17 of the Ordinance and the plaintiff is entitled to the declarations sought.

74.  I grant the plaintiff’s application and make an order in terms of paragraphs 1 to 3 of the originating summons.

75.  As the defendant did not appear to resist the plaintiff’s application, I make no order as to costs for these proceedings.