LAND PERFECT LTD v. YAU CHUN CHEONG

DCCJ 4408/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4408 OF 2011

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D E C I S I O N

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1. The plaintiff applies for summary judgment against the defendant under an order 14 application.

2. The plaintiff purchased the land lots known as Lots Nos. 1583 to 1590 in Demarcation District No.10 in the village of Ng Tung Chai, Tai Po, New Territories, on 22 June 2007 (hereinafter referred to as the “premises”).  The defendant claims he has adversely possessed the premises since 1988 by cultivating on the land continuously to the present date. 

3. The plaintiff’s application is supported by two affirmations from Mr Leung Kam-ho Gilbert, a director of the plaintiff, and a Mr Li Kwok-wah Kenneth, an estate agent.  Mr Leung claimed he has knowledge of the land since the 1980s, and that the land, so far as he knew, was an undeveloped piece of waste land; that it was not until January 2008 that a signboard “華光花園” was erected at the premises with a phone number on the board, and that flowers and plants were cultivated at the premises. 

4. The defendant objects to the application claiming he has a good defence to the plaintiff’s claim.  His affirmation is supported by four other affirmations, ie his own affirmation and four other clansmen’s affirmations, one of whom is his own elder brother’s.  These deponents all resided at the village.  They supported the defendant’s claim that the defendant has been cultivating vegetables and fruits at the premises since 1988.  Both the plaintiff and the defendant produced their own surveyor’s report in support of their respective case.

5. The plaintiff’s counsel, Mr Wong, submitted that mere cultivation of the land from time to time is insufficient to prove adverse possession.  That there must be factual possession and animus possidendi.  He claimed the defendant has failed to show that.

6. The defendant disagreed.  Mr Chan, counsel for the defendant, submitted the defendant has shown sufficient evidence of factual possession and the intention to possess (i.e. animus possidendi).

7. Mr Chan relied on the authority of Megarry and Wade’s Law of Property, 2012 edition, where at paragraphs 35- 017 to 019, the authors set out the necessary criteria of the law on establishing an adverse possessory title.  An excerpt is as follow:

Paragraph 35 – 017

“(1)  Factual Possession.  “Possession is a legal concept which depends on the performance of overt acts”.  For a squatter to prove that he has factual possession he must show that:

(i)  he had an appropriate degree of physical control of the land;

(ii)  his possession was a single possession: there can be a single possession by several squatters jointly, but not severally;

(iii)his possession was exclusive: a squatter cannot be in possession at the same time as the true owner; and

(iv)he dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done.

Para 35 – 018:

“Whether the squatter has taken a sufficient degree of control is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed. “The type of conduct which indicates possession must vary with the type of land.” In the case of open land, absolute physical control is normally impracticable. There are obvious difficulties in establishing a squatter’s title to part of a swamp; but where marshy land is virtually useless except for shooting, shooting over it may amount to adverse possession. In many cases adverse possession cannot in the nature of things be continuous from day to day. “Enclosure is the strongest possible evidence of adverse possession, but is not indispensable”, nor is it necessarily conclusive. But where the adverse possessor performs clear acts of ownership, he does not have to show that they inconvenienced or otherwise affected the owner. ……

Both because exclusive control is essential to establish adverse possession and because of the presumption that the true owner remains in possession of the land, trivial acts will rarely suffice to establish adverse possession.  Once factual possession has been established, it will not be terminated merely because the true owner sends a letter to the squatter requiring him to vacate the premises.  Time will continue to run in favour of the squatter unless and until he vacates the premises or acknowledges the true owner’s title.”

8. On the intention to possess, animus possidendi, the authors have this to say at paragraph 35 – 019.

“Animus Possidendi

The squatter must have “an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title”. As regards that intention:

(i) It is an intention to possess and not an intention to own.

(ii) It is an intention to exclude the world in the squatter’s own name and on his own behalf.

(iii) It is an intention to possess and not an intention to dispossess. Accordingly, the animus can be sufficiently established even if both the true owner and the squatter mistakenly believe that the land belongs to the latter, or where a squatter did not realise that he was trespassing on another’s land.

(iv) It is an intention for the time being to possess the land. The intention does not have to be to exclude the owner with the paper title in all future circumstances. As regards the true owner, the intention can only be to exclude him “so far as is reasonably practical and so far as the processes of the law will allow”. Accordingly, it is not fatal to a squatter’s claim that he would have been willing to pay for his occupation had he been asked to do so by the true owner.

(v)  The intention to possess must be manifested clearly, so that it is apparent that the squatter was not merely a persistent trespasser, but was seeking to dispossess the true owner.  If the squatter’s acts are equivocal then he will not be treated as having the requisite animus possidendi.  A request to the true owner to exclude trespassers is inconsistent with an intention to possess.  However, an acknowledgement of the true owner’s title, although it will cause time to start to run afresh, will not necessarily be inconsistent with the squatter having the necessary intention to possess.”

9. Mr Wong relied on a number of authorities, including the Hong Kong CFA decision and English Court of Appeal decisions.  In the Hong Kong CFA case of The Incorporated owners of San Po Kong Mansion  v Shine Empire Limited [2007] 10 HKCFAR 588, the Court of Final Appeal found the alleged acts of dispossession relied upon by the IOC did not constitute the necessary factual possession established by an appropriate degree of physical control or requisite intention to possess, i.e. an intention in one’s own name and one’s own behalf, to exclude the world at large, including the owner, and that reference must be a reference to Megarry and Wade’s Law  of property, paragraph 35.

10. In that case, the IOC had relied on the individual owner’s use of the roof of the building to install television antennas and to dry clothes occasionally.  The court found such acts by different individual owners to be insufficient acts of adverse possession by the IOC. 

11. Mr Chan relied on Megarry and Wade’s Law of Property, paragraph 35 – 018, where the authors said:

“Enclosure is the strongest possible evidence of adverse possession, but is not indispensable, nor is it necessarily conclusive”.

12. Mr Wong criticised the defendant’s acts of cultivating the premises for fruits and vegetables without fencing the premises to be insufficient acts of adverse possession.  Whether the defendant’s acts are sufficient to show factual possession of the period of over 12 years and whether he had the intention to possess the land, the necessary animus possidendi, are matters to be determined at the trial after examination of witnesses.  

13. It is for the trial judge, after hearing full evidence and cross examination of all witnesses, to decide if the defendant has successfully established a possessory title of the premises.   Animus possidendi can only be determined after considering all the facts and the conduct of the defendant with supporting evidence from witnesses.  It is premature to have the matter decided in a summary manner.   

14. I am satisfied the defendant has raised a triable issue in his defence.  The Summons is dismissed with leave to the defendant to file a defence in these proceedings.

(Discussion re costs)

15. Costs in the cause, with certificate for counsel.