CHAN MIU CHEE LIBBY v. THE ESTATE OF YEE CHUNG YE, THE DECEASED

HCMP 3108/2016

[2020] HKCFI 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3108 OF 2016

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DECISION

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1.  This is the Plaintiff claim by Originating Summons dated 9 November 2016 (since amended once, the “Amended OS”) for possessory title of the property at Third Floor (Rear Portion on 3^rd Floor, Nos 21 & 21A Ka Shin Street), No 21A Ka Shin Street, Kowloon, Hong Kong (the “Property”).

The registered owners

2.  The Property is registered in the joint names of the Defendant and Yee Fong as joint tenants.

3.  Yee Fong pre‑deceased the Defendant in 1992.  By his right of survivorship, the Defendant became the sole owner of the Property.

4.  The Defendant passed away in the United States of America in about 1997.

Service of process

5.  There has been no application for grant of probate or administration of the Defendant’s estate. 

6.  On 12 April 2019, the Official Solicitor was appointed to represent the Defendant’s estate for the limited purpose of accepting service of the Amended OS.

7.  On 10 September 2019, Master Yu ordered (1) that the Plaintiff is at liberty to carry on the proceedings against the Defendant in the absence of any person representing the Defendant’s estate; and (2) substituted service of inter alia the Notice of Appointment to Hear the Amended OS (“Notice of Hearing”).

8.  Substituted service of the Notice of Hearing has subsequently been effected — see the affirmation of service of 11 March 2020 of Yuen Wing Gee Stella.

9.  No one has come forward seeking to appear for the Defendant’s estate.

10.  I am satisfied that service of the Amended OS and the Notice of Hearing have been validly effected.  I proceed with the hearing of the Amended OS.

The Plaintiff’s claim

11.  The Amended OS is supported by the Plaintiff’s affirmation of 10 August 2017.  Below is a summary of her case as set out therein.

12.  The Plaintiff’s late grandmother, Yee Fong and the Defendant were remote relatives.

13.  By an oral tenancy commencing in about 1974, the Defendant and Yee Fong leased the Property to the Plaintiff’s grandmother as the residence of the Plaintiff’s grandparents.

14.  The Plaintiff’s grandparents had been living in the Property since.

15.  Between 1975 and 1978, the Plaintiff (together with her parents and 2 brothers) lived in one room inside the Property.  They moved out in 1978 upon the birth of her youngest brother.

16.  The Plaintiff’s grandparents remained in the Property.  The Plaintiff’s parents brought the Plaintiff and her brothers back to visit them regularly.

17.  In about 1978, the Plaintiff’s grandparents started to sub‑let part of the Property to some sub‑tenants.

18.  The Plaintiff’s father was her grandparents’ only child.  He had been entrusted to handle all matters relating to the Property.

19.  In 1990, the Plaintiff’s father was diagnosed with cancer.  He gave the Plaintiff the set of keys he kept for the Property.  He asked her to look after her grandparents and to deal with all matters relating to the Property as he did in the past.

20.  Since about June 1990, the Plaintiff has been settling at her own expense all utility bills in respect of the Property.  She collected rent from the sub‑tenants.  She sometimes stayed overnight there to take care of her grandparents.

21.  Since about June 1990, the Plaintiff’s grandparents and father had ceased to pay any rent to the Defendant and Yee Fong in respect of the Property.  The plaintiff herself never did.

22.  Despite the non‑payment of rent, the Plaintiff has never heard from the Defendant or Yee Fong.  Nor has she ever received any complaint or demand from them.

23.  In March 1992, the Plaintiff’s father passed away. 

24.  In February 1997, the Plaintiff’s grandfather passed away.

25.  The Plaintiff says that after non‑payment of rent for so many years, she has treated the Property as her family’s property.  In about 2001, the water account was changed upon her application to her name.  She had been settling all water and sewage bills.

26.  She had at her expenses been effecting improvements to the Property.

27.  In October 2004, the Plaintiff’s grandmother passed away.

28.  In §25 of her affirmation, the Plaintiff says that:

“ Following the passing away of my late grandmother, I verily believed that I have succeeded the Property, which was our family property, from her. I served notice to terminate all the sub-tenancy agreements with the sub‑tenants of the Property. In or about November 2004, I gained vacant possession of the Property and I changed the lock to the wooden door to the Property as well as the lock of the letterbox downstairs. From then on, I was and am the only person who held the keys to the Property as well as the letterbox thereof.”

29.  The Plaintiff has since October 2004 continued to be in possession of the Property, and has incurred various expenses on the same.

The law

30.  A person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi): see eg Powell v McFarlane (1977) 38 P & CR 452 and Wong Tak Yue v Kung Kwok Wai David & Anor (No.2) (1997‑1998) 1 HKCFAR 55.

31.  In respect of the first element, the party seeking to establish adverse possession has to establish a sufficient degree of factual possession in the sense of physical control: Powell v McFarlane (1977) 38 P & CR 452 at 470‑471.

32.  In respect of the second element, and explained by Slade J Powell v McFarlane at 471‑472 (approved and applied by the Court of Final Appeal in Wong Tak Yue), the intention to possess requisite for adverse possession:

“ … involves the intention, in one’s own 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 process of the law will allow.”

33.  Until 1 July 1991 when s 7 of the Limitation Ordinance (Cap 347) was amended, the limitation period for an action to recover land was 20 years from the first accrual of the right of action.  Since the amendment, the limitation period has been 12 years.

34.  Section 12(2) of the Limitation Ordinance provides that:

“ 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.”

Application of the law

35.  The Plaintiff’s grandparents and the Plaintiff have been in continuous possession of the Property since about 1974.

36.  No rent has been paid since about 1990.

37.  The Plaintiff’s grandparents and the Plaintiff have been treating the Property as their own.  Locks have been installed.  Part of it had been sub‑let, and rents collected for themselves.  The physical possession has been certain, exclusive and unequivocal.  The intention to possess as defined is also clear, and in any event can be inferred from their acts of possession.

38.  Whether through joint possession since about 1990, or successive possession, or the Plaintiff’s own possession since about 2004, I am satisfied on the evidence that the Plaintiff’s claim for possessory title has been established.

Disposition

39.  I grant the Declarations in terms of §§1 and 2 of the Amended OS, that (1) the Defendant’s title to the Property (including for the avoidance of doubt the title and interest of Yee Fong the Defendant acquired by virtue of his right of survivorship upon the death of Yee Fong) has been extinguished under s 17 of the Limitation Ordinance, Cap 347, and (2) the Plaintiff has acquired a possessory title to the Property by virtue of her adverse possession of the Property. 

40.  I make no order as to costs.