Willingness to pay rent is fatal to adverse possession

In Wong Tak Yue v Kung Kwok Wai ([1998] 1 HKLRD 241, CFA) the defendant had been the tenant of land in the Yuen Long District. The lease had been for a term of seven years expiring in May 1963.  The defendant remained on the land after that time. Rent was neither demanded nor paid. In the course of the proceedings, however, the defendant had stated that had he been asked for rent he would have paid it. It was held that this showed the lack of an intention to possess and so was fatal to an adverse possession claim:

The fourteenth defendant’s intention to pay rent if the owners had requested payment demonstrated that he was not intending to exclude the owner with the paper title but showed that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not ‘as of wrong’ but was ‘as of right’. (per Li CJ at 250).

3 Responses to “Willingness to pay rent is fatal to adverse possession”

  1. ZCT Says:

    Would you say that this is inconsistent with Pye v Graham?

    • Michael Lower Says:

      I think the English approach is to say that it is enough to say that, within the law, you will do whatever you reasonably can to retain possession. So I think there is a different approach here when compared to that taken in England.

    • Michael Lower Says:

      And see paragraph 46 in Pye where the irrelevance of an admission that you would pay rent if asked is spelled out.

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