‘Adverse possession’ when licence terminates by operation of law?

When a person enters land as licensee and the licence is terminated by operation of law but without the licensee’s knowledge, the licensee can nevertheless have been in adverse possession and have had the necessary animus possidendi.

In Ho Hang-Wan v Ma Ting-Cheung ([1990] 1 HKLR 649, CA) H entered land as licensee in 1957. In 1964 the owner of the paper title died and this had the effect of bringing the licence to an end by operation of law. The licensee did not know of the death. In 1987 H claimed that she had acquired a good possessory title by reason of her adverse possession. The new owner of the paper title argued that since she did not know of the death she must still have believed that she was a licensee. Therefore she lacked the animus possidendi (intention to possess). The Court of Appeal rejected this. There was very clear evidence that H had taken possession (buildings, enclosure and running a business on the land). In the face of such clear ‘possession’ the need to show an intention to possess could easily be inferred. The behaviour of H could not be attributed to reliance on any licence.

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