Adverse possession: the owner of the paper title gets the benefit of the doubt

In an adverse possession claim, the Court will be ready to infer from the evidence that the owner of the paper title is in possession. The onus is on the squatter to prove that he was in possession.

Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd ([2009] HKEC 343, CA) concerned land that formed part of a larger estate owned by the Cheung family. They had allowed the plaintiffs to use part of the land in conjunction with a Taoist temple that formed part of the estate. The plaintiffs later claimed to have acquired title to the disputed land through adverse possession. Their claims largely failed. The Court of Appeal found that the Cheung family retained control of the land. They had keys to parts of it and allowed others to use it. They themselves walked across the disputed land to get to the Koon. The Court of Appeal concluded that they did so because they owned the land and were exercising their rights of possession. They were not there as licensees of the Koon or as members of the general public. The Koon had failed to show that they had taken over possession from the owners of the paper title.

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