Adverse possession: relatively trivial acts on land can mean that there is neither possession nor intention to possess

Wai Wah Traders Ltd v Wong Yim ([2011] HKEC 1624) concerned land in Yuen Long. The defendants (D) claim to have used it since the 1960s. Until some time around 1990, the use was agricultural. After that D granted an oral lease for non-agricultural use. To succeed, D needed to show a 20 year period of adverse possession that began before the non-agricultural use started. D failed. The only acts of possession during the time when the land was being put to agricultural use were not sufficient:

‘I do not accept that the mere picking of lychee fruit from trees on the Land, or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the Land. It is mere trespass, at most persistent trespass, and unauthorized destruction and appropriation of property.’ (per Deputy Judge Mimmie Chan at para. 51).

There was nothing to show that D had taken open, single and effective exclusive control of the land. The owners had visited the site without noticing the presence of any squatters. In reaching this conclusion, the court had regard to the nature of the land, its area and size, its location and surroundings. The relatively trivial nature of the acts relied on also undermined the attempt to show the necessary intention to possess (paras. 62 – 66).


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