Adverse possession on behalf of a tso

A Tso is capable of being in adverse possession.

In Chow Tin Sang v Citehero International Ltd ([2012] HKEC 611) both the plaintiff and the defendant had been registered as having title to a plot of land near the centre of Sai Kung (‘the Land’). It was clear, however, that the defendant had the formal legal title and the plaintiff did not. The plaintiff based his claim, on behalf of a Tso, on adverse possession relying on the use that his family had made of the land since (to his personal knowledge) 1920. The court accepted that there had been the necessary factual possession. Enclosure was evidence here of the necessary intention to possess. Some of the boundaries were marked off by natural features and walls had been constructed along others. The fact that the walls could be surmounted readily easily was irrelevant:

‘the whole surroundings give me the impression that the Land is the backyard of the plaintiff’s house. That should also be the perception to a reasonable person’. (per Deputy Judge David Lok at [83]).

A Tso is capable of being an adverse possessor ([90]).

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7 Responses to “Adverse possession on behalf of a tso”

  1. thenakedlistener Says:

    Hope you won’t mind that I clarify things for the non-Hong Kong legal eagles here:

    A ‘tso’ (祖) is a family group owning property for the purpose of ancestral worship.

    The [Hong Kong] Court of First Instance held that tso is a form of Chinese customary landholding recognised under the New Territories Ordinance (Cap. 97) and per Leung Kuen Fai v. Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso [2002] 2 HKLRD 705.

  2. PC Says:

    Question:
    How this scenario:
    HK owner B bought the property in 1945 from original owner A.
    The owner signed a lease contract in 1950 with no expiration date.
    Owner B moved abroad with his whole family.
    Owner B passed away in 1980’s.

    In 1990’s, descendant of owner A tried to claim the property against
    the existing tenant at the time.
    Note this fraudulent since owner A does not hold the title but the court failed to find this fact.
    The court sided in favor of the tenant.

    Now (2012) Owner B descendants want to claim the property back.
    Do descendants of the (last legal title hold) owner B have a chance?

    The property is now under construction.

    Thanks.

    • Michael Lower Says:

      If B wants to make a challenge then he should consult a lawyer as quickly as possible.

      You say that the court ‘sided in favor of the tenant’. Does this mean that the tenant made a successful adverse possession claim? I can see how this might happen. You can’t have a lease with no expiration date. It could be construed as a licence or perhaps as a case where a periodic tenancy ended and then the tenant stayed in possession.

      In either case, after a while it might seem to the court that the possession was not as licensee or as tenant but as a squatter. If this persists for long enough then title (B’s title here) can be lost by adverse possession.

      If it was a licence then there is authority to say that the licence ends when the licensor dies (Ho Hang-Wan v Ma Ting-Cheung From then on the licensee would be in adverse possession.

    • thenakedlistener Says:

      I don’t see how owner A’s descendant could claim or exercise any kind of rights over the property because owner B had already ‘bought’ the property from original owner A in 1945. In a longwinded way, A sold to B and B bought from A.

      B had legal title of the property. And assuming the property had been passed on [correctly] by B to his descendants, then B descendants have legal title of the property. The original owner A (and his descendants) ceased to have any connection with the property after it was sold. Simple as that.

      Not to put too fine a point on things, B’s descendants have been lax in upkeeping their exercise of legal title of the property. Had they been otherwise, we wouldn’t be seeing A’s descendants trying to wangle their way back into their once-owned property with respect of the ‘tenant.’

      If I were B’ descendants, I would probably sue A’s descendants for fraud (or whatever’s similarly available in Hong Kong) and have whatever court judgment set aside with respect to the tenant as well.

      As to the tenancy and possible adverse possession, I concur with Prof. Lower’s view.

  3. PC Says:

    Yes. The fraudulent claim by descendant of original owner A was defeated. It is fraudulent because we know the original owner A had already sold off to owner B.
    Is there an additional number of years (added) to the required period of adverse possession if the owner B died and owner B’s descendants are not in the territories?
    Thanks.

    • Michael Lower Says:

      The law of adverse possession works the other way around. It looks at the state of mind of the squatter, not of the owner. It asks when the squatter first started to act as if the land was his own.

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