Weekly review: 7th – 11th May

Adverse possession: Chinese customary trusts: Tso

A Tso is capable of being in adverse possession (Chow Tin Sang v Citehero International Ltd).

Building Management Ordinance: Deed of Mutual Covenant: Incorporated Owners

Where owners of a unit covered by a DMC make a greater payment than was due of them they will be unable to recover the overpayment (because it amounts to an acquiescence) where it would be unconscionable for them to demand it of the recipient. Para. 4 of Schedule 7 to the Building Management Ordinance empowers the manager to set up a sinking fund and the incorporated owners are to decide on the amount required. This paragraph, however, does not deal with how the liability to contribute to the fund is to be divided between the individual owners (Young Kwok Siu v Fontana Gardens (IO)).

Common intention constructive trust: Post-acquisition formation or variation: ambulatory constructive trust

Compelling evidence is needed of a post-acquisition intention to create (or vary) a common intention constructive trust. If it is ambulatory then the share of each co-owner (and so the share available to the creditors of each) will vary over time in accordance with the relevant intention (Tong Ka Nin v Tam Chun Wah).

Proprietary estoppel

Where a mortgagor deceives the mortgagee into thinking that he has been granted a mortgage then the mortgagee may be able to invoke proprietary estoppel. Where the mortgagor disposes of the property to someone who is part of the fraudulent scheme then there has been no true transaction and so no ‘valuable consideration’ (Halifax plc v Curry Popeck ).

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