Owner claiming to have acquired a common part by adverse possession

In Man Hong Apartments (IO) v Kwong Yuk Ching ([2001] HKEC 470 (CA)) the owner of a ground floor shop built on the common area next to his shop. The incorporated owners sought the removal of the unauthorised structure on the basis that it amounted to a breach of the predecessor of section 34I(1) of the Building Management Ordinance (this prohibits the conversion of common parts to private use). Section 34I(2) provides that a breach of section 34I(1) is deemed to amount to a breach of the deed of mutual covenant.

At first instance, the defence of adverse possession succeeded. The Court of Appeal left open the interesting question as to whether it is possible in principle for an owner to succeed in an adverse possession claim. Reversing the decision of the Lands Tribunal it ordered the defendant to remove the unauthorised structure. The plaintiff’s claim was not for possession; rather it sought to enforce the restriction on converting common parts to private use. Even if (which was not decided) an adverse possession claim by an owner is possible, the squatter’s title would still be subject to the restriction.

Nor was delay in bringing the claim a bar to the plaintiff’s claim. Section 4(7) of the Limitation Ordinance specifically excludes actions for injunctions and claims for equitable relief from the limitation rules in section 4. The defendants could not successfully invoke the doctrine of laches.

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4 Responses to “Owner claiming to have acquired a common part by adverse possession”

  1. Max Says:

    Hi

    Can a link to the full judgment be provided?

    Thanks.

  2. Max Says:

    Hi

    Many thanks!

  3. Sam Says:

    Dear Professor Lower

    I am a long-time reader of your excellent blog.

    I wonder if I may pose a query here which has practical implications for the running of many owners corporations.

    Suppose a owner of a flat (through holding undivided shares) in an estate erects a wall to block off for his own use a certain portion of a service lane (which is commons parts under the DMC and BMO). This has lasted for well over 12 years.

    Is there a Hong Kong court procedure (say, action for declaration) which, in layman terms, allows an IO to cost-effectively obtain a court ruling as to whether adverse possession has taken place vis-a-vis the affected common parts.

    The procedure envisaged involves an IO taking unilateral action to seek clarity, as opposed to a contentious plaintiff-defendant court action.

    Thanks in advance for your attention and feedback.

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