Weekly Review: 17th – 21st December

Adverse possession: occupation by true owner

A period of adverse possession is interrupted if, for example, the rightful owner has re-taken possession. Whether the rightful owner has taken possession is a question of fact in each case. Simply entering the property does not necessarily amount to a resumption of possession by the rightful owner (Bligh v Martin).

Adverse possession: Land Registration Act 2002 (England): reasonable belief of person in adverse possession

Section 98 of and schedule 6 to the Land Registration Act 2002 require a person relying on adverse possession to have a reasonable belief  that the property in question belonged to him. It is a question of looking at the actual reasonableness of the belief of the adverse possessor in the circumstances. Knowledge of agents will not be imputed to him and the fact that a third party (perhaps the rightful owner) has claimed to be the rightful owner is not fatal to the reasonableness of the belief (IAM Group plc v Chowdrey and Zarb v Parry).

Co-owners: ouster: injunction

Where a co-owner alleges that he or she has been ousted from possession by the other(s), an injunction prohibiting the ouster pending trial will only be granted where the usual balance of convenience test is satisfied. The facts that the party seeking the injunction does not make any use of the right to possession and will not be prejudiced in any practical way by being kept out of possession will be relevant to the balancing act to be performed (Khan v Mansoori).

Trusts: Home Ownership Scheme: Alienation

The creation of a trust (or the arising of a trust by operation of law) is not an alienation for the purposes of sections 17B and 27A of the Housing Ordinance (Cheuk Shu Yin v Yip So Wan).


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