Adverse possession and Tso land

In Leung Kuen Fai v Tang Kwong Yu ([2002] 2 HKLRD 705, CFI) L claimed that he (and his father before him) had been in possession of land owned by the defendant Tso. The periods of adverse possession taken together stretched back to 1923.

The court held the relevant law for the period from 1923 until the commencement of the Limitation Ordinance in 1865 was the Real Property Limitation Act 1833. The members of a Tso each have their own independent life interest in the Tso land which they do not claim through any other person. They have a right to possession for the purposes of the Limitation Ordinance and the equitable interest survives any effect that the law of limitations might have on the legal title. In this case, there had never been a time when there was not a member whose right to possession had not been defeated as a result of the law of limitations.

It was possible that the legal title of the managers had been defeated as a result of 20 years’ adverse possession commencing in 1923 since the Real Property Limitation Act 1833 did not have a provision equivalent to section 10(2) of the Limitation Ordinance.  At the date of the action there were three members of the Tso whose right to possession had not been defeated by L’s possession and who could therefore bring proceedings ([73]).

The Limitation Ordinance applies to Tso land as to any other land in Hong Kong notwithstanding section 13 of the New Territories Ordinance ([72]).

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