Adverse possession: limitation period; abandonment of possession?

In Law Bing Kee v Person(s) in occupation of RP ([2013] HKEC 405, CFI) P was the registered owner of the disputed land (part of a larger portion owned by him). D’s predecessor as owner of neighbouring land had, in 1954, fenced off the disputed land and included it within the area of the farming activity carried on on the neighbouring land. A temporary structure was placed on the land by the predecessor in the 1980s. The fence fell into disrepair in the 1980s and the land ceased to be put to specific use. The predecessors did, however, rent out the temporary structure. Significantly, P’s title was the subject of a New Grant in 1985 so the limitation period could only start running then. P sought possession. D’s counterclaim relied on adverse possession of the disputed land.

The court considered section 38A of the Limitation Ordinance. The twenty year limitation period had not been completed by 1 July 1991. The time period remained twenty years and this carried on running after 1 July 1991: ‘[o]nly in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.’ ([36] per Recorder Ambrose Ho SC).

The fencing was an unequivocal assertion of possession ([40]).

The winding down of the use in the 1980s did not amount to an abandonment of possession: ‘what is required to establish possession is the taking of possession, and not continuous use.’ ([42]) P’s occasional presence to trim the trees did not amount to a taking back of possession ([43]).

D’s counterclaim succeeded.

Advertisements

6 Responses to “Adverse possession: limitation period; abandonment of possession?”

  1. YUE Says:

    I have a real case. My father has a piece of land in the new Territories rented to a tenant since the 70’s, however, as most of the family memebrs migrated overseas in January 1991, no one took care of the tenancy nor collected rent from the tenant. Recently, we notice that the land was fenced off by the occupier, with a structure errected and farming taking place.

    In the anticipation of claiming adverse possession by the tenant/occupier, another family member intends to buy the land from my father, with a view to change the land title and start exercising the ownership and stewerdship of the land, against the adverse possession by the occupier.

    My question is, will such move, i.e. change of rightful owner help (i) termination of the period barring against my father’s ownership; or (ii) trigger recounting of the such period due to change of owner?

    Thank you for response and advice!

    • Michael Lower Says:

      If the occupier has been in adverse possession for 20 years these things will not help. While the occupier was there as tenant he was not in adverse possession. I’d advise you to contact a solicitor immediately with a view to establishing the facts and, if possible, recovering possession from the tenant. This could be very urgent so it is better not to delay.

  2. Greg Says:

    Recently, there is a case that an occupier successfully claim adverse possession on a government land in Ar Kung Ngam, Shaukiwan.

    My question is, is that a possessory title? and what is the nature of a possessory title?
    http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=86097&currpage=T

    Thanks!

    • Michael Lower Says:

      A person who successfully relies on adverse possession claims a possessory title (that is one where the claim to ownership rests on possession rather than on title deeds).

      • Greg Says:

        thanks for your reply!!
        Is that mean the ownership of that land become freehold like the saint john cathedral?

      • Michael Lower Says:

        That is an interesting question. I don’t know of any authority in Hong Kong on this though in England that is the result. It is not any kind of lease since it does not arise out of an agreement.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: