Adverse possession: shared possession not enough

Lee Theatre Realty Ltd v Tong Wah Jor ([2013] HKEC 646, CA) was an adverse possession claim relating to a lane on land owned by L. T had built structures on the lane (indeed had both brought up a large family and run a business there). This occupation had begun in 1961. The evidence showed, however, that the lane remained passable and was in use by the public. T’s main adverse possession defence failed on the basis that there had not, therefore, been exclusive possession but only shared possession.

Cheung J.A. said:

‘As Powell pointed out whether or not acts of possession done on parts of an area would establish title to the whole area is a matter of degree. In the present case if pedestrians could use and actually used the Lane for access throughout the day, then this is certainly material upon which the Judge could find that the defendants had not exclusive possession to the whole area that they had claimed adverse possession.’ ([28])

The defendants’ alternative claim to a much smaller portion of the lane did succeed. As regards the alternative claim, Cheung JA said:

‘In my view the defendants had established both the factual possession and the intention to possess. The boarding up of the two stalls at night must be the strongest indication of the intention to exclusively possess those parts. During the day, in order to carry out business at the stalls, the boards had to be dismantled. But this does not mean that the defendants did not have exclusive possession of the area covered by these two stalls.’ ([36])

Michael Lower

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