Adverse possession: recent reminder of the core elements

In Kiuwide Co Ltd v Tseung Ding Man ([2014] HKEC 5) the plaintiff had been the registered owner of a detached house since 1986. It was later discovered that the defendant had the formal title to part of the garden and swimming pool that had been enjoyed with the property at last since 1986. The plaintiff claimed that it had extinguished the defendant’s title by adverse possession and the court agreed. The court granted a declaration that the defendant’s title had been extinguished and that the plaintiff had possessory title to the land.

The court reminded itself of the law as to the core concepts of possession ([24] referrring to Powell v McFarlane) and intention to possess ([25] referring to Wong Tak Yue v Kung Kwok Wai).

Deputy Judge Marlene Ng made these comments concerning the intention to possess:

‘First, although the squatter must intend to exercise exclusive control for his own benefit, he need not have a conscious intention to exclude the true owner. It is enough that the squatter intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allow”. Secondly, an intention to own the land or even an intention to acquire ownership is not required for establishing the animus possidendi. Thirdly, the animus possidendi can be established even if the squatter mistakenly believes himself to be the owner of the land.’ ([26]).

Michael Lower

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