Mistaken belief that one is the owner or tenant is not fatal to an adverse possession claim

In Cheung Kwong Yuen v Sun Hui Fang ([2016] 1 HKLRD 464, CA) C was the registered owner of one floor of a property and of the roof above it. S lived in a room on the roof. C had applied for an order for vacant possession of the room despite S’s claim to have extinguished C’s title by adverse possession. S claimed that her brother had bought the flat in 1992. She relied on an informal and unregistered document purporting to transfer title to him. The Lands Tribunal ordered S to leave the property: it held that adverse possession was not available to one who claimed to be a tenant or purchaser of the property. The Court of Appeal (Kwan JA giving the Court’s reasons) pointed out that this was a mistake as to the law and ordered the case to be retried in the District Court. ‘There is no rule of law that [factual possession and intention to possess] cannot be established for a person who mistakenly believes that he has good title or that he is a lawful tenant and does not realise he is trespassing on another’s land.’ ([11]).

Michael Lower

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4 Responses to “Mistaken belief that one is the owner or tenant is not fatal to an adverse possession claim”

  1. Matt Says:

    How can the parties afford the legal costs and court fees associated with bringing the case to high court? The costs can very much exceed the property that they are disputing over. Who pays for everything? And then to bring the case to appeal court afterwards. How much is the roof property worth to warrant the high price to pay.

    • Michael Lower Says:

      I can only think that it must involve anxiety on either side. Even if the squatter has legal aid, I guess there is always the risk of having to pay mesne profits.

      • Matt Says:

        The hearing for the Adverse Possession Case between the Retaining Wall owners and the developer is coming up March 9th in High Court. I can’t wait to see what the result is. I hear some talk about this case in the media. In your experience how long do these cases usually last? This one has been going on for over 3 years.

      • Michael Lower Says:

        Many thanks for this update Matt. Never having been a litigator I can’t shed any light on the average length of cases I’m afraid. It’ll be interesting to see what happens.

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