Adverse possession: where part of the limitation period is taken up by squatter’s declaration proceedings

In Tang Wai Tung v Tang Wai Lun ([2016] 3 HKLRD 96, CA) TWL claimed to have acquired title to Tso lands through adverse possession, having continued a period of adverse possession begin by his father, TPK. This may have been possible because there was a period of time during which there were no new members whose claim would not be defeated by a successful adverse possession claim. The claim failed because TWL could not establish factual possession. The Court of Appeal (Yuen JA giving the judgment) also considered an interesting issue concerning the effect of litigation commenced during the limitation period. Here, TPK began proceedings against the Tso in 1998 and these were taken over by TWL after TPK’s death. Amongst other things, TPK sought a declaration that the Tsos title to the land had been defeated by adverse possession. In its defence, the Tso denied this but it did not counterclaim for possession. The Court of Appeal considered that the 1998 proceedings (eventually struck out in 2011) stopped the limitation period running despite the absence of an express claim to possession by the Tso.  The court had to look at the substance of the issue and the claim to possession was at the heart of the 1999 proceedings ([49]). Further, TPK’s conduct in bringing the proceedings could be taken into account. Bringing the action, and then failing to progress it, may well have been motivated by a desire to prevent the Tso from bringing its own action to recover possession ([50]).

TWL also claimed that the disputed land had been conveyed to his grandfather. The court had serious concerns about the documents produced in support of this claim. In any event, there was no evidence that consent to a sale had been obtained  pursuant to section 15 of the New Territories Ordinance. This omission would invalidate the transaction in any event (Light Ocean Investments Ltd v Emway Development Ltd [1994] 3 HKC 31).

Michael Lower

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