Adverse possession: the significance of a failure to fence rural land

In Winpo Development Ltd v Wong Kar Fu ([2017] HKEC 1093) P sought an order for possession in respect of land occupied by D. D relied on adverse possession in his defence and counterclaim.

The claim concerned a large and remote area of land in the New Territories. D’s family had lived on and farmed the land since at least 1968.

The land was unfenced. Recorder Whitehead SC accepted that this fact tells strongly against D having had possession of the land ([64]). Here, however, the natural landscape formed clear barriers; fencing would have been superfluous and impractical ([65]).

D had shown the intention to possess. He and his family dealt with the land ‘as an occupying owner might have been expected to deal with it, and to the exclusion of the world at large, including the owner with the paper title’ ([69]).

D’s adverse possession defence succeeded.

Michael Lower

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