Adverse possession: intention to possess when squatter was a licensee

In Jin Yu Chia v Personal Representatives of Lee Ah Hsin ([2017] HKEC 1829) the plaintiff lived with the registered owner of a flat from 1991 onwards. The plaintiff claimed that the relationship was that of sworn mother and sworn daughter.

The registered owner died in 1994 but the plaintiff remained in possession and paid for all outgoings in respect of the flat. Many years later the representatives of the registered owners sought to evict the plaintiff. She claimed to have defeated the estate’s title by adverse possession.

The plaintiff was easily able to establish that she had been in possession of the flat for the requisite period but her claim failed. Wilson Chow J held that she lacked the necessary intention to possess.

In Wong Tak Yue v Kung Kwok Wai, the Court of Final Appeal held that a squatter who acknowledged that they would have paid rent had it been demanded lacked the necessary intention to possess. It seems, then, that even a purely intra-mental acceptance that there is someone with a title superior to the squatter means that, in Hong Kong, there is no intention to possess. It would not be enough to be prepared to use the processes of the law to make the owner prove his title.

Thus, where a squatter’s possession began under the terms of a lease or licence but continued when that arrangement ended, the squatter has also to show an accompanying change in mindset. The squatter must establish that they had come to believe that there was no one with a superior title (or at least not with a superior title that they would acknowledge in any circumstances). This will be a very difficult thing to prove.

Michael Lower



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