Objective nature of the intention to possess: where the squatter believed itself to be the true owner

In Pang Yiu Chor v Wong Wai Leung ([2017] HKEC 1874) the Government mistakenly believed itself to be the owner of land in Fanling. In fact, the land belonged to the plaintiffs.

The Government granted permits to occupy the land to licensees in the early 1960s. These licences were taken over by later generations of the families of the original licensees.

The plaintiffs informed the Government of their ownership in 2000. The Government terminated the licences in 2003.

The question was whether the Government had defeated the plaintiff’s title by adverse possession. The plaintiffs contended that this was not the case; the Government’s belief that it was the owner of the paper title, they argued, meant that it had no intention to possess.

This argument failed. Anthony Chan J was able to point to a number of Hong Kong and English authorities showing that believing oneself to be the true owner does not prevent a squatter from having the intention to possess.

The intention to possess requirement demands an intention ‘to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows’. Further, ‘[e]vidence of subjective intent should be approached with caution. Intention is normally better assessed from the acts of the possessor in the light of the nature of the land and its use’ (Tsang Foo Keung v Chu Jim Mi Jimmy CACV 178 / 2015 at [22]).

That the Government had the necessary intention was clear from its intentional exercise of power over the land: ‘There can be little doubt that the Government had every intention to exclude any person who was on the land without its expressed or implied permission. This can only be consistent with the requisite animus possidendi ([49]).

The Court of Appeal said in Cheung Kwong Yuen v Sun Hai Fang ([2016] 1 HKLRD 464) that ‘ “adverse” in this context is a convenient label only, in recognition of the fact that the possession is adverse to the interests of the paper owner.’

The Government had defeated the plaintiffs’ title; it had been in possession of the land up to 2003 through its licensees.

That said, the defendants (the licensees) had no title to the land. Their possession was attributable to that of the Government.

Michael Lower

 

 

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