Estate encroaching into neighbouring estate

Wah Fung (IO) v Morengo Court (IO) ([2021] HKCFI 3400) was an adverse possession claim by the incorporated owners of one estate (Wah Fung) against the incorporated owners of a neighbouring estate (Morengo). Counsel for Morengo suggested that the outcome of the case is likely to have implications for other neighbouring estates ‘in densely packed Hong Kong’ ([5]).

Wah Fung claimed that it had installed a number of ‘encroaching structures’ on the Morengo estate and that there was a long history of Wah Fung owners making use of these structures. The alleged possession began in 1986 so the limitation period was 20 years.

Recorder Chan SC outlined the essential elements of adverse possession and concluded that Wah Fung had failed to establish either that it had installed the encroaching structures or that Wah Fung owners enjoyed exclusive access to them or alone were able to make use of them. The adverse possession claim failed.

The judgment is perhaps notable in emphasizing (relying on Hong Kong authorities) the need for compelling evidence to establish the elements of adverse possession given its ‘draconian effects’.

The case provides a pointer as to the type and quality of evidence that might be needed in similar cases.

Even if the evidence will not support a claim to have enjoyed exclusive possession, there is the possibility of a claim to some other right such as an easement or a licence (possibly irrevocable) based on proprietary estoppel, the doctrine of lost modern grant or an actual implied licence.

Michael Lower

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