Inappropriate to register successful adverse possession claimant as owner of property

In Lam Sai Man v Minloy Limited ([2022] HKCA 37) Mr Lam successfully established that he had been in adverse possession of farmland on Lantau since the late 1950s and that the formal owner’s title was extinguished by 1979. The Court of Appeal upheld the Court of First Instance judgment to this effect.

The Court of First Instance made a declaration that Mr Lam was entitled to be registered as owner of the land. The Court of Appeal decided that this was inappropriate. Adverse possession does not give rise to a statutory conveyance of the extinguished title. The Land Register is a register of instruments, not of title ([36]).

It is, of course, appropriate and important to register the judgment in Mr. Lam’s favour.

The judgment also dealt with other issues:

  1. In 1993 Mr Lam gave a written acknowledgement of the formal owner’s title of part of the land (‘the 1993 acknowledgement’). This did not make any difference since the formal title had long since been extinguished ([14]);
  2. Mr. Lam had proved that he had taken control of the whole farm and it was not necessary to show that he had thereafter actively farmed every part of it. There was no evidence that anyone else subsequently asserted control over any part of the land ([24]).

The formal owner argued that the 1993 acknowledgement cast doubt on Mr. Lam’s earlier animus possidendi. This was a new point that had not been argued at first instance. Since it was fact sensitive, it was too late to raise the question on appeal ([33]).

The 1993 acknowledgement recorded the fact that the parties were negotiating a possible lease of part of the land. Could this have been construed as the implied creation of a licence to Mr. Lam? Could a licence granted to a squatter by an already defeated formal owner be seen as the start of a period of adverse possession by the formal owner as against the successful squatter?

Michael Lower

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