Adverse Possession: Wu Yim Chung v Lo Wai Ching

Background

In Wu Yim Chung v Lo Wai Ching ([2022] HKCA 100) Wu Yim Chung (‘the plaintiff’) argued that he had defeated the defendants’ title to land in Sai Kung through the doctrine of adverse possession.

The plaintiff was the original owner of the land. He sold it to the defendants’ predecessors in title but retained possession under the terms of two successive leases. The plaintiff remained in possession when the second of these leases came to an end on 14 October 1993.

In October 2013, the defendants’ solicitors wrote to the plaintiff in November 2013 complaining that the plaintiff was trespassing on the land and continuing to use it for the storage of materials. In the same month, the plaintiff began proceedings seeking a declaration that the defendants’ title was defeated by adverse possession.

Factual possession

The following facts, taken together, persuaded the first instance judge that the plaintiff was not in possession of the land for the full limitation period and that the plaintiff’s claim was defeated:

  • There was an entrance on the southern boundary giving access to a driveway through the land which served not only the disputed land but also other land serving third parties;
  • Unknown third parties simply abandoned scrap vehicles on the land;
  • The defendants’ predecessor in title used containers to block the southern entrance (thus interrupting any possession that the plaintiff might have enjoyed before then);
  • The defendants and their surveyors were able to access the land easily and without permission when they were carrying out pre-purchase inspections and investigations on the land (though this might have occurred after the end of the limitation period and so might not be relevant);
  • The plaintiff’s alleged possession was not apparent to the plaintiffs when they carried out their pre-purchase inspection. ([11] – [15]).

Intention to possess

Giving the judgment of the Court of Appeal, Hon Chow JA pointed to the statement of the relevant principles concerning intention to possess in Tsang Hu (also known as FU) Keung v Chu Jim Mi Jimmy ([2017] 3 HKC 527).

Intention to possess:

‘involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with a paper title if he be not the possessor, so far as is reasonably practicable and so far as the processes of the law will allow’ (Powell v McFarlane at 471 – 2 and Wong Tak Yue v Kung Kwok Wai (No 2) (1997 – 98) 1 HKCFAR 55 at 68 (Li CJ)).

Where a squatter can establish possession then intention to possess will also normally have been demonstrated. Additional evidence of intention may be needed where the acts said to demonstrate possession are open to more than one interpretation (JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [76] (Lord Hutton) and Powell v McFarlane (1979) 38 P & CR 452 at 472 (Slade J)).

The first instance judge found that there was no barrier at the entrance on the southern boundary. This lack of control of access to the site was obviously a key issue, both as regards possession and intention to possess:

‘Bearing in mind the nature and use of the Suit Land (an open ground for storage of construction materials and vehicles) and its location (in the New Territories) an occupying owner would normally be expected to control access, or secure entrance, to the Suit Land. A failure to do so would naturally attract unauthorized parking or storage, or other unauthorized uses, such as a dumping ground for construction waste or unwanted scrap vehicles.’ ([29]).

The significance of the fact that the plaintiff was previously the registered owner and tenant in occupation of the land

The plaintiff argued that the fact that he was undoubtedly in possession, as owner and then as tenant, was significant. There was no change in the nature of the occupation after the end of the second lease. Logically, the plaintiff remained in possession as before ([33]).

The Court of Appeal said that this may be relevant in cases where the question was whether a formal owner was excluded. It was irrelevant where, as here, the plaintiff had not ‘shown the requisite intention to possess vis-à-vis the world at large (other than the owner)’ (at [37]).

Michael Lower

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One Response to “Adverse Possession: Wu Yim Chung v Lo Wai Ching”

  1. ‘Adverse Possession: Wu Yim Chung v Lo Wai Ching’ | Private Law Theory - Obligations, property, legal theory Says:

    […] “In Wu Yim Chung v Lo Wai Ching ([2022] HKCA 100) Wu Yim Chung (‘the plaintiff’) argued that he had defeated the defendants’ title to land in Sai Kung through the doctrine of adverse possession. The plaintiff was the original owner of the land. He sold it to the defendants’ predecessors in title but retained possession under the terms of two successive leases. The plaintiff remained in possession when the second of these leases came to an end on 14 October 1993 …” (more) […]

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