Archive for the ‘Acknowledgement’ Category

Resulting trusts and land transferred under an unlawful joint development agreement

August 1, 2014

In Tang Teng (or Ting) Hong (or Hon) v Cheung Tin Wah ([2014] HKEC 643, CFI) a Tso transferred property to a developer under the terms of a development agreement that provided for the return of the land to the Tso in the case of certain events of default. There was no intention, the court found, to make an outright transfer to the developer. This implies, presumably, that the transfer was simply part of the machinery for implementing the agreement. The developer had failed to apply for building licences as envisaged by the agreement. The Tso sought the return of the land to it relying not on the terms of the agreement but on the basis that the developer held the property on resulting trust for it (there being no intention that the developer should be the beneficial owner of the land).

The main question was whether the claim must fail since the agreement was tainted with illegality  in that its implementation necessarily involved the making of false declarations to the Government by tings ((ie a male indigenous villager of the New Territories entitled to benefit under the Small House Policy). The court found that the Tso could recover the property since it did not need to rely on the unlawful agreement (it merely supplied an explanation as to why the tso  had made the transfer to the developer) ([49]).

The assignment to the developer contained an acknowledgement of receipt of the purchase price (though it had not been paid). It was held that this did not prevent the resulting trust claim since this was collateral to the assignment and not an action on the assignment. The plaintiff was not estopped from bringing evidence to show that the consideration had not been paid ([44]).

Michael Lower

Adverse possession: tenant estopped from denying an acknowledgement given in a compromise after the limitation period had ended

January 8, 2013

In Colchester BC v Smith ([1992] Ch. 421, CA (Eng)) T had been in possession of land belonging to the Council for a period exceeding twelve years. To avoid being the subject of proceedings that the Council intended to instigate, T entered into a lease of the land that acknowledged the Council’s title and that he had no claim to the land by virtue of adverse possession. He then sought to claim that he had defeated the Council’s title and that the acknowledgement was ineffective since it had been given after the limitation period had expired (section 29(7) of England’s Limitation Act 1980 provides that an acknowledgement at this stage is ineffective). T failed. He was estopped from denying the acknowledgement since it had been given as part of a genuine compromise agreement.

Squatter’s letter offering to purchase land can be an acknowledgement of title

July 29, 2011

Section 23 of the Limitation Ordinance provides that time starts to run again if the squatter acknowledges the title of the formal owner. In Edginton v Clark ([1964] 1 Q.B. 367, CA (Eng)) a squatter wrote two letters to the owner’s agent offering to buy the relevant land. The English Court of Appeal stated that there is no general rule as to what constitutes an acknowledgement; each case turns on its own facts. It held that the two letters were clearly an acknowledgement and so time had started to run afresh.

Adverse possession: requirements of acknowledgement of superior title

June 9, 2011

Section 23 of the Limitation Ordinance provides that an acknowledgement of a superior title starts time running again for the purposes of adverse possession. Section 24 sets out the formalities to be observed: the acknowledgement must be in writing;  signed by the person making it (who may be an agent of the squatter); and be made to the person with the superior title or that person’s agent.

In Lambeth LBC v Archangel ((2001) 33 HLR 44, CA (Eng)) A had entered Lambeth’s property in 1985 and ran a charity there. Lambeth brought possession proceedings in 1999 and A relied on his adverse possession as a defence. In 1993, A had negotiated with Lambeth for the grant of a licence but no licence was ever granted. During the course of the negotiations A wrote to one of Lambeth’s employees giving details of the charity’s work and plans. This letter didn’t refer to the property nor to any negotiations about a licence. It was held that it was a sufficient acknowledgement. A admitted that the property referred to generically in the letter included the disputed property. Lambeth’s employee had sufficient authority to receive the acknowledgement. Although the charity was a separate legal entity, the letter was signed by A.