Archive for the ‘Death’ Category

Adverse possession: death of licensor terminates a licence

June 26, 2017

The facts of Hsieh Haw Shane Gary v Chang Ho Ying ([2017] HKEC 1246) illustrate that a licensor’s death terminates a licence to occupy land.

Madam Chang was registered as the owner of a flat (‘the flat’). She died intestate in 1966. Letters of Administration were granted to Mr. Chang, her husband, in 1967. He was solely beneficially entitled to the flat but the legal title was never assigned into his name.

Mr. Chang married Madam Lee in 1970. He died intestate in 1984. Madam Lee did not seek Letters of Administration de bonis non in respect of Madam Chang’s estate. Madam Lee took possession of the flat on her husband’s death and rented it out.

Madam Lee moved to Malaysia in 1998. She gave the keys to the flat to her son, Gary. Gary paid all of the expenses in respect of the flat and collected the rents from then on. Madam Lee died in 2002.

The question was whether Gary had acquired title by adverse possession by 2013 when the flat (and the whole building of which it formed part) was acquired by a developer pursuant to the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545).

Mr. Chang’s death in 1984 brought an end to any licence that he may have granted to Madam Lee. Gary began a new period of possession in his own name when he was given the keys and managed the property from 1998. He had therefore been in adverse possession for more than twelve years by 2013.

Gary had defeated Madam Chang’s title and he was entitled to the proceeds of sale of the flat.

Michael Lower

Death does not bring an end to obligation to repay loan; deliberate concealment can prevent time running for limitation purposes

March 7, 2013

In Lam Ching Sheung v P.R. of the Estate of Tam Shui ([2013] HKEC 294, CFI) L made a loan to TS and her husband (D2). This was not repaid and an oral agreement was entered into in 1999. L agreed to forebear from bringing legal proceedings in return for TS and D2’s agreement to pay interest to a third party and, in due course, to repay the principal. TS died in 2000. In 2001, D2 assured L that the interest payments to the third party were being made. L only discovered that this was not the case in November 2005. It was held that time did not start to run until November 2005 (rather than 1999) because of D2’s deliberate concealment of the true position (see section 26(1) of the Limitation Ordinance) ([56]).

The court also held that TS’s death did not end her liability under the oral agreement and that the claim could be brought against her estate (see Law Amendment and Reform (Consolidation) Ordinance, s.20) ([62]).