Archive for the ‘Intention to possess’ Category

Adverse possession: intention to possess when squatter was a licensee

September 5, 2017

In Jin Yu Chia v Personal Representatives of Lee Ah Hsin ([2017] HKEC 1829) the plaintiff lived with the registered owner of a flat from 1991 onwards. The plaintiff claimed that the relationship was that of sworn mother and sworn daughter.

The registered owner died in 1994 but the plaintiff remained in possession and paid for all outgoings in respect of the flat. Many years later the representatives of the registered owners sought to evict the plaintiff. She claimed to have defeated the estate’s title by adverse possession.

The plaintiff was easily able to establish that she had been in possession of the flat for the requisite period but her claim failed. Wilson Chow J held that she lacked the necessary intention to possess.

In Wong Tak Yue v Kung Kwok Wai, the Court of Final Appeal held that a squatter who acknowledged that they would have paid rent had it been demanded lacked the necessary intention to possess. It seems, then, that even a purely intra-mental acceptance that there is someone with a title superior to the squatter means that, in Hong Kong, there is no intention to possess. It would not be enough to be prepared to use the processes of the law to make the owner prove his title.

Thus, where a squatter’s possession began under the terms of a lease or licence but continued when that arrangement ended, the squatter has also to show an accompanying change in mindset. The squatter must establish that they had come to believe that there was no one with a superior title (or at least not with a superior title that they would acknowledge in any circumstances). This will be a very difficult thing to prove.

Michael Lower

 

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Adverse possession: Paving land as evidence of possession

May 13, 2015

In Tsoi Ping Hung v Cheung Chow Lan ([2015] HKEC 701, CA) the defendants owned land on which they had built a house. The plaintiffs owned land adjoining that of the defendants. It was covered in vegetation. In February 2000 the defendants cleared wild vegetation on the plaintiffs’ land, levelled and paved it. They sowed grass and built a small ‘golf course’ on it. The result was that the land was a metre higher than the rest of the plaintiffs’ neighbouring land. The defendants also built a shed on the land. The defendants used the land for golf practice and walking the dog. They cut the grass from time to time. In early 2001, the defendants built a fence along one boundary. The possession proceedings were issued on 3 August 2012 so the question was whether there had been factual possession and an intention to possess since August 2000. The plaintiffs contended that they were only present from 2001 when the fence was erected.

Overturning the first instance decision, the Court of Appeal found that the events that took place in 2000 were sufficient to allow the defendant’s adverse possession claim to succeed. Paving or cultivating land is a clear act of possession ([4.8] – [4.11]). In this case, even before the fence, the presence of a pre-existing ditch combined with the work of raising the ground level of the land meant that there was a 6 feet drop from the disputed land to the rest of the plaintiff’s land. This barrier was an effective way of staking an interest in the land ([4.13]).

On the intention to possess, it was true, as explained in Powell v McFarlane, that the defendants as trespassers needed to provide ‘clear and affirmative evidence that the trespasser … not only had the requisite intention to possess, but made such evidence clear to the world.’ If the use to which the land was put was equivocal, there needed to be compelling evidence of an intention to possess. The actions of 2000 were sufficient evidence of an intention to possess. The plaintiffs’ possession proceedings failed and their title was extinguished.

Michael Lower

Adverse possession: recent reminder of the core elements

January 19, 2014

In Kiuwide Co Ltd v Tseung Ding Man ([2014] HKEC 5) the plaintiff had been the registered owner of a detached house since 1986. It was later discovered that the defendant had the formal title to part of the garden and swimming pool that had been enjoyed with the property at last since 1986. The plaintiff claimed that it had extinguished the defendant’s title by adverse possession and the court agreed. The court granted a declaration that the defendant’s title had been extinguished and that the plaintiff had possessory title to the land.

The court reminded itself of the law as to the core concepts of possession ([24] referrring to Powell v McFarlane) and intention to possess ([25] referring to Wong Tak Yue v Kung Kwok Wai).

Deputy Judge Marlene Ng made these comments concerning the intention to possess:

‘First, although the squatter must intend to exercise exclusive control for his own benefit, he need not have a conscious intention to exclude the true owner. It is enough that the squatter intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allow”. Secondly, an intention to own the land or even an intention to acquire ownership is not required for establishing the animus possidendi. Thirdly, the animus possidendi can be established even if the squatter mistakenly believes himself to be the owner of the land.’ ([26]).

Michael Lower

Adverse possession: limitation period; abandonment of possession?

April 8, 2013

In Law Bing Kee v Person(s) in occupation of RP ([2013] HKEC 405, CFI) P was the registered owner of the disputed land (part of a larger portion owned by him). D’s predecessor as owner of neighbouring land had, in 1954, fenced off the disputed land and included it within the area of the farming activity carried on on the neighbouring land. A temporary structure was placed on the land by the predecessor in the 1980s. The fence fell into disrepair in the 1980s and the land ceased to be put to specific use. The predecessors did, however, rent out the temporary structure. Significantly, P’s title was the subject of a New Grant in 1985 so the limitation period could only start running then. P sought possession. D’s counterclaim relied on adverse possession of the disputed land.

The court considered section 38A of the Limitation Ordinance. The twenty year limitation period had not been completed by 1 July 1991. The time period remained twenty years and this carried on running after 1 July 1991: ‘[o]nly in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.’ ([36] per Recorder Ambrose Ho SC).

The fencing was an unequivocal assertion of possession ([40]).

The winding down of the use in the 1980s did not amount to an abandonment of possession: ‘what is required to establish possession is the taking of possession, and not continuous use.’ ([42]) P’s occasional presence to trim the trees did not amount to a taking back of possession ([43]).

D’s counterclaim succeeded.

Adverse possession: intention to dispossess needed? Elements of an implied licence.

January 3, 2013

In J. Alston & Sons Ltd v BOCM Pauls Ltd ([2009] 1 EGLR 93) A farmed the disputed land as B’s licensee. The licence ended by operation of law when the title to the land was transferred to Pauls in March 1977. A carried on farming the land, believing that Pauls was the owner but intending to carry on farming the land until required to leave by Pauls. Pauls served notice purporting to terminate the (already long expired) licence in 2007. A brought these proceedings claiming that Pauls’ title had been defeated by virtue of section 8(1) of the Limitation Act 1980 and that Pauls therefore held the title on trust for it pursuant to section 75 of the the Land Registration Act 1925. Pauls’ defence relied, inter alia, on the proposition that A needed to show (and could not) an intention to dispossess Pauls. Pauls also argued that A had been in occupation pursuant to the terms of an implied licence. A succeeded.

HH Judge Marshall QC applied the House of Lords’  explanation of the law in J A Pye. The question was whether A had only an intention to stay temporarily (ie to occupy but not possess); this was a question of fact and degree ([63]). A intended to stay on the land as long as possible. He accepted that he would have left if Pauls had insisted (but they never did). He thought that they were the owners of the land. He would have objected if any third party had tried to make use of the land ([87]). This was sufficient. There is no need for an intention to dispossess:

‘I reject the argument that there has to be an intention to “infringe the rights of the true owner”, which seems to me to be reintroducing the deprecated connotations of conflict attaching to the label “adverse possession”. Pye shows that the necessary intention is simply that of possessing the property on one’s own account and in one’s own interests and sufficiently indefinitely and permanently as to amount to “possession” in law, and not merely to temporary “use”. So long as one does so without any permission from the owner, in point of fact or law one is in “adverse” possession, simply because the law makes it adverse to the true owner’s interests.’ ([99])

An intention to possess indefinitely coupled with an acceptance that the paper owner has the right to demand possession is a sufficient intention to possess ([104]).

Pauls had also relied on the concept of an implied licence. The Limitation Act 1980 (Schedule 1, para. 8(4)) makes it clear that the implied licence must be real. There was no evidence of an implied licence on the facts of this case ([133]). The judge reviewed the recent English authorities and said:

‘In all the cases (Lambeth, Bath, Dawson, and Batsford) where such an implied licence has been found, there has been one of two situations. Either the occupation was pending the negotiation of the grant of an interest in the land (Bath and Dawson), in which drawing such an inference is relatively easy, or the history of the matter has shown that there was a specific intention on the part of the owner to seek to eject the occupier, followed by an express reconsideration and change of stance, with a good deal of communication going on between the parties, from which the obvious inference, obvious to anyone who knew the facts, was that the owner had made an express decision to permit the occupation and the occupation was continuing for that reason, thus amounting to the giving of permission by implication.’  ([137])

There had also been a suggestion that Pauls had retaken possession by pumping excess surface water from its neighbouring land onto the disputed land a few times a year. This argument failed. The acts were minor, affected only a small part of the land, had no impact on A’s operations and were not even noticed by him ([77]).

Adverse possession in Singapore

May 31, 2012

In Ng Tsorng Chinn v Vijaykumar Nanalal Shah ([2012] SGHC 55) N’s predecessor as owner of plot A had enclosed the neighbouring plot B by fencing it in. Thenceforth, the only access to plot B was via plot A. N now claimed to be entitled to be treated as the owner of plot B by virtue of an unbroken chain of adverse possession of plot B by himself and his predecessors. The claim succeeded. The fact that the conveyance of plot A included limited rights to drain into a septic tank on plot B did not amount to permission for a more extensive occupation (thus the possession was not the result of a licence). Fencing the land in so that it could only be accessed via plot A was both possession and evidence of an intention to possess (even if there were no other ‘active’ adverse possession). In this regard, the court cited (at 17 – 18) with approval the English explanation of intention to possess in Megarry and Wade (7th ed) and Gray and Gray (5th ed); there is no need for an intention to dispossess or to acquire an estate in land but only an intention to stay for as long as one can. There was no need, either, for each squatter in the chain to convey to the next whatever rights it had or was in the course of acquiring in plot B. The court relied on the reasoning in Site Developments (Ferndown) Ltd v Cuthbury Ltd in this regard. The doctrine of adverse possession has been abolished in Singapore but the title to plot B had been extinguished before that abolition and the squatter’s rights had been properly protected after that.

Adverse possession on behalf of a tso

May 9, 2012

A Tso is capable of being in adverse possession.

In Chow Tin Sang v Citehero International Ltd ([2012] HKEC 611) both the plaintiff and the defendant had been registered as having title to a plot of land near the centre of Sai Kung (‘the Land’). It was clear, however, that the defendant had the formal legal title and the plaintiff did not. The plaintiff based his claim, on behalf of a Tso, on adverse possession relying on the use that his family had made of the land since (to his personal knowledge) 1920. The court accepted that there had been the necessary factual possession. Enclosure was evidence here of the necessary intention to possess. Some of the boundaries were marked off by natural features and walls had been constructed along others. The fact that the walls could be surmounted readily easily was irrelevant:

‘the whole surroundings give me the impression that the Land is the backyard of the plaintiff’s house. That should also be the perception to a reasonable person’. (per Deputy Judge David Lok at [83]).

A Tso is capable of being an adverse possessor ([90]).

Unilateral licence can stop time running for adverse possession

October 12, 2011

Where a landowner grants a licence to a squatter and the squatter does not reject the licence, the effect is that possession ceases to be adverse: the limitation period stops running.

In B.P. Properties Ltd v Buckler ((1988) 55 P & CR 337, CA (Eng)) adverse possession began in 1955. The landowner obtained a possession order but did not execute it. In 1962, a fresh possession order was obtained but not executed. In 1974, the landowner wrote to the squatter granting her licence to live in the property until her death. She died in 1983 and her son claimed that the landowner’s title had been extinguished by adverse possession. The English Court of Appeal rejected this claim. The effect of the possession orders was that time did not start running until 1962 at the earliest. The landowner had given the squatter a licence to remain and the squatter had neither accepted nor rejected it. The unilateral licence meant that her possession was no longer adverse. It might have been different had she rejected the licence.

What if squatters believe (mistakenly) that they are licensees?

June 14, 2011

Even a mistaken belief on a squatter’s part that he is the owner’s licensee and that that licence is the basis of possession negates an intention to possess.

In Clowes Developments (UK) Ltd v Walters ([2005] EWHC 669 (Ch)) D occupied land as licensee of M. M transferred title to C. This terminated the licence by operation of law. D knew of the transfer. D remained in occupation in the open and acknowledged belief that she occupied as C’s licensee. This belief negated the intention to possess. If asked why she was there D would have replied that she was there as C’s licensee.

Intention to possess so far as the law allows

June 13, 2011

In England (unlike Hong Kong it seems) a squatter can still have an intention to possess even though he gives evidence to acknowledge that if called on to do so he would have paid rent and that during the limitation period he could have been evicted (and even expected to be evicted). There is no need to prove an intention to possess for the duration of the limitation period.

In Lambeth v Blackburn ([2001] EWCA Civ 912, CA (Eng)) B broke the padlock on a flat owned by Lambeth Council and replaced it with his own yale lock. He improved the flat over the years and used it as his home. There was clear possession but was there intention to possess? In giving evidence, B had acknowledged that: he thought his occupation was going to be temporary because the Council would evict him; that he would have paid rent if demanded; and that he would have been obliged to co-operate or negotiate with them if they had required him to do so. None of these admissions, however, led to th conclusion that he had no intention to possess. The admissions were perfectly compatible with the requirements of an intention to possess explained in Powell v McFarlane  and Buckinghamshire County Council v Moran.