Archive for the ‘Partition’ Category

Partition where squatter acquires title to part of land of paper owner

January 17, 2020

In Fan Kiu v Li Kwai Wan ([2020] HKCFI 130) F acquired title by adverse possession to land. The land in question was part of the land covered by three separate formal titles. F sought partition of the land in respect of which she had defeated the rights of the formal owners and a declaration that she was the sole owner of the relevant parts. She wanted to be registered as the sole owner of the land to which she had acquired title.

Deputy Judge William Wong SC held that she and the formal owners were co-owners for the purposes of the Partition Ordinance. A squatter of part of the land covered by a paper title could be seen as a co-owner with the formal owner who retained ownership of the rest of the land covered by the paper title. This was so even in respect of those parts of her land where the formal owner was a tso ([47]).

Partition would be beneficial to the development of the land. It would help F to get the consents she needed to demolish her existing dilapidated house on the land and build a new house. This was consistent with one of the purposes that the law of adverse possession is designed to achieve (encouraging the development and improvement of land) ([65]). The formal owners could not be contacted despite extensive efforts to do so.

Even without partition, F was entitled to a declaration to the effect that she was the sole owner of the land covered by her successful adverse possession claim ([59]).

F was granted the orders for partition and the declarations that she sought.

Michael Lower

Partition or sale?

June 15, 2012

In Toh Tian Sze v Han Kim Wah ([2012] SGHC 111) the Singaporean High Court had to consider an application for an order for partition or sale. P and D were tenants in common in equal shares. The co-owned land was physically divided by a wall and there was a detached house on each side of the wall. P had bought his share as an investment and D had lived in one of the houses but had now moved out and it was occupied by a tenant. The houses were rather decrepit but planning consent could only be obtained for the construction of a pair of semi-detached houses as the sub-divided plots were too small to allow for permission to build two new detached houses to be obtained. The parties could not agree on a proposal to redevelop so P sought partition or sale. Since P clearly had a right to partition, the only question was whether the order should be for partition or sale. D’s interests would not be prejudiced by a sale. Redevelopment would unlock the economic value of the land but would require the parties to co-operate and this seemed unlikely to happen. An order for sale was made.

Order for sale: ‘beneficial to all the persons interested’

March 20, 2012

In Chan William Lai Yee v Chan Yau Yuen Fun Therese ([2012] HKEC 363) two luxury properties were held by the parties as tenants in common. The plaintiffs sought an order for sale. The defendant lived in one of the properties rent-free with her family. The plaintiffs were four elderly people who depended on their share of the property to support them financially. Essentially, they were not getting any benefit (either in terms of rent or possession) from the property occupied by the defendant. Section 6 of the Partition Ordinance gives the court the power to make an order for sale where partition is not practicable. In Wong Chun Kei Johnny v Poon Vai Ching ([2007] 1 HKLRD 825) Recorder Fok SC (as he then was) said:

‘When it is impracticable to make an order for partition, the court should make an order for sale unless it is persuaded (the burden being on the opposing co-owner) that such an order will not be beneficial to all the co-owners, or that it will result in very great hardship to one co-owner.’

He went on to say that whether the order is beneficial to all the co-owners is an objective question and that it might be beneficial even if some co-owners opposed the making of an order. Presumably this means that one looks at the interests of the co-owners as a body or perhaps at the interests of a hypothetical co-owner of the relevant property.

In this case, it was clear that the parties were unwilling to continue as co-owners and the primary purpose of the legislation is to allow unwilling co-owners to terminate an unwanted co-ownership (Pun Jong Sau v Poon Wing Kong). An order for sale would allow all the parties to benefit from a reasonably bouyant market. It would not cause undue hardship to the defendant (para. 22).

Wai Ming Trading Ltd v Poon Tang Fat

February 7, 2012

In Wai Ming Trading Ltd v Poon Tang Fat ([2012] HKEC 146) W owned 11 / 12 and P owned 1 / 12 of a plot of land. P had assured W that he would sell the 1/12 share to W and, on the strength of that, W had acquired the interests of the other former owners. P later decided not to sell. W now sought an order for sale and P resisted. W was successful; partition was not practicable and there was nothing to indicate that the interests of the co-owners would be better served by continuing the co-ownership. There was no evidence that the sale would impose any hardship on P. The agreement was another relevant factor.

Order for sale – need to show that the nature of the land makes partition undesirable?

October 17, 2011

Lam Sik Shi v Lam Sik Ying ([2010] HKEC 779, CA) concerned a dispute between two half-brothers who were tenants in common of a shop in Causeway Bay. The plaintiff’s application for an order for sale had succeeded at first instance. Indeed, the defendant had accepted that partition was not the appropriate relief. Rather, he sought to prevent a sale. The defendant appealed on the ground that there was no basis on which the judge could have decided that partition was not feasible. But there had been no suggestion before him that partition was feasible and such evidence as there was provided a sufficient basis on which to conclude that partition was not feasible. The defendant also argued that it had not been shown that partition would not be beneficial to all the parties because of the lack of evidence that it was not practicable. The Court of Appeal pointed out that section 6(1) of the Partition Ordinance specified four reasons for finding that partition was not beneficial and that the nature of the land was only one of these.

The rule against perpetuities does not apply to compensation paid on the resumption of Tso land

February 23, 2011

The rule against perpetuities does not apply to compensation paid on the resumption of Tso land to which section 13 of the New Territories Ordinance applies. The law of partition does not apply to Tso land. A sale needs the consent of all of the members. There is no Chinese custom concerning the distribution of Tso land (since in principle it was not to be divided). The members themselves would have to agree on how it (or sale proceeds) should be distributed.

In Kan Fat-Tat v Kan Yin-Tat ([1987] HKLR 516) land belonging to a Tso was resumed by the government. Compensation took the form of cash and Letters B. As a result the Tso property comprised this compensation and other land belonging to the Tso. The plaintiff sought a partition of the land and per stirpes distribution of the compensation. The defendant, his brother, claimed that if the Tso failed then its property should belong to him on a resulting trust as he had provided the Tso property in the first place. It was held that section 13 of the New Territories Ordinance and Chinese customary law in the New Territories meant that the compensation remained Tso property and the rule against perpetuities did not apply. Had it applied, the Tso would fail with regard to that property and it would be held on resulting trust for the defendant. The law on partition did not apply to Tso land. Any sale or distribution needed the consent of all of the members. There was no Chinese custom as to how a distribution should be effected and the members would have to agree on this for themselves.

Partition of Tso lands

February 20, 2011

The provision in the New Territories Ordinance giving the court power to recognise Chinese custom and customary law affecting land in the New Territories is mandatory. Accordingly, the law of partition and the rule against perpetuities do not apply to such land.

Tang Kai-Chung v Tang Chik-Shang ([1970] HKLR 276) was an action for partition of Tso lands. The six sons of a focal ancestor formed a Tso after their father’s death. The descendants of each son formed a Tong. The Tso land was divided into nine portions. Six of these were managed on behalf of the Tongs. Management of each portion rotated amongst the six Tongs. The income from the land was divided among the Tong members. The managers of the smaller Tongs brought an action for the partition of the Tso land so as to create six equally sized portions. Each Tong would then have its own portion. This application was resisted by the managers of the larger Tongs. They argued that the English law of partition (which was the law then being relied on as the Partition Ordinance came into effect after proceedings had been commenced) was inapplicable since it was inconsistent with Chinese customary law. Section 13 of the New Territories Ordinance (Cap 97) gave the court power to recognise and enforce any Chinese custom or customary right affecting land in the New Territories. Mills-Owen J held that section 13 was mandatory. It meant that the English law of partition and the rule against perpetuities did not apply to Tso land in the New Territories. The application for partition failed.

Court can order a sale under the Partition Ordinance whether or not partition is feasible

December 22, 2010

The Court’s power to order a sale under the Partition Ordinance can be exercised whether or not a partition is physically feasible or practicable.

In Pun Jong-Sau v Poon Wong-Kong ([1980] HKLR 662, HC) the majority of the co-owners of a fairly old multi-storey building applied for an order for sale under the Partition Ordinance. Four co-owners (the defendants) argued against the making of such an order. Expert evidence showed that partition was physically but not economically feasible. The defendants argued that if the Court would not make an order for partition then it had no power to order a sale. Trainer J. rejected this. The aim of the Partition Ordinance was to give the Court the ability to respond as it saw fit and even to refuse to make an order. The Court could make an order for sale even when partition was not physically possible or practicable.

Factors relevant to order for sale under the Partition Ordinance

December 21, 2010

In considering whether to order a sale under the Partition Ordinance the court is to consider how the order would affect persons ‘interested’ in the property. This refers only to those with a legal or beneficial interest in the property.

In Ip Sau Shu v Sham Lai Hing ([2003] 2 HKLRD 916, CFI) the plaintiff and defendant were joint tenants of the property at which they co-habited, They had a daughter who lived with them. They fell out. The plaintiff severed the joint tenancy and sought an order for sale. The power to order a sale is found in section 6 of the Partition Ordinance. Section 6(1) empowers the court to order a sale ‘where it appears to the Court that a partition of the property would not be beneficial to all the parties interested.’  One question was whether the daughter was ‘interested’. Deputy Judge Poon held that she was not. Only someone with a legal or beneficial interest in the property was ‘interested’ in the relevant sense. The daughter’s circumstances were relevant only as an aspect of her mother (the defendant’s) circumstances. On the facts, the plaintiff would suffer far greater hardship if a sale were denied than would be caused to the defendant by the sale. Accordingly, an order for sale was made.