Posts Tagged ‘encroachment’

Inchoate encroachment claims: did the Handover start time running again?

April 15, 2015

In Li Kwok Ching v Secretary for Justice [2015] HKEC 552, CFI) the plaintiff was the Government lessee of land near Sheung Shui. He sought a declaration that the Government was barred from recovering possession of neigbouring unleased land by virtue of the doctrine of encroachment. The claim failed because the  plaintiff was unable to establish that he had been in possession for the sixty year period demanded by section 7(1) of the Limitation Ordinance. In case, he was wrong on this, however, Godfrey Lam J. went on to consider the Government’s contention that the handover started time running afresh against the Government.

The argument was that the Peking Convention made the British Government a lessee of the land in the New Territories. The effect of the handover was to bring that lease to an end and to give possession to the Government of the Hong Kong SAR (on behalf of the Chinese State). Thus, time started running again against the Government of the Hong Kong SAR in 1997. The plaintiff’s possession up to 1997, it was argued, could only possibly have affected the title of the British Government.

Godfrey Lam J. rejected the Government’s argument on the basis that the Peking convention did not grant a leasehold estate. The Peking Convention operated at an international level and did not create an estate in land that was justiciable in domestic courts ([75]). As far as this type of inchoate encroachment claim was concerned, the Government of the Hong Kong SAR simply stepped into the shoes of the British Government ([76]). Article 120 of the Basic Law made it clear that the Goverrnment’s rights to land were subject to leases in existence in 1997 and ‘all rights in relation to such leases”; the rights of one who, like the plaintiff, had encroached upon Government land were among such rights ([80]). The Government’s argument failed.

Michael Lower

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Encroachment by Government lessee: time did not start to run again in July 1997

February 27, 2013

In Lee Bing Cheung v Secretary for Justice ([2013] HKEC 255, CFI) L rented property in 1949 and bought the property in 1952. The land that he rented and then bought was partly land held under a lease from the Government and partly on unleased land. In January 2010, the Government evicted L from the unleased land. L sought a declaration that he was entitled to possession (either as a result of the doctrine of encroachment or of proprietary estoppel). L also sought mesne profits from the Government.

L succeeded on the basis of the doctrine of encroachment. He had been in possession of the land from 1949 to 2010. L was entitled to possession until the Government lease ended (it was a lease for 999 years). The Government’s argument that time started to run again with the resumption of sovereignty in 1997 failed ([181]).

At a time when the Government already knew of L’s occupation of the disputed land it stood by and allowed him to spend a considerable amount of money on works partly on the buildings on the unleased land. Even though the Government could not be said to have known of L’s mistaken belief that he occupied the land under the terms of the Government lease, the Government would have been estopped from taking back possession. This wanot the basis for the outcome (which rested on encroachment).