Posts Tagged ‘intention to possess’

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

 

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