Posts Tagged ‘limitation period’

Adverse possession: what is the limitation period when time began to run before 1 July 1991?

October 7, 2019

Section 7 of the Limitation Ordinance provides that the limitation period (other than for land owned by the Government) is twelve years.

Section 38A of the Limitation Ordinance provides, in effect, that the former twenty year limitation period applies where a period of adverse possession began before 1 July 1991 but had not expired by then.

In Tang Moon Lam v Tang Ying Yeung ([2019] HKCA 1102) the defendant was in adverse possession of the plaintiff’s land from 1990 to the end of 2007. The defendant argued that section 38A could be interpreted to mean that a squatter’s adverse possession claim could succeed where it could establish a twelve year period of adverse possession beginning on or after 1 July 1991 even if the period of adverse possession began before then.

The Court of Appeal rejected this argument. The adverse possession period is twenty years for all claims where the period of adverse possession began before 1 July 1991.

Michael Lower

 

Adverse possession: where part of the limitation period is taken up by squatter’s declaration proceedings

August 4, 2016

In Tang Wai Tung v Tang Wai Lun ([2016] 3 HKLRD 96, CA) TWL claimed to have acquired title to Tso lands through adverse possession, having continued a period of adverse possession begin by his father, TPK. This may have been possible because there was a period of time during which there were no new members whose claim would not be defeated by a successful adverse possession claim. The claim failed because TWL could not establish factual possession. The Court of Appeal (Yuen JA giving the judgment) also considered an interesting issue concerning the effect of litigation commenced during the limitation period. Here, TPK began proceedings against the Tso in 1998 and these were taken over by TWL after TPK’s death. Amongst other things, TPK sought a declaration that the Tsos title to the land had been defeated by adverse possession. In its defence, the Tso denied this but it did not counterclaim for possession. The Court of Appeal considered that the 1998 proceedings (eventually struck out in 2011) stopped the limitation period running despite the absence of an express claim to possession by the Tso.  The court had to look at the substance of the issue and the claim to possession was at the heart of the 1999 proceedings ([49]). Further, TPK’s conduct in bringing the proceedings could be taken into account. Bringing the action, and then failing to progress it, may well have been motivated by a desire to prevent the Tso from bringing its own action to recover possession ([50]).

TWL also claimed that the disputed land had been conveyed to his grandfather. The court had serious concerns about the documents produced in support of this claim. In any event, there was no evidence that consent to a sale had been obtained  pursuant to section 15 of the New Territories Ordinance. This omission would invalidate the transaction in any event (Light Ocean Investments Ltd v Emway Development Ltd [1994] 3 HKC 31).

Michael Lower

Adverse possession and Tong land

October 13, 2014

In Tsang Kwong Kuen v Hau Wai Keung Gaius ([2014] HKEC 1612, CA) P claimed to have acquired title of Tong land as a result of adverse possession. The claim failed for several reasons at first instance.

One of these was the principle in Leung Kuen Fai v Tang Kwong Yu (applied in Wong Shing Chau v To Kwok Keung). There were members of the Tong whose beneficial interests had not been defeated.

In the present case, Lam V-P explained the principle thus:

‘The essence of the relevant principle is that due to the peculiar characteristic of a Tso or Tong (preserved by Chinese customary law and s 13 of the New Territories Ordinance Cap 97) with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso or Tong under the Limitation Ordinance unless he can establish the requisite limitation period against all the living members of the Tso or Tong.’ (at [5]).

In this appeal, the plaintiff contended that there was insufficient evidence to prove the existence of the Tong.  This failed since the oral evidence to this effect given in the first instance proceedings had not been contradicted by the plaintiff. ‘There is no requirement that a Tong must have a written document proving its nature as a hereditary Tong. ‘([9]).

The plaintiff further argued that there was insufficient evidence to show that the members said to have undefeated equitable interests really were members of the Tong. The managers relied upon their own knowledge and on informal methods of finding out about new members.  This method was adequate in the context of this type of institution:

‘First, in dealing with a customary hereditary institution like a Tong, it would not be appropriate to expect records are being kept in the same manner as in the case of a register of members for a large commercial corporation. Hau Keung’s evidence on how the list was compiled makes perfect sense in the context of an institution of this nature. It had been verified by all the managers and basically they knew each other. In any event, the presumption of regularity is applicable.’ ([12]).

Michael Lower