Read the full judgment text of CACV 119/2017 on BabelCite. This Court of Appeal judgment was delivered on 27 June 2019 before Cheung JA, Yuen JA, Barma JA.
Civil appeal – adverse possession – residential flat in Ho Man Tin – registered in defendant's sole name but purchased with partnership funds – Limitation Ordinance Cap 347 ss.7 and 17 – two-limb test of factual possession and intention to possess – whether initial tenancy gave way to adverse possession after rent ceased – whether owner's conduct amounted to unspoken permission or mere acquiescence – acquiescence does not defeat adverse possession – change of locks and capital expenditure on building renovation as evidence of intention to possess – mesne profits – rateable value not sufficient evidence of quantum – appeal allowed – cross-appeal dismissed. The flat at Flat A on the 2nd Floor, Gallant Garden Mansion, No 23-27 Ho Man Tin Street, Kowloon was purchased in about 1973 by the plaintiff's father Poon Senior and the defendant's father Lai Senior using partnership funds of Sun Cheong Metal Shop, with title conveyed into the defendant's sole name. From about December 1975, the plaintiff's uncle Poon Yiu Chung and his family occupied the flat, initially paying rent of HK$700 per month to Lai Senior under a tenancy. After the partnership ended acrimoniously in February 1976, Poon Yiu Chung and his family continued to occupy the flat rent-free until 1997, when the plaintiff took over occupation, changed the locks, renovated the flat, and paid management and maintenance charges, including a HK$65,000 contribution to capital renovation works. The plaintiff claimed possessory title by adverse possession under sections 7 and 17 of the Limitation Ordinance (Cap 347), and the defendant counterclaimed for vacant possession and mesne profits. The first issue was whether the defendant had established an unspoken or implied permission to occupy the flat after rent ceased; the Court of Appeal held that the four matters relied on (payment of rates, failure to recover possession, Poon Senior's 2004 enquiry about purchasing, and the plaintiff's failure to ask about the basis of occupation) were at most indicative of acquiescence, which does not defeat a claim of adverse possession. The second issue was whether the plaintiff had the requisite intention to possess the flat adversely to the defendant's title; the Court of Appeal held that, given the initial tenancy, continued exclusive rent-free occupation, the change of locks, and capital expenditure on building renovation, the plaintiff had established the necessary intention to possess. The appeal was therefore allowed, the declaration sought was granted, and the defendant's cross-appeal on mesne profits (which had failed below for want of evidence of quantum, the rateable value being insufficient) was dismissed. Costs were ordered to the plaintiff on a party and party basis.
Legal issues: Whether unspoken or implied permission to occupy the flat was established · Whether the plaintiff established the requisite intention to possess the flat adversely to the defendant's title
Outcome: Plaintiff's appeal allowed; judgment below set aside; declaration granted to the plaintiff that he has acquired possessory title to the flat. Defendant's cross-appeal dismissed.
Cited by 14 cases · Cites 2 cases