Read the full judgment text of HCMP 000745/1995 on BabelCite. This High Court CFI judgment was delivered on 10 June 1998 before Hon Mr Justice Barnett.
Land law – adverse possession – receipt of rent as adverse possession – Limitation Ordinance (Cap 347) s.12(3), s.13(3)(b), s.17 – identity of registered purchasers – whether one person using aliases – whether cessation of rent collection amounts to abandonment – whether belief in ownership is inconsistent with intention to dispossess. The dispute concerned Lot 6047 in New Kowloon Survey District No. 1, part of the resumed Kowloon Walled City, with approximately HK$1.3 million in compensation payable. The 1924 conveyance and 1925 mortgage recorded three named purchasers, each described as making 'her mark'. The 2nd plaintiff claimed his grandmother Madam WONG was the sole owner using three aliases and alternatively claimed possessory title. The court applied Bligh v Martin [1968] 1 WLR 804 to hold that, under s.13(3)(b) read with s.12(3) of the Limitation Ordinance, a landlord receiving rent under a lease in writing reserving at least $20 is deemed to be in adverse possession of the land, even without actual occupation. The court found the family had collected rent of $45 per month from 1934 to 1974, sufficient documentation or an inferable lease in writing existed, and by 1974 the paper title had been extinguished under s.17 of the Limitation Ordinance. The court rejected the defendant's submission that the 2nd plaintiff had abandoned his rights by not collecting rent between 1974 and 1987, as the paper title had already been extinguished and no competing adverse possessor had emerged. The court also rejected, following Hughes v Cork (unreported, 14 February 1994) and distinguishing Wong Tak Yue v Kung Kwok Wai David (1998) 1 HKC 1, the argument that belief in legal ownership was inconsistent with the intention to dispossess required for adverse possession, holding that the test is an intention to possess with a manifested intention to exclude everyone else, not an intention to dispossess. The court further indicated it would in any event have been prepared to find that Madam WONG and the three purchasers were one and the same person, based on the 1965 grant of administration, the Land Registry record for another lot showing WONG Miu-cheung alias WONG Tsun-cheung with a chop, and continuous collection of rent with no competing claim. The 2nd plaintiff was granted a declaration of title by adverse possession and a declaration of entitlement to the compensation.
Legal issues: Identity of the three named purchasers of Lot 6047 · Adverse possession by receipt of rent under Limitation Ordinance s.13(3)(b) and s.12(3) · Effect of cessation of rent collection between 1974 and 1987 on adverse possession claim · Whether belief in ownership is inconsistent with intention to dispossess for adverse possession
Outcome: Judgment for the 2nd plaintiff: he has established a title by adverse possession to Lot 6047 and is entitled to appropriate declarations. The court indicated it would also have found in the alternative that Madam WONG and the three purchasers were one and the same person.