Read the full judgment text of HCA 001056/1988 on BabelCite. This High Court CFI judgment was delivered on 3 May 1991 before Deputy Judge Jerome Chan.
Property law – common parts of building – Deed of Mutual Covenant – tenants in common – adverse possession – limitation – estoppel – acquiescence – waiver – 'A' units erected by developer Jaime Chua Tiampo on common parts of Chungking Mansions and assigned to defendant Shamdasani – plaintiffs incorporated in 1972 under Multi-storey Buildings (Owners Incorporation) Ordinance Cap.344 – whether adverse possession must be established against all co-tenants individually for the period before incorporation of the owners – whether time for commencement of adverse possession and the incidence of possession being adverse would necessarily be the same as against all tenants in common – held that interests of tenants in common are separate and distinct and the Limitation Ordinance only bars the right of action personally as against those whose particular right has been infringed – it is possible for time to run as from different dates as against different tenants in common and for possession to be adverse to some but not all – defendant failed to establish the history of the co-owners' titles and could not establish adverse possession against his own predecessor-in-title – whether ousting of co-owners by defendant's predecessor-in-title amounted to adverse possession when he publicly acknowledged the subsistence of the rights of the co-owners in assigning the common parts subject to the Deed of Covenant – held that public acknowledgement of the co-owners' rights defeated the character of adverse possession – defendant never had twenty years of adverse possession for several of the 'A' units – defence of limitation under section 7(2) of Cap.347 failed – whether the defendant was misled into believing that no enforcement of the Deed of Covenant would be made against him – held that defendant was not misled as he was legally represented and signed a written confirmation acknowledging the defects in title and the bank's valuation excluded the 'A' units – estoppel and acquiescence failed for lack of reliance on the plaintiffs' conduct – whether the indulgence granted to the predecessor-in-title personally as developer constituted a general waiver of rights under the Deed of Covenant – held that the waiver was personal to the Tiampos and not transferable – plaintiffs had commenced legal proceedings against other parties in 1980 and 1984, demonstrating that the indulgence was not general – judgment for plaintiffs with declaration that the 'A' units are common parts of the building, declaration of co-owners' joint rights, injunction to restrain exclusive occupation by the defendant, and damages assessed on rental income from 28 October 1987 to the date of cessation of possession – claim for order of possession dismissed as the defendant is a co-owner entitled to joint possession – counterclaim for declaration of extinguishment of title under section 17 of the Limitation Ordinance dismissed as it is misconceived to seek such declaration against the incorporated owners in proceedings where the individual owners are not parties – costs of the action and counterclaim to the plaintiffs.
Legal issues: Adverse possession must be established against all co-tenants · Public acknowledgment of co-owners' rights defeats adverse possession · Estoppel and acquiescence require reliance · Waiver personal to predecessor-in-title is not transferable
Outcome: Judgment for the plaintiffs on the main claim; defendant's counterclaim dismissed.