Read the full judgment text of FACV 000012/2003 on BabelCite. This FACV judgment was delivered on 26 March 2004 before Bokhary PJ, Chan PJ, Ribeiro PJ, Nazareth NPJ, Mason NPJ.
Land law – adverse possession – possessory title – squatter – whether a squatter can acquire a possessory title to land through his tenant's occupation – whether a tenancy granted by a squatter constitutes an act of ownership putting the squatter in adverse possession through the tenant – whether periods of personal and tenant possession can be aggregated – Limitation Ordinance, Cap. 347, ss.7, 12(3), 13(3)(b), 17 – Limitation (Amendment) Ordinance 1991, s.5 – agricultural land in the New Territories – 1st respondent went onto the lot as a squatter in 1960 and remained for seven years farming and improving it – he then let the lot to a tenant who farmed and further improved it for 30 years – in 1996 the 1st respondent commenced proceedings seeking a declaration that the paper owner's title had been extinguished under s.17 and that he had acquired a possessory title – the 20-year limitation period (applicable before the 1 July 1991 amendment) was satisfied by aggregating the squatter's 7 years of personal possession and the 30 years of possession through his tenant – whether s.12(3) and s.13(3)(b) envisage a squatter intercepting rent on a tenancy granted by the paper owner rather than a squatter granting the tenancy – policy argument that permitting acquisition through tenants would create a squatters' charter of professional squatters acquiring vast tracts by placing tenants on them rejected as unrealistic in Hong Kong – held: when a squatter grants a tenancy and receives rent, he acts inconsistently with the title of the paper owner and is in adverse possession of the land through his tenant, so a squatter can acquire a possessory title to land through his tenant's occupation – there is no principled distinction between a tenancy granted by a squatter and a licence granted by a squatter, and the former is at least as much an act done in the assumed character of owner as the latter – persuasive English, Australian, Singaporean and Hong Kong authority (including the Court of Appeal's decision in Tang Kwan Tai v. Tang Koon Lam) all proceeded on the basis that a squatter can be in adverse possession through a tenant – appeal dismissed with costs to the respondents in the Court of Final Appeal and in the courts below.
Legal issues: Whether a squatter can acquire a possessory title to land through his tenant's occupation
Outcome: Appeal unanimously dismissed; respondents' claim for possessory title upheld.