Read the full judgment text of CACV 26/2010 on BabelCite. This Court of Appeal judgment was delivered on 14 February 2011 before Rogers VP, Le Pichon JA, Kwan JA.
Property law – encroachment – doctrine of ancient origin akin to estoppel – tenant encroaches on landlord's land not part of demise – presumption that encroached land is part of holding – New Territories Crown lease for 75 years from 1 July 1898 with right of renewal for 24 years less three days – Lot 1212 D.D. 115 described at 1916 grant as marshy land and foreshore – fishponds constructed from early period extending into discrepant area beyond lease boundary – aerial photographs from 1924 showing encroachment – fish farming until 1980s – whether 60-year period under section 7 of Limitation Ordinance Cap. 347 relevant to encroachment – whether plaintiffs entitled to aggregate periods before and after 1 July 1973 to establish encroachment – application of Privy Council decision in Chung Ping Kwan v Lam Island Development Ltd [1997] AC 38 – 99-year lease with specifically enforceable right of renewal – inchoate rights of encroachment preserved through renewal – Renewal Ordinance Cap. 152 was administrative machinery – whether Extension Ordinance Cap. 150 created new lease defeating accrued rights – Court of Final Appeal decision in Chan Tin Shi v Li Tin Sung (2006) 9 HKCFAR 29 – lease extended not re-granted – Government 70-year inaction – tacit consensual arrangement that discrepant area treated as part of leased premises – something akin to estoppel – appeal allowed – declarations that discrepant areas are accretions to leased land – plaintiffs entitled to possession until 30 June 2047 – defendant to pay costs of 1st, 11th to 15th plaintiffs on appeal and 80% of costs below – further appeal to Court of Final Appeal dismissed (FACV 5/2011).
Legal issues: Relevance of 60-year limitation period to encroachment · Aggregation of pre- and post-1973 periods of encroachment · Effect of Extension Ordinance Cap. 150 on encroachment rights after 30 June 1997 · Application of broader encroachment/estoppel principles based on Government inaction
Outcome: Appeal allowed; judgment below set aside; declarations granted in favour of the 1st plaintiff and the 11th to 15th plaintiffs that the discrepant areas of Sections A, D and E of Lot 1212 are accretions to the leased land and the plaintiffs are entitled to possession thereof until 30 June 2047.