Read the full judgment text of CACV 3/2012 on BabelCite. This Court of Appeal judgment was delivered on 29 May 2013 before Yuen JA, Lam JA and Au J.
Civil appeal – adverse possession – common parts of building – incorporated owners – deed of mutual covenant – s.34I Buildings Management Ordinance (Cap. 344) – s.7(2) Limitation Ordinance (Cap. 347) – s.17 Limitation Ordinance – s.41 Conveyancing and Property Ordinance (Cap. 219) – whether squatter who is stranger to DMC can acquire possessory title over common part – whether s.34I BMO creates statutory cause of action overriding adverse possession – whether Re Nisbet and Potts' Contract applies to DMC covenants – Tulk v Moxhay doctrine – whether DMC is enforceable against squatter after paper title extinguished – common parts of Peony House at Nos. 2-6 Ka Shin Street – scavenging lane running along back of building – plaintiff occupied two-storey structure on part of Lane from 1987-1988 as plumber, electrician and locksmith – plaintiff installed iron door and gate blocking street access – IO sealed off plaintiff's shop and installed lockable steel gate in 2008 – proceedings in Lands Tribunal stayed pending DCCJ 2313/2009 – plaintiff claimed adverse possession and damages – IO counterclaimed for mandatory injunction and injunction restraining occupation – trial judge (Simon Leung DJ) found adverse possession since 1988 and declared IO had no right of action under s.7(2) Limitation Ordinance – whether adverse possession is a valid defence to IO's claim for injunction under s.34I BMO – held, s.34I BMO does not create statutory cause of action overriding possessory title obtained by adverse possession – held, a squatter's title is an independent title and extinguishes paper owner's right to recover land after requisite period – held, Re Nisbet and Potts' Contract concerns covenants benefiting neighbouring land, not covenants in a DMC governing co-owners' common possession of same land – Man Hong Apartments distinguished as case of co-owner bound by DMC – Chatham Road distinguished as case of trespassers bound by DMC – Mountain View Mansion obiter dicta not followed – appeal dismissed with costs to plaintiff taxed in accordance with Legal Aid Regulations.
Legal issues: Adverse possession of common parts by a stranger to the DMC · Effect of s.34I Buildings Management Ordinance on adverse possession · Application of Re Nisbet and Potts' Contract to a DMC
Outcome: Appeal dismissed; the IO's appeal against the declaration that it had ceased to have any right of action to recover possession of the Lane is dismissed.
Cited by 17 cases