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Submitted by // K Bowers, Partner/Solicitor Advocate; P Yeung, Partner
31 May 2018

 

ILO With great power comes great responsibility

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Submitted by // K Bowers, Partner / Solicitor Advocate
25 May 2018


The importance of exclusive control in adverse possession

Cheung Kwan Yin (張坤炎) and another v Santa Fong Co Ltd [2018] HKCU 1512

This case involves an application for possessory title over land on the basis of adverse possession.

Facts

This case concerned an application by the Plaintiffs for possessory title of Lot Nos. 482 & 520, Demarcation District 3, Tung Chung ("Lots"). The Plaintiffs claimed that they had had continuous and exclusive possession of the Lots from late 1992 to August 2015, and that during this period of exclusive possession, the Lots were used for agricultural purposes.

The Defendant had been the registered owner of the Lots since 1980. The Defendant made a counterclaim for declaratory relief of its entitlement to possession of the Lots, and an injunction preventing the Plaintiffs from entering the Lots.

Elements of adverse possession

In order to establish a case of adverse possession, the Plaintiffs needed to prove:-

1. factual possession of the Lots for a continuous period of 12 years;
2. exclusive physical control of the Lots by dealing with the land in the same way an occupying owner would be expected to; and
3. requisite intention to possess and exclude the world at large, including the owner, from the land.

It was the Plaintiffs' case that they had possession of the Lots from 1992 until 2015, during which time they used the Lots for the plantation and cultivation of lychee trees. The Plaintiffs also claimed that they had the requisite intent to possess and exclude "the world at large" despite the lack of fencing around the Lots.

Finding

The Plaintiffs claimed that although the Lots were not fenced off, certain actions had been taken to exclude other people from accessing the Lots, one of which was planting trees so that they formed a barrier around the Lots. It was the Plaintiffs' case that only they could pass through this 'tree barrier'. When the Plaintiffs were asked to explain why they were the only ones that could pass through the 'tree barrier', no proper answer could be given.

The Court found that the Plaintiffs had lied when giving evidence and could not be relied upon at all. The Plaintiffs' application was dismissed because they failed to prove the requisite intent and physical control of an exclusive nature over the Lots. The Defendant was granted declaratory relief of its entitlement to possession of the Lots, and an injunction preventing the Plaintiffs from entering or using the Lots.

In setting down the requisite intention of exclusive possession, the Court cited Gotland Enterprises Ltd v Kwok Chi Yau & Ors CACV 260 / 2015, a case which held that fish and duck rearing inside ponds without physical barriers from adjoining land did not amount to exclusive possession and unequivocal intent to exclude the world. The Court of Appeal also made the observation that the growing of fruits on a piece of open land does not automatically support the assertion of exclusive occupation of the land. In the absence of physical barriers (fencing) set up to exclude others from entering the land, the Court will examine the steps taken by the person claiming exclusive occupation to exclude others from the land.

When considering a claim for adverse possession, it is important to remember that although the normal civil burden of proof (i.e. on the balance of probabilities) is still applicable, given the serious consequences of finding that the holder of the paper title no longer owns the land, the evidence of exclusive possession and intention must be compelling. The Court will not lightly assume that the paper title holder has foregone its interest in the land. 

 

About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

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Submitted by // K Bowers, Partner/Solicitor Advocate; M Withington, Partner
23 May 2018

 

ILO Lawmakers building HK$1 million safety net for policyholders

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Submitted by // K Bowers, Partner / Solicitor Advocate; P Yeung, Partner
23 May 2018

 

Not only is it anti-competitive, it's illegal! 

On 9 April 2018, the Competition Commission issued an advisory bulletin on the potential risks that could arise under the Competition Ordinance (Cap 619) in the employment context. 

Employment Marketplace

It is the Competition Commission's view that Hong Kong's free market economy depends on a healthy competitive environment, whereby employees benefit from competitive rivalry in the marketplace (just as consumers do). Competition among employers to hire employees often leads to better employment terms such as higher salaries and better benefits, thereby leading to increased opportunities for employees.

Contravention of the First Conduct Rule

The Competition Commission considered that employers are more likely to breach the First Conduct Rule of the Competition Ordinance. Specifically, the First Conduct Rule prohibits anti-competitive agreements, under which market participants collude with their competitors on key competitive parameters. Employers should therefore refrain from entering into an agreement or engaging in concerted practices regarding terms of employment or hiring of employees.

The Competition Commission has identified the following practices between employers as being at risk of contravening the First Conduct Rule:

(1) Wage-fixing agreements: Employers that have an agreement on any element of compensation for employees are fixing the price of labour. The definition of compensation is not limited to salaries, but also other benefits and allowances that may be offered to employees.

(2) Non-poaching agreements: Employers that have an agreement in relation to the solicitation or hiring of each other's employees. An example given by the Competition Commission is an agreement between employers to refuse to hire each other's employees.

(3) Exchange of sensitive information: The sharing of competitively sensitive information between employers about their intentions regarding employees' compensation or hiring, be it reciprocal or unilateral, and whether done directly or through a third party.

In accordance with the Commission's guidelines, the term "agreement" is defined broadly and can include any arrangement, understanding, promise or undertaking, whether express or implied, written or oral, and whether or not enforceable or intended to be enforceable by legal proceedings.

Contravention of the First Conduct Rule could result in financial penalties (as high as 10% of the company's turnover for a maximum of three years), director disqualification orders, or other sanctions.

Practical considerations

To ensure compliance with the Competition Ordinance, employers should independently determine their hiring and compensation policies. Human Resources personnel should avoid communicating with other employers in this regard or coming to any form of an agreement or understanding that would restrict competition amongst the employers. They should also avoid sharing any kind of information as to their future intentions with respect to salaries and benefits. Information in relation to employment practices, compensation and benefits should be kept entirely confidential.

The Competition Commission encourages all parties to report suspected anti-competitive arrangements related to employment. 


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; and financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

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