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News //
Property and Building Management Law Alert - June 2017
Submitted by // K Bowers, Partner / Solicitor Advocate
28 June 2017


USE IT OR LOSE IT!

Not so easy to claim possession over rooftops that are not reasonably useful to anyone

Introduction

This case concerned an application for judgment in default of the Defendant giving notice of an intention to defend a Court action. The relief claimed by the Plaintiff was that it had acquired the ''possessory title'' of the rooftop (''Rooftop'') of a factory building (''Building'') by way of adverse possession. The Plaintiff was the registered owner of several units on the top floor of the Building. The Defendant was the registered owner of the Rooftop (among other parts) of the Building, who could not be found in the course of the proceedings.

Plaintiff's Application

The Rooftop in question was essentially a ''concrete slab'' with no proper fencing or other means of protection to prevent people or objects from falling off its edges. The Court held that there was no sound basis for suggesting that the Rooftop was reasonably safe for ordinary daily activities usually associated with properly fenced-off rooftops, such as parties, or other gatherings.

There were also pipes on the surface of the Rooftop, and the Plaintiff did not dispute that they were for the common use of the occupiers of the Building.

In support of its application, the Plaintiff relied upon the following as its conduct of excluding others from the Rooftop and in support of its claim for adverse possession:-
(1) hanging a plastic chain along the edges of the Rooftop with notices stating "Danger Do Not Come Close";
(2) installing air-conditioner units on the Rooftop;
(3) spending a substantial amount of money to replace the water-proofing layer (''Water-Proofing Layer'') on the surface of the Rooftop; and
(4) locking the only entrance to the Rooftop.

Previous Authority

The Court cited the previous Court of Final Appeal (''CFA'') decision in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007), a case in which the appellant also sought adverse possession of the rooftop of a building. The appellant's alleged acts of possession in this CFA case included holding gatherings for residents, allowing other residents to use the roof for drying clothes, and installing a central antenna for television aerials. The appellant was unsuccessful in the lower courts, and the CFA also dismissed the appellant's appeal.

The main reason for the dismissal of the appeal was that the alleged acts of possession ''…plainly do not constitute or demonstrate the necessary factual possession or requisite intention to possess''. The CFA also added that the rooftop in question must have been reasonably safe for carrying out the alleged acts of possession, and that the erection of a central antenna by the appellant was ''…no more than an individual act of minor trespass to the parapet walls'' which did not amount to an act of possession.

Decision

The Court ruled that the Plaintiff's alleged acts of possession in this case were even more ''obscure'' than that of the appellant in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, in circumstances where the physical condition of the Rooftop was not designed or built in a way which would render it reasonably useful to anyone, except for the building manager, who could visit the Rooftop from time-to-time for the repair and maintenance of common facilities (such as the pipes and the Water-Proofing Layer). Consequently, the Plaintiff failed to persuade the Court that its alleged acts of possession of the Rooftop should amount to adverse possession.

Identification of the part of the property subject to a claim for adverse possession

The Court also observed another flaw in the Plaintiff's submission in relation to the Water-Proofing Layer on the Rooftop. The Plaintiff submitted that:-
(1) it had spent a substantial amount of money to repair the Water-Proofing Layer; and
(2) the building manager was ''permitted'' to access the Rooftop to perform repair and maintenance.

The Court questioned whether the conduct at (1) and (2) above concerned the same part of the Rooftop, as the obligation of a building manager to repair is usually limited to the common parts of a building. Therefore, the Court doubted whether the Water-Proofing Layer was a common part, or a part of the Building which was actually owned by an individual co-owner. If the two types of conduct concerned different parts, then the Plaintiff's claim for adverse possession (even if successfully established) did not extend beyond the part not owned by the Defendant. In this regard, the Court held that the Plaintiff had failed to properly identify the property it claimed to adversely possess, which in itself was a good ground for refusing the relief sought.

Comment

This case demonstrates that the physical condition of a building is important to the Court's decision in a case in which adverse possession is claimed. If the physical condition of a rooftop (in this case) suggests that it is not built or designed in a way which would make it reasonably useful to anyone, it will be difficult to persuade the Court to accept acts sufficient to establish actual possession, or the requisite intention to possess. The case also demonstrates that it is important to precisely identify the property allegedly adversely possessed, and that failure to do so should be a good ground for refusing an application for adverse possession.

 

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