The importance of exclusive control in adverse possession
Cheung Kwan Yin (張坤炎) and another v Santa Fong Co Ltd  HKCU 1512
This case involves an application for possessory title over land on the basis of adverse possession.
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.
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.
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