In Tang Tak Sum v Tang Kai Fong ([2014] HKEC 1977, CA) P and D were tenants in common of land. D operated the land as a car park and kept all of the income from this use. P now sought an account of the income and expenditure concerning the land. D conterclaimed that it had defeated P’s title by adverse possession.
The adverse possession claim failed. In principle, a co-owner’s possession is explained by the fact of ownership and is not adverse to the title of other co-owners (Cheung JA [34]). There needs to be a dispossession (actual ouster in the case of co-ownership) ([37]). In a case, such as the present, this could be shown where a co-owner who has received the income from the land has refused to accede to a co-owner’s demand for his or her rightful share. It might also be shown, depending on the facts of the case, where one co-owner has retained all of the income for a long period of time even though there has been no demand ([36] – [37]). In this case, however, there had been no ouster. P had made visits to the property and parked there without payment and this was an exercise of the right to possession; the slightest acts of the owner of the paper title are enough to counter the assertion that that owner has been dispossessed ([39]).
D was under a duty to account to P: ‘the duty by a co-owner to account to another co-owner for rent received by him arises where there is an agreement making him the bailiff of the other’ ([46]). There was evidence to show that D had been charged as bailiff with collection of the rents ([49]).
Michael Lower
