In Chan Hau Ling v 劉西 ([2015] HKEC 1095, CFI) P had been in possession of a flat since 1999. Initially this was as a tenant but she remained in possession long after losing contact with the landlord who had gone abroad. She lived elsewhere from 2003 but remained legally in possession. By 2008, huge arrears of management fees had built up. D agreed to clear the arrears in return for possession for two years. Following this agreement, P allowed D into possession. D remained in possession at the end of the two years and P brought possession proceedings. She succeeded.
If she was in possession in her own right, she clearly had the right to recover the property from a later possessor (Asher v Whitlock; Mabo v Queensland (No 2)). If she was in possession pursuant to a licence she also had a right to recover possession from a later possessor even if she was not in actual occupation (Manchester Airport plc v Dutton) ([35] – [38]).
D argued that even though there was no question of an adverse possession defence (given the short time period involved) P had abandoned the property in 2008. On D’s version of events, she had simply wanted to divest herself of the burden of responsibility for the property and D had taken over possession on this basis. This argument failed both because the court rejected the factual basis and because the defence of abandonment was unsupported by authority ([45]).
D had clearly entered the property pursuant to an agreement. Whether as tenant or as licensee, D was estopped from denying Ps’ title and from resisting P’s claim for possession ([60]).
D was ordered to give up possession of the property to P and to pay mesne profits at the rate of the market rental for the property for the period after the end of the two year period.
Michael Lower
