In Cheung Kwong Yuen v Sun Hui Fang ([2016] 1 HKLRD 464, CA) C was the registered owner of one floor of a property and of the roof above it. S lived in a room on the roof. C had applied for an order for vacant possession of the room despite S’s claim to have extinguished C’s title by adverse possession. S claimed that her brother had bought the flat in 1992. She relied on an informal and unregistered document purporting to transfer title to him. The Lands Tribunal ordered S to leave the property: it held that adverse possession was not available to one who claimed to be a tenant or purchaser of the property. The Court of Appeal (Kwan JA giving the Court’s reasons) pointed out that this was a mistake as to the law and ordered the case to be retried in the District Court. ‘There is no rule of law that [factual possession and intention to possess] cannot be established for a person who mistakenly believes that he has good title or that he is a lawful tenant and does not realise he is trespassing on another’s land.’ ([11]).
Michael Lower
