In Law Bing Kee v Person(s) in occupation of RP ([2013] HKEC 405, CFI) P was the registered owner of the disputed land (part of a larger portion owned by him). D’s predecessor as owner of neighbouring land had, in 1954, fenced off the disputed land and included it within the area of the farming activity carried on on the neighbouring land. A temporary structure was placed on the land by the predecessor in the 1980s. The fence fell into disrepair in the 1980s and the land ceased to be put to specific use. The predecessors did, however, rent out the temporary structure. Significantly, P’s title was the subject of a New Grant in 1985 so the limitation period could only start running then. P sought possession. D’s counterclaim relied on adverse possession of the disputed land.
The court considered section 38A of the Limitation Ordinance. The twenty year limitation period had not been completed by 1 July 1991. The time period remained twenty years and this carried on running after 1 July 1991: ‘[o]nly in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.’ ([36] per Recorder Ambrose Ho SC).
The fencing was an unequivocal assertion of possession ([40]).
The winding down of the use in the 1980s did not amount to an abandonment of possession: ‘what is required to establish possession is the taking of possession, and not continuous use.’ ([42]) P’s occasional presence to trim the trees did not amount to a taking back of possession ([43]).
D’s counterclaim succeeded.
