Adverse Possession: Mind Your Property

How is it possible that someone can end up rightfully possessing land by being a trespasser? Strange as it may be, this is possible under the centuries-old doctrine of adverse possession. Adverse possession allows someone to obtain a right to possess land by occupying it long enough under the Limitation Ordinance (Cap.347) to "extinguish" the original owner's title. Under the Limitation Ordinance, actions for recovery of land by any person are statute-barred after 20 years from the date the right of action accrued, if the action accrued before 1 July 1991. Where the right of action accrued after 1 July 1991, the prescribed period is 12 years.

Adverse possession - evidential burden

In order to establish adverse possession, it requires proof of two stages:

the occupier has possessed the land as a matter of fact; and the occupier had the intention to possess the land to the exclusion of the whole world including the true owner. Possession as a matter of fact

The occupier must show a degree of physical control of the land. Enclosure is said to be the strongest possible evidence of adverse possession but it is not indispensable (Seddon v. Smith [1877] 36 LT 168). The possession must be "adverse" (to put simply, it must be unlawful) - if the possession is with the permission, consent or license from the owner, it will not give rise to a claim in adverse possession. Possession must also be open and not secret, so that the owner has the opportunity to challenge the adverse possession within the limitation period.

Intention to possess

Apart from physical possession, the claimant must also show that he or she has the intent to possess the land to the exclusion of all other persons, including the true owner. Clear and affirmative evidence is required to show that such an intention to possess has been sufficiently clear to everybody, in particular to the attention of the paper owners. It was held by the Court of Final Appeal in Hong Kong that there was no intent to possess where an occupier admitted he or she would pay rent if the true owners had requested it. It demonstrated the occupier had no intention to exclude the paper owner, and treated oneself as enjoying possession under a lawful title.

However, the position in the UK seems to be different. It was held by the Court of Appeal of UK that it is not necessary for the occupier to show that he intended to own or acquire ownership of the land (Buckinghamshire CC v. Moran [1990] Ch 623). It has also...