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Adverse possession cases expected to rise as land disputes between squatters and landowners increase

By Silvia Li and Frances Sit

At first glance, Ching Kee seems like a­n ordinary neighbourhood food stall. Boxes of fruit are piled in the front of the shop. The blender whizzes away to produce the store’s signature fruit juice mixes. But look closely at the menu and two items stand out: “After the bitter comes the sweet” (苦盡甘來) and “Kept you” (留得住你). The names of the drinks tell the story of how the store’s owners fought for and kept this 100 sq ft store on the ground floor of Ka Ming Court, an industrial building in Lai Chi Kok.

They managed to do so by claiming adverse possession, or squatters’ rights.

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The Yeungs in front of Ching Kee

Owner Yeung Mau-cheong, who is in his 70s, has worked in the store for 46 years. He and his mother started the business in 1967 on what was then wasteland. Four years later, Ka Ming Court was built around the food store, incorporating it into a part of the building’s ground floor.

The store means a lot to Yeung and his family. It is where he met his wife, Lam Yuet-ching, known affectionately as Sister Ching. Lam recalls how Yeung would serve her drinks from the stall so he could talk to her. Lam took over the running of the stall from her mother-in-law in 1983 and it was named Ching Kee after her.

While running the stall, Yeung and Lam have raised four children. They have also made firm friends with their customers, with whom they regularly play mahjong and go to have dim sum.

One day in 2009, Yeung started receiving lawyer’s letters from the owners’ corporation of Ka Ming Court. The letters claimed the land on which Ching Kee was operating did not belong to the Yeungs but was part of the public area of the building. They warned Ching Kee would be torn down if the Yeungs refused to leave.

After several attempts to reach an agreement with the owners’ corporation failed, the Yeungs felt they had no choice but to fight back using a method suggested by one of their customers – adverse possession.

Adverse possession is a way of acquiring ownership of a piece of land by occupying it for a certain period of time without the consent of the landowner. The Limitation Ordinance (Cap 347) states that if the landowner takes no action to recover his land, his legal title would expire after a period of time.

The required minimal period is 12 years for private land and 60 years for government land in Hong Kong. According to the Law Reform Commission, 74 adverse possession disputes were brought to court between 2007 and 2011.

The Yeungs took their case to court in 2010 and after three years of hearings, they persevered. In the Yeungs favour was the fact they had water and electricity bills to prove their encroachment on the land; also, they had never been asked to pay rent although the owners’ corporation had long known of the shop’s existence.

“Justice exists in everyone’s heart,” Yeung says. “You don’t have any reason to take away the store we’ve been in for so long.”

The Ching Kee case is extraordinary as few adverse possession disputes are found in favour of the squatters. Chan Wai-ming, who is in his 50s, runs a farm, “Tin Heung Garden”, on around 60,000 square feet of land in Ma Tin Bok Village, Yuen Long.

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Chan Wai-ming walking in his farm

Thinking it was a piece of abandoned land, Chan’s uncle began farming on it in 1999. Four years later, he told Chan to take over and farm the land. Chan cut away the grass, ploughed the land, set up a drainage system and has been farming it till now. He lives with six family members in a small hut on the farm and has planted over 200 varieties of fruits and trees.

Chan’s peaceful rural life ended when a dozen muscular men came to his farm last year, and threatened him and told him to leave. Chan had no idea where they came from or why they wanted him to go.

Following the incident there was a notice from the Town Planning Board about an application to change the land use from farmland into residential land. It was only when he read the news that property tycoon Lee Shau-kee, the chairman of property giant Henderson Land, was donating the land to the Housing Society that he realised that the land he farms belongs to Lee.

 

Henderson Land owns many plots in the New Territories and earlier this year, Lee proposed to donate farmland in Yuen Long to build 1,000 affordable homes for young buyers.

At that point, Chan said nobody had approached him to negotiate and he was adamant that he would not move.

Elsa Ko, a member of Ma Tin Pok Villagers Concern Group, has been assisting Chan on the case. She says that she spoke to lawyers and they thought Chan had a potential adverse possession case. However, Henderson has now opened negotiations and mindful that the legal process would be long and costly, Chan is applying for legal aid to hire a lawyer for the negotiations.

Disputed land ownership does not just pose challenges to plans to develop the New Territories, but also to urban renewal. The area of Yue Man Square in the Development Area Five of the Kwun Tong Town Centre project is a good example.

The Yue Man Square Chaos

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The pathway between Yue Man Building and Yue Wah Mansion

Varsity visited the site after hearing about an adverse possession dispute between a local pharmacy, Victory Medicine, and the owners’ corporation of Yue Man Building.

Yue Man Square is the old town centre of Kwun Tong. At the heart of the square are three commercial-residential buildings — Yue Man Building, Yue Wah Mansion and Kwok Tai Building. Between these buildings are three pathways no more than five feet wide. They provide convenient access between Yue Man Square and Kwun Tong Road.

More than 30 old shops can be found along the three pathways including Victory Medicine. The pathway between Yue Man Building and Yue Wah Mansion is further divided into two paths by fruit stalls located at the middle of the path.

Land ownership and land boundaries in the zone are disputed – nobody knows who the true owner of the pathways and the stores lining them is.

Varsity spoke with 11 store owners along the pathways and found the current owners had either bought the shops from the previous occupants, or rent from them. While some of them say that their stores belong to the private buildings, others think their stores are on government land. Many say they do not know who owns the land.

Wong Ying-kit has owned his bag shop for the past 20 years. The 72-year-old says he will follow suit if Victory Medicine wins its adverse possession case. “I have to wait for the verdict. If it is the death penalty, then of course I won’t follow,” Wong says. He believes that his shop belongs to Yue Wah Mansion.

Some of his neighbours are less upbeat. The owner of a sock shop, Fong Kee, says she does not think the pharmacy will succeed. Her mother occupied the land more than 40 years ago and she is unsure if the pathways are on government land or land that belongs to the private buildings.

“The Urban Renewal Authority must know whether the land is public or private, but they did not tell us,” she says. She hopes it is private land, so that she will be entitled to more compensation for the redevelopment.

To clear up their confusion, Varsity contacted the district councillor responsible for Kwun Tung Central, Nelson Chan Wah-yu to ask about land ownership. Chan said he does not know how to answer the question and suggested the questions be directed to the Urban Renewal Authority. “The situation is very messy. We cannot make it clear in a few words,” he said.

The Urban Renewal Authority replied that, “the shops are located on different boundaries, we cannot tell if the places they occupy generally are on government land.” They added the shopkeepers do not possess formal ownership of the shop space and the department would handle those cases when they carry out land resumption in Development Area Five.

However, the Lands Department says the three pathways do have private ownership. This would mean that it is likely the shops in the pathways are potential adverse possession cases, as the required occupied period for private land is only 12 years.

Could this lead to a spate of adverse possession disputes? Will the store owners be able to obtain more compensation as a result? They have little time to stake their claims as the Urban Renewal Authority will start the redevelopment work in Area Five in 2015.

While the squatters may protect their livelihood under the adverse possession law, the original landowners are stripped of their rights. This could leave the public with the impression that, depending on the passage of time, the law validates wrongful possession by aggressive squatters.

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With this concern in mind, the Adverse Possession Sub-committee of the Law Reform Commission is considering reforms to the law. The sub-committee suggests following the current British laws of adverse possession where the squatter has to notify the land owner of their intention to apply for adverse possession after 10 years of occupation.

Edward Chan King-sang, the chairman of the sub-committee, welcomes the reform from the perspective of respecting private property. “If you have left your wallet in the car and I have stolen it, it is still considered theft,” says Chan, “I can’t rationalise the theft and say you lost your wallet because you left your wallet in the car and didn’t take good care of it.”

His view is echoed by Professor Michael Wilkinson, a member of the Sub-committee who is also a law professor of the University of Hong Kong.  “It is a detriment to squatters. But on the other hand, squatting can be argued to be theft,” says Wilkinson. “Imagine I steal your diamond ring, and the law said after 12 years it’s mine! You wouldn’t like that.”

But legislator and barrister Ronny Tong Ka-wah disagrees. “This is a matter of social justice,” says Tong. “It [the reform] is totally unfair and it is equivalent to eliminating the law of adverse possession altogether.” He adds that the majority of the squatters are poorer people.

Opinions differ on whether adverse possession is a way to ensure squatters have a chance to defend their homes and livelihoods and prevent the hoarding of land, or as an act of theft. But what can be agreed upon is that with Hong Kong’s numerous development and renewal plans, an increase in adverse possession disputes is likely. It is a matter of time, as Wilkinson says, before the “major debate of fundamental principles of adverse possession” falls upon our community.

Edited by Vivian Ng