Introduction
Our articles entitled “Adverse Possession and the Proposed Reform” published in January 2013 and “Can Adverse Possession be Claimed in respect of Common Parts in a Building?” published in September 2013 discussed the doctrine of adverse possession and whether adverse possession could succeed in respect of common parts in a building. This article seeks to analyse whether adverse possession can be claimed in respect of the surface of a wall.

Facts
In a recent case of Global Trading Offshore (PTC) Ltd v All Persons in occupation of Wall Shop (adjoining Shop G) on Ground Floor of Savoy Mansion, No.49 Carnarvon Road, Kowloon, Hong Kong and Cheung Wing Keung Peter DCMP 2043/2013, the Court had to decide whether there could be adverse possession of an external wall. 

The area in dispute was the Wall Shop which was at the external wall on a scavenging lane between Nos. 49 and 51 Carnarvon Road and which was adjoining Shop G on Ground Floor of No.49 Carnarvon Road. When the Wall Shop was acquired by the Plaintiff’s predecessors-in-title in 1971, the Wall Shop was already rented to a business called “Chan Kee” which operated a fruit stall at the shop directly across from the Wall Shop on the other side of the scavenging lane. In 2000, the Wall Shop was transferred to the Plaintiff subject to a tenancy with Chan Kee. No rent had been paid to the Plaintiff since July 2005 while the Wall Shop was occupied by Chan Kee and subsequently by Chan Kee Fruit. As a result, the Plaintiff commenced the present action against the sole proprietor of Chan Kee Fruit (the “2nd Defendant”) for trespass in 2013 to recover the possession of the Wall Shop. The 2nd Defendant argued that he had never been demanded to pay nor had he paid any rent for the occupation of the Wall Shop. He also argued that he had been in adverse possession of the Wall Shop since 1980, so the Plaintiff had lost its right to recover the possession of the Wall Shop.

Legal Principles
In Sunbroad Holdings Limited v Unknown Occupiers & others [2012] 2 HKLRD 599, the plaintiff was the owner of an external wall whereon the defendant, without the plaintiff’s consent, erected two metal boxes and a canopy. The defendant argued that he had adversely possessed the external wall as he had been in exclusive possession of and had been using the external wall without interruption even though there was no consent from the plaintiff.  The Court of Appeal upheld the Court of First Instance’s decision that adverse possession could not apply to a vertical plane or surface such as the external wall in question. While it was possible to grant a lease of a wall which lease was in effect a lease of the ground on which the wall was standing, it was not possible to create a lease of the bare surface of a wall because the surface of its very nature had no depth or breadth of soil to support it, thus no estate or interest in land could be created. As such, just as there could not be a lease of the surface of a wall, there could not be adverse possession of such surface. 

Discussion

Issue (1): Whether there could be adverse possession of an external wall
The Court in the present case adopted the principles in Sunbroad and held that since the Wall Shop was in fact the external wall of No.49 Carnarvon Road, it could not be adversely possessed. 

The 2nd Defendant cited the case of Bridam Ltd & Anor v Sa Sa Cosmetic Co Ltd & Anor [2014] 1 HKC 305 in an attempt to distinguish the application of Sunbroad to the present case by arguing that his occupation of the Wall Shop had certain degree of attachment to the Wall Shop.   Sunbroad was distinguished by the Court of First Instance in Bridam on one of the grounds that no evidence on the method or degree of attachment was adduced in Sunbroad whereas it was argued in the latter case that bolts and nuts were driven into the wall.  

The Court disagreed that Sunbroad did not involve any attachment to the external wall. In fact, the construction of the metal boxes and canopy on the external wall in Sunbroad must have involved bolts and nuts being driven into the wall. The Court found that the facts of Sunbroad were similar to the present case and held that, as a matter of law, the surface of an external wall could not be adversely possessed.

Issue (2): whether the 2nd Defendant had established adverse possession of the Wall Shop
While the Court had ruled that the surface of an external wall could not be adversely possessed by the 2nd Defendant, the Court nevertheless dealt with the second issue, i.e. whether the 2nd Defendant had established adverse possession. The Court found that the rental payment records produced by the Plaintiff showed that money was received by the Plaintiff from Chan Kee and this inferred the existence of a tenancy between the Plaintiff and Chan Kee. Therefore, the possession of the Wall Shop by Chan Kee could not be adverse possession. Even though the 2nd Defendant might rely on the possession of the Wall Shop by Chan Kee Fruit since 2009, he had not been in adverse possession for the requisite period of 12 years before the commencement of the present case as required under section 7(2) of the Limitation Ordinance. Therefore, the Court ruled that the occupation of the Wall Shop by the 2nd Defendant was by way of trespass and the Plaintiff was entitled to have vacant possession of the Wall Shop.

Conclusion
Global Trading illustrates that adverse possession cannot be claimed in respect of the surface of an external wall by the mere act of attaching structures to such surface. However, it remains undecided as to whether an occupier can argue that insofar as certain structures are attached to the wall by means of nails or screws, there had been adverse possession to the thickness of the wall by the intrusion of such nails or screws.  The Court of Appeal in Sunbroad did not have a ruling on this argument because such argument was not raised in the first instance or in the notice of appeal while Global Trading is a judgment from the District Court following Sunbroad. We wait to see if there will be any decision on this argument from a higher court in the future.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.