Land Boundary Disputes: Formation and Land Grants

Land Boundary Disputes: Formation

• Land boundary disputes often arise from unclear documentation and survey issues
• Old surveying methods involved plain table surveys and survey chains prone to errors
• Small-scale maps led to boundaries being mapped coarsely at scales like 1:3960 and 1:1980
• Errors in records can cause discrepancies, such as the Lintock case involving a 0.127-acre vs 1.27-acre mix-up
• Missing records, like lost DD sheets, cause unclear land locations, as seen in the Ngong Ping case

Land Grants

• Block Government Leases (BGL) in 1905 standardized leases but lacked proper boundary surveys
• A fixed boundary system was introduced, but boundary surveys were not conducted
• Land grant plans are for identification only, lacking legal binding
• Double grants involved giving the same land to two parties like in the Tam Mo Yin case

Urban Land and Lease Problems

• Old leases lacked geo-referencing with coordinates not included until the 1960s
• A lack of lease surveys related to manpower shortages
• Solicitors rather than surveyors were handling land divisions, leading to division errors

Disputes and Rising Land Value

• Increased land prices after the 1970s led to more fencing and land hoarding
• Mistaken trespass arises from misinterpretation of boundaries, under the Doctrine of Encroachment
• Intentional trespass is related to Adverse Possession, the unlawful occupation of land long enough to claim rights

Court Decisions vs. Alternative Dispute Resolution (ADR)

• A court decision involves formal litigation handled in court
• Court decisions are final and legally binding but can be expensive and time-consuming

ADR Methods

• Expert Determination: A single expert provides professional judgement, but the outcome is non-binding
• Mediation involves a neutral mediator who helps both sides negotiate. It is cost-effective and preserves relationships, but results are non-binding
• Arbitration: A professional arbitrator makes a binding decision like a private court, but it can still be challenged in court
• Negotiation: Both parties discuss a settlement which is the cheapest and fastest method. No expert input is involved, and results are not legally binding

FIRAC Legal Analysis Model

• FIRAC consists of Fact, Issue, Rule, Application, and Conclusion
• Fact: includes basic case details, such as and history, records, and surveys
• Issue: The key legal question, for example "who owns this land?"
• Rule: Relevant laws, like the Limitation Ordinance Cap. 347
• Application: How the law applies to the case
• Conclusion: The final ruling based on evidence

Tam Mo Yin Case Example

• Facts: Land Lot 1510, Yuen Long, was auctioned in 1931, but the original records were lost
• Issue: The question of if the land is part of the original lot and whether Cap. 152 affects the claim
• Rule: The Scarf v Adams case stipulates that no outside evidence can override a land transfer document, where Cap. 152 may reset occupation periods
• Application: Evidence showed unclear land records, and Cap. 152 interrupted the claim
• Conclusion: The plaintiff had paper title but not possessory title

Role of Expert Witness in Land Disputes

• Land surveyors define boundaries using historical records and modern measurements
• Land surveyors act as a neutral expert to help both parties agree on the boundary
• Land surveyors give professional evidence including aerial images, land records, and past surveys
• They remain independent and impartial to not favor either party
• Land surveyors assist the court by explaining technical land boundary details

Adverse Possession

• Adverse possession: Occupying land unlawfully for a long period may allow the possessor to claim possessory title
• Possessory title ≠ Ownership: It only allows the right to use the land, not full legal ownership
• If the possessor leaves the land, ownership returns to the original owner

Three Elements of Adverse Possession

• Limitation Period: Legal owner loses ownership rights if they do not act for a set time
• Intention to Possess: The occupier must show they control the land without permission
• Exclusive Possession: The possessor must physically exclude others, for example, with fencing and locked gates

Adverse Possession Difficulties for Tso & Tong Land

• Tso land is ancestral land for male family members
• Tong land is village-owned land shared among members
• Legal barriers: New male heirs reset the 24-year limitation period, per the Limitation Ordinance Cap. 347, where elderly deaths extend time limits further, per Cap. 152

Doctrine of Encroachment vs. Adverse Possession

Silent Consent

• If landowners remain silent, they risk losing their rights where the Limitation Ordinance states that if no action is taken within 12 years, the squatter may gain title
• Legal Action Required: Order 113 from the High Court must reclaim land before time runs out

Land Surveyor's Role in Adverse Possession Cases

• Land surveyors define the boundary by comparing historical and modern records
• Land surveyors gather evidence with old maps, aerial images, and occupation records
• Land surveyors distinguish encroachment vs adverse possession by proving whether the occupation was a mistake or intentional

Summary

• Inaccurate land boundary disputes happen due to surveys, missing documents, and rising land value
• ADR methods like expert determination, mediation, arbitration, and negotiation save time versus court cases
• FIRAC: Fact, Issue, Rule, Application, Conclusion, is used to analyze legal disputes
• Adverse Possession requires a Limitation period, intent to possess, and exclusive use
• Encroachment = Mistaken Boundary, where Adverse Possession = Intentional Takeover
• Landowners must take action (Order 113) before limitation periods expire