Demystifying the doctrine of encroachment

Abstract

The doctrine of encroachment is generally regarded as an obscure and confused doctrine. The enigma is particularly acute where a tenant encroaches upon the landlord's other lands. In Secretary of Justice v Chau Ka Chik Tso, the Court of Final Appeal was divided as to how the doctrine may coexist with our understanding of how adverse possession normally operates. This note examines the reasons of both the majority and the minority and seeks to explain why, despite its novelty, the majority's reasoning is to be preferred. Despite the majority's hesitation, it also endorses Ribeiro PJ's rejection of the controversial "no adding - up rule" that is thought to limit the doctrine's application. In the process, it also suggests that the Hong Kong courts reflect upon some other aspects of both the doctrine of encroachment and the doctrine of adverse possession.