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Co-Ownership, Estoppel, and Easements: The CFA Clarifies the Limits of a Co-Owner’s Power

Commentary on Wong Wai Ying Anita & Ors v So Kwai Chung & Anor [2025] HKCFA 8



In a landmark decision handed down on 20 May 2025, the Hong Kong Court of Final Appeal (CFA) in Wong Wai Ying Anita & Ors v So Kwai Chung & Anor [2025] HKCFA 8 addressed a novel and significant question at the intersection of co-ownership and proprietary estoppel: can one tenant in common unilaterally create an easement over co-owned land that binds the other co-owner, even where the latter had no knowledge of the promise?

The CFA’s unanimous judgment, delivered jointly by Lam PJ and Keane NPJ, and endorsed by the Chief Justice and other Permanent Judges, affirms that such a right may indeed bind the non-consenting co-owner—provided it does not interfere with their possession or enjoyment of the land. This decision not only clarifies the scope of a co-owner’s power but also reinforces the equitable principles underpinning proprietary estoppel in the context of informal land arrangements, particularly in the New Territories.

Factual Background: A Village House and a Blocked Right of Way

The plaintiffs were purchasers of a village house (House No. 456) in Yuen Long. The only vehicular access to the house was via a strip of land (Ds’ Land) co-owned by the first and second defendants (D1 and D2) as tenants in common. Prior to the sale, D2 (but not D1) assured the plaintiffs that they would have a permanent right of way over Ds’ Land. This assurance was formalised in a pre-sale agreement and relied upon by the plaintiffs in completing the purchase.

For ten years, the plaintiffs used Ds’ Land without objection. In 2018, D1 unilaterally blocked the access with concrete barriers, prompting the plaintiffs to seek declaratory and injunctive relief. The trial judge and the Court of Appeal both found in favour of the plaintiffs, holding that D2 was estopped from denying the right of way and that D1, though not a party to the assurance, was nonetheless bound.

The Legal Issue: Can One Co-Owner Bind Another?

The CFA was asked to determine:

  1. Whether a proprietary estoppel arising from the promise of one co-owner (D2) could bind the other co-owner (D1), who had no knowledge of the promise; and
  2. Whether D1’s prolonged inaction could itself give rise to a proprietary estoppel by acquiescence.

The plaintiffs did not argue that D1 was directly estopped. Instead, they relied on the principle that a co-owner may grant rights over their share of the land, provided such rights do not interfere with the other co-owner’s enjoyment. The CFA accepted this argument, drawing on Australian and English authorities, including Hedley v Roberts [1977] VR 282 and State of New South Wales v Koumdjiev (2005) 63 NSWLR 353.

The CFA’s Reasoning: Unity of Possession and Reasonableness

The Court reaffirmed the principle that tenants in common enjoy unity of possession, meaning each co-owner is entitled to use and enjoy the whole property, subject only to not excluding the other. A co-owner may grant rights to third parties, including easements, so long as:

  • The grant is reasonable and incidental to their own use and enjoyment; and
  • It does not materially interfere with the co-owner’s rights.

In this case, the CFA found that the right of way granted by D2 was consistent with the historical and practical use of the land. Both D1 and D2 had previously allowed similar access to other properties. The land in question had no viable use other than as a means of access. Thus, the grant did not exceed D2’s “proper share” of enjoyment, nor did it prejudice D1’s rights.

The Court also noted that D1’s decade-long acquiescence to the plaintiffs’ use of the land further supported the conclusion that the right of way was reasonable and non-intrusive.

Proprietary Estoppel and Successors in Title

Importantly, the CFA extended the relief to bind not only D1 and D2 but also their successors in title. This ensures that the plaintiffs’ right of way remains enforceable in the event of future sales of either the dominant or servient tenement. The Court emphasised that such protection was necessary to prevent the plaintiffs from suffering detriment due to the loss of access, which had been a critical factor in their purchase.

Implications for Property Law and Conveyancing Practice

This decision has far-reaching implications for co-ownership, informal land arrangements, and the doctrine of proprietary estoppel:

  1. Clarification of Co-Owner Powers: The CFA has confirmed that a co-owner may unilaterally grant rights over co-owned land, including equitable easements, provided they do not interfere with the other co-owner’s enjoyment. This provides much-needed clarity in a previously unsettled area of law.

  2. Reinforcement of Estoppel Principles: The judgment underscores the flexibility and remedial nature of proprietary estoppel, particularly in land transactions where formalities are lacking but reliance and detriment are clear.

  3. Practical Guidance for Conveyancers: Practitioners advising on village house transactions or co-owned properties must be alert to informal assurances and long-standing usage patterns. Where access rights are critical, formalisation through deed or registration remains best practice, but equitable remedies may still be available.

  4. Successors in Title: The Court’s willingness to bind successors in title enhances the security of equitable rights and aligns with the broader trend of recognising estoppel-based interests as having proprietary consequences.

Conclusion

Wong Wai Ying Anita v So Kwai Chung is a landmark decision that harmonises equitable doctrine with the practical realities of co-ownership and informal land use in Hong Kong. It affirms that equity will intervene to prevent unconscionable outcomes, even where formal legal rights are absent. For property lawyers, conveyancers, and landowners alike, the case serves as a powerful reminder of the enduring relevance of fairness, reliance, and reasonableness in the law of property.

Footnotes

  1. Wong Wai Ying Anita & Ors v So Kwai Chung & Anor [2025] HKCFA 8, at [57]–[58].
  2. Ibid, at [25], [63].
  3. Ibid, at [53]–[54].
  4. See also Bull v Bull [1955] 1 QB 234; State of New South Wales v Koumdjiev (2005) 63 NSWLR 353.
  5. Guest v Guest [2024] AC 833, at [10], [94].
  6. Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1, at [72].

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