Andrew John Hanam v Lam Vui and another

Belinda Ang Saw Ean J:

[1] This case concerned a pair of semi-detached properties known as No 2 and No 4 Thomson Green, Singapore. The plaintiff is the owner of No 4, which is a three-storey semi-detached house. The defendants’ property, No 2 is a two-storey semi-detached house. There is a two-storey dividing wall between No 2 and No 4 (“the party wall”). The party wall does not go fully up to the third storey of No 4. A side wall of the third storey of No 4 (that is exposed to the elements) sits above the plaintiff’s side of the party wall (“the extended side wall”).

[2] The plaintiff had complained of leaks in No 4. According to the plaintiff, his contractor advised that the egress of water was either from the extended side wall, or from the area where the extended side wall meets the party wall. The defendants had refused to permit the plaintiff’s contractor access to No 2 in order to inspect the party wall from the side of No 2.

[3] The plaintiff commenced Originating Summons No 92 of 2013 (“OS 92”) to gain access to No 2 for the following purposes:

(a) to carry out inspection of the party wall including the top of the party wall;

(b) to carry out tests to determine whether the water leakage is coming from the top or any part of the party wall;

(c) to carry out repairs to the party wall; and

(d) to carry out repairs to the extended side wall.

[4] Before this court, the plaintiff conceded that the extended side wall was not a “party wall” within the meaning of s 104 of the Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”).

[5] The plaintiff asserted an implied easement “for party wall purposes” that was “necessary for the reasonable enjoyment” of his property pursuant to s 99 of the LTA. As such, the plaintiff claimed to be entitled to the relief sought in OS 92 to enter No 2 to access the roof in order to inspect the party wall to determine the source of the leaks and to carry out the necessary repairs, including waterproofing the extended side wall.

[6] The relevant provisions of s 99 of the LTA read:

[7] The defendants contended that the plaintiff had not proven that the water egress was from the party wall seeing that there was no water damage on the defendants’ side of the party wall. The defendants disagreed with the plaintiff’s reading of s 99, and consequently rejected the allegation of an implied easement for party wall purposes in the nature contended by the plaintiff. To the defendants, the leaks in No 4 were possibly due to alterations and/or renovations to the third storey of No 4 rather than caused by a defect in the party wall.

[8] On 5 March 2013, counsel for the defendants, Mr Bernard Sahagar (“Mr Sahagar”), informed the court that the defendants would grant access to a registered building surveyor and/or engineer, if one was engaged by the plaintiff, to identify the problem and to propose a permanent solution. The defendants’ offer was rejected by the plaintiff, a lawyer who represented himself in OS 92.

[9] On 12 May 2013, I dismissed OS 92. The plaintiff has appealed against my decision.

[10] The plaintiff experienced leaks in his home in March 2012. On or before 14 March 2012, the plaintiff’s wife explained the problem to the first defendant and requested access to investigate the leaks and carry out repairs to the party wall and/or extended side wall. The first defendant, however, wanted the plaintiff to write to him.

[11] On 14 March 2012, the plaintiff wrote to the first defendant. He sought permission for his contractor to enter No 2 and carry out repair works “to the external façade of the boundary wall”. The first defendant indicated willingness to grant permission but it was conditional upon the plaintiff and his contractor providing the first defendant with an undertaking to repair any damage caused to the roof of No 2, and a banker’s guarantee of $5,000 to secure this undertaking. The first defendant’s conditions were precautionary, having had a bad experience with leaks in his roof caused by the previous owner of No 4.

[12] On 19 March 2012, the plaintiff replied under the letterhead of his own law firm rejecting the conditions imposed by the first defendant. At the same time, his law firm issued a formal demand for access to No 2. The plaintiff threatened to commence legal proceedings if no favourable response was forthcoming. The defendants did not reply. No proceedings were commenced immediately after the expiry of the plaintiff’s deadline.

[13] Following this legal demand were some unsuccessful attempts by the plaintiff and his wife to negotiate for access to the defendants’ premises. On 22 November 2012, the plaintiff again wrote to the first defendant to request permission to access No 2. When he received no reply, the plaintiff commenced proceedings in the Subordinate Courts.

[14] On 25 January 2013, the plaintiff wrote to the first defendant, offering to provide a written undertaking similar to the one set out in the publication “Be Good Neighbours” by the Urban Redevelopment Authority (“URA”) and the Building & Construction Authority (“BCA”). The sample undertaking read as follows:

[15] On 29 January 2012, the defendants’ solicitors wrote on behalf of their clients, asking the plaintiff to obtain a registered building engineer’s report on the cause and solution to the leaks before the defendants would consider a “suitably worded letter of undertaking as suggested on URA/BCA website”.

[16] The proceedings in the Subordinate Courts were withdrawn after the plaintiff realised that the Subordinate Courts lacked jurisdiction as the subject matter property was over $250,000. On 30 January 2013, the plaintiff commenced OS 92.

[17] Reference is made to the instruments of transfer of No 2 and No 4 dated 2 August 1974 and 11 November 1974 respectively (“the 1974 Transfer Instruments”). The 1974 Transfer Instruments were registered on 18 September 1974 and 13 January 1975 respectively with the following express easements created over both No 2 and No 4 (“the Registered Easements”):

[18] The plaintiff stated in his affidavit that “[t]he Certificates of Title of [No 2 and No 4] are encumbered with an easement for party wall rights over whole of MK18-5179M MK18-5180L” (ie, the Registered Easements). He went on to contend that these rights created “cross easements to both No 2 and No 4 over party wall rights”. Notably, the plaintiff stopped short of developing this discrete point to the facts of this case. I did not find this surprising as the plaintiff must have realised that the party wall easements created by the execution of the 1974 Transfer Instruments that were subsequently registered did not go beyond what was permitted by the easements. Plainly, the Registered Easements are sufficiently defined to afford assistance in disposing OS 92. For the reasons explained below, the fact that the Registered Easements were registered before 1 March 1994 has an important bearing on the relevance and operation of s 99 of the LTA in relation to the facts of this case.

[19] The party wall easements of support in the 1974 Transfer Instruments were created by the execution of the aforesaid transfers and then registered and noted on the Certificates of Title of No 2 and No 4. The relevant portion of section 88 of the Land Titles Act (Cap 276, 1970 Rev Ed) (the predecessor to s 104 of the LTA) which applied to the 1974 Transfer Instruments reads:

[20] The italicised words of s 88(2) of the L and Titles Act (Cap 276, 1970 Rev Ed) delineated the scope of the Registered Easements. In this respect, I agreed with the defendants that the Registered Easements were only concerned with cross easements of support. The Malaysian case of K Mahunaran v Osmond Chiang Siang Kuan [1996] 5 MLJ 293 illustrates the scope of an easement of support. The defendant there was held to have committed an act of trespass by demolishing the original party wall and building an extended new party wall without the consent of his neighbour.

[21] In this case, the plaintiff was erroneously seeking to go beyond what was authorised by the cross easements of support to confer a right to enter No 2 to inspect the party wall on the side of No 2 or to carry out repairs from No 2 without the consent of the defendants.

[22] As alluded to in [18], the fact that the Registered Easements were previously registered before 1 March 1994 is significant. Easements under s 99(1A) are implied in an “estate” defined in s 99(8). Section 99(7) of the LTA excludes the operation of s 99(1A) if (a) subdivision approval was given prior to 1 March 1994 (the date that the LTA first came into force), and (b) satisfactory documentary evidence has been produced to the Registrar of Titles of “the completion of the transfer of any lot in the estate to a purchaser with easements expressly created in an instrument which has been executed and delivered to the purchaser”. It cannot be disputed that both requirements have been satisfied.

[23] From the copies of the 1974 Transfer Instruments exhibited in the plaintiff’s affidavit filed in the Subordinate Courts, No 2 and No 4 together with other houses in the Thomson Green were developed by United Overseas Land. The housing estate where No 2 and No 4 were located was known as Thomson Hills. It is apparent that the land comprised in the Thomson Hills estate was subdivided into lots in the 1970s. The defendants exhibited a resurvey sheet that suggested that subdivision of the land comprising the Thomson Hills estate occurred in 1974. Furthermore, according to the land title search provided by the plaintiff, No 4 has a lot number, lot area, certified plan number that was approved on 27 February 1975 and then filed in the Chief Surveyor’s Office. It is thus clear from the documentary evidence that the approval for subdivision of the land comprised in the Thomson Hills estate was given well before 1 March 1994. The 1974 Transfer Instruments also evidenced the completion of the transfer of No 2 and No 4 to the respective purchasers (ie the predecessors-in-title of No 2 and No 4) with easements of support expressly created in the 1974 Transfer Instruments which were executed, delivered and registered in favour of them. Consequently, it follows that by virtue of s 99(7), the easements implied pursuant to s 99 of the LTA do not apply to properties (like No 2 and No 4) in the Thomson Hills estate.

[24] For these reasons, the plaintiff’s application in OS 92 was patently misconceived.

[25] Notwithstanding the fact that the conclusions reached above necessarily resolved OS 92 in favour of the defendants, since both sides submitted extensively on easements implied pursuant to s 99(1A) of the LTA, I propose to comment on their arguments for completeness.

[26] The plaintiff argued that “[e]ven without the benefit of the express covenants of easements granted to both properties in respect of party wall rights”, the statutorily implied easements in s 99(1A) of the LTA allowed the plaintiff to access the defendants’ property for the purposes of inspecting the party wall and to carry out necessary repairs thereto as this was necessary for the reasonable enjoyment of No 4. However, this argument glossed over two threshold requirements, both of which were important to the question of whether s 99 of the LTA was correctly invoked.

[27] The first gloss overlooked the effect of s 99(7) of the LTA to the facts of this case. As I have already ruled in [22] above, the approval for subdivision of the land comprised in the Thomson Hills estate was given prior to 1 March 1994, and the party wall easements were created in the 1974 Transfer Instruments which were registered. Accordingly, s 99(7) precludes the operation of any easements implied under s 99(1A).

[28] The second gloss was the flawed assumption that s 99(1A) automatically entitles the plaintiff to an implied easement of the nature claimed as a matter of law. Section 99(1A) provides for a broad category of implied easements because the provision contemplates that the specific easements would be indicated in the manner “appropriated or set apart” on the plan of subdivision submitted to the competent authority. This point is clear from the Report of the Select Committee on the Land Titles Bill (Parl 3 of 1993) presented to Parliament on 18 August 1993 at [24]-[25]:

[29] At the risk of repetition, the subdivision approval in this case was well before 1 March 1994. However, assuming, for the sake of argument, that this case concerned lots in an estate where the subdivision approval was given on or after 1 March 1994, in my view, the subdivision plan must be tendered in evidence if there is to be any reliance on an easement that is “appropriated or set apart” on the subdivision plan to support a contention that the scope and right conferred by the easements enumerated as implied under s 99(1A) is beyond what are typically authorised by them.

[30] This leads me to the main dispute, that is, whether s 99 implied, in respect of No 4, an easement to access or to enter the defendants’ property for the purposes of inspecting the party wall from the side of No 2 and to carry out necessary repairs thereto. Notably, the complaint is not related to an easement of support in respect of a “party wall”. The plaintiff argued that s 99(1A) of the LTA was stated in wide and general terms that would allow him, as the owner of the dominant tenement, to access the servient tenement to inspect the party wall for the source of the water egress into No 4 and to carry out repairs and precautionary maintenance works to the party wall. It is worth bearing in mind that the plaintiff conceded during the hearing that s 99(1A) of the LTA did not imply any easements in respect of the extended side wall (see [4] above).

[31] The defendants’ counter arguments were that not only was the plaintiff himself unable to articulate the full nature or extent of the easement claimed, any party wall rights that the plaintiff had were merely rights of support and nothing more.

[33] This brings me to the next phrase relied on by the plaintiff, viz. “as may be necessary for the reasonable enjoyment of the lot”. The plaintiff argued that this phrase in s 99(1A) extended the scope of the party wall rights to include the right to enter his neighbour’s property to inspect the party wall. This contention is decidedly untenable and without merit. In Boglari v Steiner School & Kindergarten [2007] VSCA 58 (“Boglari”), the Supreme Court of Victoria Court of Appeal had the opportunity to consider the meaning of the same phrase in Section 98 of the Transfer of Land Act 1958 (Victoria), a provision which is almost identical to s 99 of the LTA. The relevant part of Section 98 of the Transfer of Land Act 1958 (Victoria) reads:

[34] The issue in Boglari was whether the construction of a fence and a gate and the occasional locking of the gate constituted an unreasonable interference with an easement of way implied by Section 98 of the Transfer of Land Act 1958 (Victoria). Neave J held (at [30]) that the phrase “as may be necessary for the reasonable enjoyment of the allotment or the lot” in relation to an implied easement of way had a similar effect to the test which applied in determining what amounted to reasonable access where an easement of way created by an express grant did not indicate an access or conclusion point for the easement. It is therefore apparent that the phrase serves a rather limited purpose of determining how the implied easements were to be exercised in light of the circumstances. Contrary to the plaintiff’s argument, this phrase cannot be used to confer a right to enter No 2 “for party wall purposes”. If anything, in a proper case, the relevant provision is s 99 (2), which provides that ancillary rights and obligations reasonably necessary to make the easements for party wall purposes effective shall be implied.

[35] A comparison with the provisions of s 98 of the LTA with s 99 is beneficial. In Management Corporation Strata Title Plan No 549 v Chew Eu Hock Construction Co Pte Ltd [1998] 2 SLR(R) 934, the Court of Appeal held at [27] and [39] that the court should have regard to s 98 of the LTA when construing the provisions of s 99 of the LTA since there is a considerable amount of overlap between the two sections. The relevant portions of s 98 of the LTA are set out below:

[36] I have two comments to make on s 98 of the LTA. First, like s 99(2) of the LTA, s 98(2) also implies certain ancillary rights and obligations. Second, it is clear that the ancillary rights in s 98(2) of the LTA do not include rights of access since s 98(3) of the LTA already expressly states that the easements implied under s 98 of the LTA confer limited rights on the owner of the dominant tenement to enter the servient tenement. In my view, given the similarity of the ancillary rights and obligations provisions in both s 98(2) and s 99(2) of the LTA, Parliament clearly could not have intended the ancillary rights implied under s 99(2) of the LTA to include rights of access and entry. Any interference with the servient tenement proprietor’s prima facie right to exclusive use of his property by way of rights of entry would have been expressly provided for, as was the case in s 98 of the LTA.

[37] The Land Titles (Strata) Act (Cap 158, 2009 Rev Ed) (“the LTSA”), which deals with implied easements in a strata title property further reinforces this. The relevant provisions of the LTSA read as follows:

[38] As was the case with s 98 of the LTA, Parliament thought it necessary here to expressly include rights of entry to the servient tenement in the implied easements of support and shelter in s 16 and 17 of the LTSA, notwithstanding the implied ancillary rights and obligations in s 20 of the LTSA.

[39] In light of the above, I rejected the plaintiff’s argument that the implied easement “for party wall purposes” in s 99 of the LTA confers a right to enter the defendants’ property.

[40] For the sake of completeness, I should add that the plaintiff made several reference to legislation in the England such as the Access to Neighbouring Land Act 1992 and the Party Wall etc. Act 1996. These English statutory provisions entitle an applicant, in certain circumstances, to seek an English court order compelling the applicant’s neighbour to grant access to his property in order to, amongst other things, allow the applicant to carry out repairs to the applicant’s property or a party wall. However, the plaintiff was not suggesting that these English statutory provisions somehow applied in Singapore in the absence of statutory enactment by Parliament. In fact, as the plaintiff himself conceded, “[t]here are no similar provision (sic) in Singapore that set out the procedure for applying for an access order”. The English provisions referred to by the plaintiff merely underscored the recognition by the English legislature that there was a lacuna in this area of English land law that could only be properly addressed by detailed statutory enactment and not the courts. While Parliament might wish to consider if similar legislation should be enacted in Singapore, this will be of little comfort to the plaintiff in his present case.