Land Law

Citation(2002) 3 SAL Ann Rev 304
Published date01 December 2002
Date01 December 2002

17.1 The year under review saw developments in several important areas of land law pertaining to, among others, the position of unregistrable leases, strata title and land acquisition.

Unregistrable leases exceeding seven years

17.2 Section 87(1) of the Land Titles Act (Cap 157, 1994 Ed) (“LTA”) provides for the registration of leases exceeding seven years by an instrument of lease in the approved form. The question which arose in Golden Village Multiplex Pte Ltd v Marina Centre Holdings Pte Ltd[2002] 1 SLR 333 was whether this provision is mandatory. In the instant case, the appellants had entered into an agreement to lease, for 15 years, various levels of a building (Leisureplex) from the respondents, for use as a cinema complex. The lease was not in the form prescribed under the LTA as the respondents had no intention of applying for subdivision approval of the premises and granting the appellants a registrable lease. The appellants had accepted the form and terms of the lease after negotiations with the respondents. Subsequently, when a dispute arose between the parties, the appellants sought a declaration from the High Court that the agreement was void, illegal and/or unenforceable. Upon dismissal of their claim (discussed in (2001) 2 SAL Ann Rev 317—318), the appellants appealed and argued, inter alia, that s 87(1) of the LTA was mandatory with the consequence that non-compliance would render the agreement in question illegal and unenforceable. In rejecting this argument of the appellants, L P Thean JA interpreted correctly, it is submitted, ss 87(1) and 87(2) as follows (at [23] and [24]):

“In our opinion, s 87(1) of the LTA is by its terms not a mandatory provision. There is nothing in the context of that section or the surrounding circumstances which impelled us to construe it as a mandatory provision. Accepting the argument [of the appellants] would amount to requiring all leases exceeding seven years to be registered. This cannot be correct as the Torrens system of registration permits and recognises the existence of interests in land other than registered interests, and in particular, equitable interests. …

[Section 87(2)] does not in any way suggest that s 87(1) of the LTA is mandatory. Rather, it merely limits the Registrar”s discretion to register a lease subject to the satisfaction of the conditions listed therein.

Accordingly, in this case, the equitable lease continued to be valid and subsisting, and there was therefore no illegality involved in the agreement.”

17.3 The appellants had also argued that the agreement, being void at law under s 53(1) of the Conveyancing and Law of Property Act (Cap 61, 1994 Ed) (“CLPA”), could not operate as a contract in equity. In other words, the agreement, not being in the form prescribed under the LTA, was not capable of enforcement by specific performance as the execution of a registrable lease and its subsequent registration with the Registry of Titles could not be specifically ordered since the agreement did not provide for this. Thean JA was of the view that this argument was totally misconceived. As he said (at [14]), following Chan v Cresdon Pty Ltd(1989) 168 CLR 242:

“Once an agreement is enforceable in equity, the court in enforcing it is not confined to giving only the remedy of specific performance. In enforcing an agreement, the court may grant such other remedy as it may deem fit and as circumstances may require, for instance, an injunction restraining a party from breaching or continuing to breach an agreement or a mandatory injunction compelling a party to perform certain acts under the agreement.”

17.4 Thean JA had earlier stated (at [12]) that:

“The agreement [in the instant case] operates as a contract and the terms thereof and the rights of the parties thereunder are enforceable in equity under the doctrine of Walsh v Lonsdale(1882) 21 Ch D 9. It will be treated as an equitable lease for the term agreed upon and as between the parties to the agreement is equivalent to a lease at law.”

17.5 It is trite that the doctrine of Walsh v Lonsdale is dependent upon the willingness of the court to grant the discretionary remedy of specific performance. It is doubtful that given the facts of the case, the agreement was enforceable in equity under the Walsh v Lonsdale principle. This aspect of the case is discussed in greater detail under “Equity and Trust” (Chapter 12).


17.6 The law on the writ of distress was explained and elaborated upon in Heng Chyu Kee v Far East Square Pte Ltd[2002] 1 SLR 158. The plaintiff had brought an action against the defendants, her former landlords, for damages for wrongful execution of a writ of distress. Among others, the defendants had appropriated a sum of money paid by the plaintiff towards payment of legal costs and other outstanding debts instead of towards payment of the arrears in rent. The plaintiff had contended, inter alia, that the writ was illegal and irregular in that it failed to identify the person to whom it was addressed. In rejecting this contention of the plaintiff, Choo Han Teck JC (as he then was) was of the view that the irregularity occasioned no injustice as the plaintiff

knew what it was all about when the bailiff appeared at her shop with the writ. He also noted that it is in fact the court that issues the writ of distress (although it is one issued at the instance of the landlord) and in that sense cannot be said to be illegally or unlawfully issued (save in the case of ultra vires) as otherwise it would be a contradiction in terms. The appropriate remedy lies in other causes of action such as negligence or breach of statutory duty where irregularities in the conduct of the sale are concerned.

17.7 After elaborating on the distress procedure, Choo JC found (at [14]) that the defendants were negligent in executing the writ for the following reasons:

“… in failing to ensure that the value of the goods seized did not exceed the debt; secondly, in failing to identify the goods seized by affixing the court seal on all the items seized; thirdly, in failing to sell only such items as were seized; fourthly, in failing to give adequate notice of the sale; fifthly, in failing to ensure that only seized goods are sold; and sixthly, failing to ensure that the purchaser takes away only the items that he had bought.”

17.8 Notwithstanding that the defendants were found to be negligent, Choo JC dismissed the plaintiff”s claim, holding that the plaintiff had failed to prove the tort of negligence which requires proof of damage. He found that the plaintiff went to great lengths to conceal and fabricate evidence of damage. In the result, none of her evidence was accepted when it related to the question of damage.

Proprietary estoppel

17.9 It is trite law that three elements, namely, an assurance, reliance and detriment, have to be shown to establish a claim in proprietary estoppel. This is illustrated in Lemon Grass Pte Ltd v Peranakan Place Complex Pte Ltd[2002] 4 SLR 439. The plaintiffs operated a restaurant business at rented premises in a complex owned by the defendants. The adjoining premises were operated as a café by Delifrance. A corridor separating the two business premises was used by customers to gain access to the ground floor toilets. Subsequently, BreadTalk Pte Ltd took over as tenants from Delifrance and boarded up their side of the corridor for operational reasons. The plaintiffs claimed that their business suffered losses without the internal access to the said toilets. In their action against the defendants, the plaintiffs claimed, inter alia, a right of access to the toilets through the adjoining leased premises as a proprietary interest based on proprietory estoppel. The plaintiffs alleged that a director and shareholder of the defendants had earlier represented that the right of access would remain the same as before and that they had relied on the representation to their detriment.

17.10 In rejecting the plaintiffs” claim, Belinda Ang JC (as she then was) referred to Dillwyn v Llewelyn[1861—73] All ER Rep 384 and Ramsden v Dyson(1866) LR 1 HL 129 and stated (at [134]) as follows:

“Generally, if the owner of land requests or allows another to incur expenditure or otherwise prejudice himself under an expectation created or encouraged by the owner that he will obtain an interest in the land, that raises an equity in the other which is satisfied in whatever is the most appropriate way …”

17.11 She was of the view that once the three elements mentioned above are established, the question ultimately, as laid down in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd[1982] QB 133 which is the preferred approach, “is whether or not the assertion of strict legal rights would be unconscionable”. Having concluded that the alleged representation was not made, she rightly held that the question of encouragement did not arise. In addition, the alleged expenditure was not proven. There was no evidence to show that the expenditure was “referable to a genuine belief in the plaintiffs” entitlement to the rights claimed”. On the contrary, there was the inference that the plaintiffs would have proceeded exactly as they did.

17.12 Ang JC also rejected the plaintiffs” claim based on derogation from grant of their lease. This was because neither the grant expressly provided for readily accessible toilet facilities nor did the defendants promise them such facilities.

17.13 In Sin Sai Peng v Soh Kim Lian Florence[2002] 4 SLR 681, the first and second plaintiffs were married to one another. The first plaintiff, who was the husband, then had an affair with the defendant. Arising out of this relationship, the defendant gave birth to a baby boy. The first plaintiff contributed a sum of money towards the purchase of an HDB flat by the defendant. Subsequently, the defendant and her son came to live in the plaintiffs” apartment (Lakeview apartment)...

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