Land Law
| Published date | 01 December 2011 |
| Citation | (2011) 12 SAL Ann Rev 377 |
| Date | 01 December 2011 |
| Author | TEO Keang Sood LLM (Malaya), LLM (Harvard); Advocate and Solicitor (Singapore), Advocate and Solicitor (Malaya); Professor, Faculty of Law, National University of Singapore. |
19.1 The period under review saw cases clarifying the law in the areas of, inter alia, landlord and tenant, easements, caveatable interests, indefeasibility of title and adverse possession. The decided cases also dealt with the issues of, inter alia, legal advice privilege in the area of strata title and the liability for goods and services tax in conveyancing matters.
Distress for rent
19.2 In regard to recovery of distressed articles, can both the tenant and the owner of the articles make separate parallel applications for recovery of the same? This was considered by the Court of Appeal in Cupid Jewels Pte Ltd v Orchard Central Pte Ltd[2011] 3 SLR 492 (Cupid Jewels). The tenant's application was dismissed by the High Court on the ground that it had no standing. The Court of Appeal, in restoring the tenant's application so as to be heard together with the owner's application, held that both applications should be allowed to proceed concurrently.
19.3 The Court of Appeal found that the substantive grounds for the grant of a remedy to the tenant and owner were distinct. Section 16 of the Distress Act (Cap 84, 1996 Rev Ed) read with s 8 of the same Act substantially represents a codification of the tenant's standing and substantive remedies at common law. For the owner, s 10 read with ss 12 and 13 of the same Act originated from statute ie, ss 1, 4 and 5 of the Law of Distress Amendment Act 1908 (c 53) (UK). Accordingly, the issues of law and fact that could arise in relation to both applications were quite different and it was premature to speculate what would be the appropriate order to make in respect of the applications.
19.4 The Court of Appeal further noted that (Cupid JewelsENR at [17] and [18]):
the [owner] is free to discontinue proceedings under s 10 [of the Distress Act] and seek compensation from [the tenant] If [the tenant] were prevented from pursuing its s 16 claim, it would be vulnerable to compensation proceedings brought by the [owner], even if the seized jewellery had been wrongfully distressed .
Finally, it is noted that s 17 of the Distress Act gives the court the discretion to order the release of the distressed items on such terms as it thinks fit. Therefore, even if [the tenant]'s application were to succeed, the court could still, if it thinks appropriate, order the release of the seized jewellery to its owner.
Breach of covenant
19.5 Issues pertaining to the breach of a covenant in a sublease to use the demised premises for certain specified purposes were considered by the High Court in Fico Sports Inc Pte Ltd v Thong Hup Gardens Pte Ltd[2011] 1 SLR 40. The defendant had successfully tendered to rent a parcel of land from the Housing Development Board (HDB) half of which had to be used for non-agricultural purposes. This half was sublet to the plaintiff for sporting activities. Under clause 6(3) of the sublease, the plaintiff covenanted as follows: To use the Demised Premise for the purpose of sports/games/recreational activities and or other uses as approved by the HDB. The plaintiff subsequently sublet parts of the land for non-sporting use ie, for food and beverage facilities with cooking and eating in, without the prior approval of the HDB. The latter issued a notice to quit to the defendant for breaching the terms of the head lease. When the defendant served a notice to quit on the plaintiff dated 26 March 2009, the latter initiated action for, inter alia, a mandatory injunction or order for specific performance of the sublease. The defendant counterclaimed for, inter alia, a declaration that the plaintiff had committed a repudiatory breach of the sublease which had been terminated.
19.6 The High Court was of the view that, having regard to the language of clause 6(3) and the context, the plaintiff had covenanted to use the demised premises for such other uses as had been approved by the HDB either at the time of entry into the sublease or at any time thereafter. The phrase as approved by the HDB was capable of being interpreted as referring to approvals that were current at the time, ie, both those that had been issued prior to the execution of the sublease and those that might have been given later. Under the covenant, the plaintiff was obliged to use the premises only for uses approved by the HDB.
19.7 The sublease was operable and effective on its terms as they stood and business efficacy did not require the inclusion of a term compelling the defendant to consent to what would be an additional use or a change of use. Further, if the plaintiff was not compelled to use the premises for anything other than uses which the HDB had already approved as at the date of execution of the sublease, there could be no correlative obligation on the defendant's part to assist the plaintiff in its voluntary application for an additional use. In other words, in the absence of necessity, a correlative obligation could not arise.
19.8 The High Court held that it was settled law that there is an implied condition in every lease that a tenant will not do anything that may prejudice the landlord's title. In the instant case, the plaintiff was in breach of this implied term as it was aware of the terms of the head lease and therefore knew what the approved uses were.
19.9 Given the breach by the plaintiff of the implied term which prejudices the defendant's title, the latter was entitled to re-enter the demised premises. Having regard to the evidence, the plaintiff's conduct consistently evinced an intention not to be bound by the restrictions in the sublease. The plaintiff was aware that the sublease had no provision allowing the establishment of fast food restaurants and food courts and that the HDB would approve the provision of snacks and light meals as a complementary use to the primary usage of the premises for sporting activities. The defendant had accepted the plaintiff's repudiation by its notice to quit dated 26 March 2009. In the circumstances, the breach was considered to be a repudiatory breach which had been accepted by the defendant. There was no waiver of the defendant's acceptance of the plaintiff's repudiation as the defendant made it clear that rentals made after issue of the notice to quit would only be accepted as part of the damages.
19.10 Whether an easement which had already been granted should be observed in its entirety by the owner of the servient tenement or whether it can be modified by the latter so long as it did not substantially interfere with the enjoyment of the owner of the dominant tenement was considered in Chia Foong Lin v Chan Yuen Yee Alexia Eve[2011] SGHC 261 (Chia Foong Lin). The plaintiffs, as owners of the dominant tenement, enjoyed an easement of right of way over the defendant's land which was the servient tenement. This easement road was the only means of access between both neighbouring properties and a public road. The plaintiffs objected to the defendant building a kerb wall on the grass verge of the easement road which would reduce its width and cause difficulty to the plaintiffs in manoeuvring their cars to drive out of their house head-first. With the kerb wall in place, the plaintiffs would now have to reverse all the way along the easement road onto the public road, thereby posing a danger to both life and property. The plaintiffs claimed that the kerb wall constituted an interference with their reasonable enjoyment of the easement and sought, inter alia, an injunction against the defendant.
19.11 The High Court was presented with evidence that showed vehicles could freely enter and exit head-first out of the plaintiffs' property. There was also evidence which suggested the plaintiffs' use of the easement road did not involve them driving their cars out of their property head-first. They had always driven in and out of their compound head-first in the interest of safety, doing a three-point turn in their compound. The court also noted that reversing a car out of the plaintiffs' property was difficult, but could be done. In the result, the court ruled that the defendant had the right to build the kerb wall as it did not substantially interfere with the plaintiffs' enjoyment of the easement road.
19.12 The plaintiffs had also complained that other proposals by the defendant would also substantially interfere with their enjoyment of the easement road, namely, the construction of an easement gate; the defendant's intended parking of her cars on the easement road; the defendant's intention to allow her children to play on the easement road and the defendant's construction of a meter box at the front of the easement gate.
19.13 On the construction of an easement gate by the defendant, the court ruled that it was within the defendant's right to build on her property so long as she did not substantially interfere with the plaintiffs' reasonable enjoyment of the easement road. There must be some substantial interference with the enjoyment of the easement and not merely injury to the servient land. The test of actionable interference in the context of gates was whether the right of way was locked against enjoyment (referring to Sunset Properties Pty Ltd v Johnston(1975) 3 BPR 9185 at 9195). The right was not infringed if the dominant owner was provided with a key, a remote control key in the instant case. The concern about the gate mechanism breaking down was mitigated by the fact that there was a manual override system.
19.14 The court similarly ruled in favour of the defendant in regard to her intention to park her cars on the easement road. Photographs showed that cars could still enter and exit the properties so long as cars were not parked directly opposite the gates of the properties. Should the plaintiffs ever need to use the entire width of the easement road on occasion, they could reasonably expect the defendant and her family to temporarily move their cars away.
19.15 The...
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