Land Law

Citation(2014) 15 SAL Ann Rev 425
Date01 December 2014
Published date01 December 2014

20.1 The Decided Cases In The Period Under Review Helped To Further Clarify The Law In The Areas Of, Inter Alia, Landlord And Tenant, Easements, Caveatable Interests, Strata Title And Conveyancing. In The Area Of Landlord and Tenant, The Remedy Of Distress Under The Distress Act (cap 84,1996 Rev Ed) Was Further Clarified. The Meanings Of Common Property, structural Defects And The Law On Meetings Were Further Elaborated Upon in The Area Of Strata Title. In The Area Of Conveyancing, The Case Law Also Dealt With The Issue Of, Inter Alia, A Solicitor's Duty Of Care And The Effect of An Ancillary Order Of A Foreign Court For Division And Sale Of Property in Singapore.

Tenancy by estoppel

20.2 In Ritzland Investment Pte Ltd v Grace Management & Consultancy Services Pte Ltd[2014] 2 SLR 1342, the plaintiff, the lessee of premises, sublet to the defendant a part of the property(premises A). Subsequently, the defendant unilaterally ceased paying rent in respect of the sublease of premises A which expired after the main lease then in force. The plaintiff brought proceedings for summary judgment against the defendant.

20.3 The High Court allowed the plaintiff's application for summary judgment in respect of premises A. The court was of the view that the plaintiff undoubtedly had the right to exclusive possession of the entirety of premises A at the time the sublease was entered into. Even if there was any lack of title, it did not affect the rights of the parties inter se. A lack of sufficient title may prevent the parties from having a lease but it will not prevent the parties from having a contract unless one of the vitiating factors under the law of contract is present.

20.4 The court held that the defendant was estopped at common law from denying the plaintiff's leasehold title to premises A. On the effect of s 118(1) of the Evidence Act (Cap 97, 1997 Rev Ed), the court elaborated (at [89]) as follows:

s 118(1) prescribes a rule of evidence which applies to a tenant during the continuance of the tenancy. That rule of evidence says nothing about any estoppel which may or may not apply to a tenant after the determination of the tenancy, whether by effluxion of time or otherwise. Section 118(1) is not, on that view, inconsistent with the common law rule which provides that the estoppel continues to operate and bind the parties even after the term has ended except where the tenant is dispossessed by a third party with a superior title to his landlord (per Belinda Ang Saw Ean J in Thode Gerd Walter v Mintwell Industry Pte Ltd[2009] SGHC 44 at [10]). Indeed, on this view, the common law rule of evidence complements s 118(1) rather than contradicting it

Distress for rent

20.5 The Court of Appeal further clarified this area of the law in Cupid Jewels Pte Ltd v Orchard Central Pte Ltd[2014] 2 SLR 156. The landlord (Orchard Central) had let two units in a commercial development to the tenant (Cupid Jewels) for the business of jewellery retailing. Subsequently, the parties entered into negotiations for a rental rebate and for the payment of the rental arrears in instalments. Later, the landlord obtained a writ of distress and seized all the goods found on the tenant's premises, including jewellery (the distrained jewellery).The tenant and a third party (Forever Jewels) applied for the release of all the distrained jewellery pursuant to ss 16 and 10 (read with s 12) of the Distress Act respectively. The tenant's arguments were premised on the grounds, inter alia, that the landlord had failed to make full and frank disclosure to the assistant registrar when making the ex parte application for the writ of distress and that the goods were exempt from seizure under s 8(d) of the same Act. Forever Jewels argued that it was at all times the beneficial owner of the distrained jewellery and the landlord had actual knowledge of this fact.

20.6 In upholding the High Court's decision in favour of the landlord, the Court of Appeal was of the view that the landlord's duty to disclose facts beyond those required in Form 198 of Appendix A to the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (ROC) in an ex parte application for a writ of distress extended only to any crystallised dispute between the parties as to whether the landlord's right to distress had in fact arisen. In the instant case, the landlord's right to rent due and payable, and its consequent right to distress, were not known by it to be disputed when it made its application for distress. Accordingly, there was no duty on the part of the landlord to give any narrative of the negotiations to the assistant registrar during its application. Further, the rent in issue in the writ of distress was due and payable, and the period in question for which rent was claimed did not exceed 12 months. There were therefore no irregularities in the writ of distress so as to render it void or invalid.

20.7 The phrase otherwise dealt with in s 8(d) of the Distress Act should be interpreted in the same way as the word manage in the common law formulation of the trade privilege. The provision was a codification of the common law trade privilege. This accords with the fundamental principle of purposive interpretation under s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) and the principle that Parliament would not have removed rights pre-existing in common law if there was no express provision or clearly evinced intention to the effect. The feature common to factors, brokers and commission agents who are afforded privilege under the managed limb of the common law trade privilege is that of an agency relationship. In the instant case, the tenant was not an agent of Forever Jewels in the true sense of the word. In particular, the tenant did not sell Forever Jewels' goods upon commission. The tenant could set the price of the jewellery independently at its sole discretion. It only had to account to Forever Jewels for the cost price. Other than that, the tenant was entitled to retain any profits and had to bear the losses if any. Given that the tenant did not fall within the ambit of the common law privilege, its reliance on s 8(d) of the Distress Act failed.

20.8 The doctrine of reputed ownership should not, as a matter of principle, exclude that of actual knowledge. The mere awareness that the tenant would be supported by Forever Jewels in stocks and finance was simply insufficient to found actual knowledge on the part of the landlord that the distrained jewellery was not owned by the tenant. As regards the issue of the perspective of the reasonable man test, it is the landlord's perspective that is relevant. The burden is on the party seeking to make an application under s 10 to prove the conditions there in as well as those under s 12. Accordingly, it was Forever Jewels that bore the burden of proving that the distrained jewellery was not reputedly owned by the tenant.

20.9 In the instant case, there was no fixed industry wide custom or practice to show that it was usual and customary in the jewellery retail trade to have goods on consignment. On the contrary, it seemed that the parties merely had a sale and return arrangement. The court also observed that the fact that both entities were controlled and owned by the same or related parties meant that Forever Jewels could have difficulty in denying any beneficial interest in the tenancy so as to fall within s 10(1)(c) of the Distress Act. Since Forever Jewels failed to prove that the circumstances were not such that the tenant was the reputed owner thereof within the meaning of s 12(a) of the Act, it could not seek to rely on s 10.

Obligation to pay rent

20.10 In Panpac Education Pte Ltd v Applied Movers & Trading Pte Ltd[2014] SGHC 50, the issues before the High Court were whether the defendant (the subtenant) was liable to pay rent for the period after it vacated the premises and secondly whether it was liable to pay the reinstatement costs. The defendant had appealed against the decision of the assistant registrar who ruled in favour of the plaintiff (the chief tenant).

20.11 On the first issue, the court was of the view that the basic question to be decided was as to the proper interpretation of the defendant's obligations under the extended sublease. The plaintiff had submitted that the context in which the extension letter was issued showed clearly that the defendant was liable to pay rent right up to the end of the extended lease period notwithstanding that it physically left the premises before that date.

20.12 In all the circumstances, the court held that the proper interpretation of the extension letter appeared to be that the defendant was obliged to pay the full rental right up to the end of the extended lease period even though the defendant would have to vacate the premises about a month or so before the termination date to allow forrein statement. This was what the parties wanted to provide for. The extension letter clearly stated the extension period as being a three-month period and that there would be a monthly rental of $94,800plus goods and services tax and subletting fees during this period. The defendant also had to hand back the premises in their original condition. The assistant registrar's order of conditional leave to defend the claim for the balance of rent unpaid was, accordingly, upheld by the court.

20.13 As to whether the defendant was liable to pay the reinstatement costs, the court held that to claim the sum of $62,702, the plaintiff not only had to show what work had cost that amount; it also had to show that the work was necessitated by the defendant's occupation of the premises. The plaintiff had to show the condition of the sublet premises at the time they were leased out and their condition at the time the defendant vacated the premises. It then had to show that the condition of the sublet premises on subletting was the original condition at the time it...

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