Chua June Ching Michelle v Chai Hoi Tong

• Jurisdiction: Singapore
• Judgment Date: 29 July 2011
• Date: 29 July 2011
• Docket Number: Suit No 377 of 2009
• Court: High Court (Singapore)

Chua June Ching Michelle

Plaintiff

and

Chai Hoi Tong and others

Defendant

[2011] SGHC 180

Choo Han Teck J

Suit No 377 of 2009

High Court

Land—Adverse possession—Competing claims between parties neither of whom were paper owner—Would-be adverse possessor claiming on basis of rent collection—Whether physical occupation necessary for factual possession—Whether grant of exclusive possession by way of tenancy precluded landlord would-be adverse possessor from satisfying requirement of exclusive possession for purpose of adverse possession—Whether requirement of animus possidendi could be satisfied by intention to own rather than intention to possess

The plaintiff and the defendant both laid claim to ownership of a property (‘the Property’) located at 89 Amoy Street and both based their claims on the doctrine of adverse possession. At the time of the hearing, the Property was still unregistered land, and the original paper owner to the Property had not entered an appearance. The defendant had obtained an ex parte order of court dated 11 September 2008 declaring him the owner of the Property by adverse possession, and had procured registration of the Property in his name on the strength of that order. In these proceedings the plaintiff sought to set that order aside on the grounds that it had been fraudulently obtained. The plaintiff acknowledged that the defendant or his predecessors had had physical possession of the land for 37 years, which more than satisfied the requirement of a continuous twelve year period; however she claimed that she or her predecessors had been collecting monthly payments of $840 as rent from him or his predecessors over the entirety of this period. Therefore she claimed that she should be entitled to the Property on the basis that she was the landlord of the Property. The defendant disputed that he or his predecessors had made any payments to the plaintiff at all, and even if payments had been made, that they were in the nature of financial assistance to the plaintiff's family, not rent.

Held, allowing the plaintiff's claim:

(1) To succeed, a party had to show that he or she had adversely possessed the Property against the paper owner and against the other party: at [7].

(2) At common law, two elements had to be provided to substantiate a claim of adverse possession, namely factual possession and the animus possidendi, viz, the intention to possess: at [10].

(3) Physical occupation was neither a necessary nor sufficient condition to satisfy the requirement of factual possession, and it was acts of ownership that were of paramount importance. Acts of ownership reflected the nature of adverse possession - the doctrine under which ownership of land passes from the paper owner to an adverse possessor. The defendant had indeed made payments to the plaintiff for a continuous twelve year period, and these payments were in the nature of rent. Thus the plaintiff had, in behaving as a landlord, exercised an act of ownership over the Property: at [12] to [16].

(4) Factual possession had to be open, adverse and exclusive. The defendant's claim failed because his physical occupation was not adverse to the plaintiff, and he was only on the premises with the plaintiff's consent. He thus was not able to show that he had adversely possessed the Property as against the plaintiff: at [17].

(5) Exclusive possession was also a necessary component of a tenancy, and a tenant enjoys exclusive possession as a grant from his landlord. The nature of exclusive possession is that it was exclusive, and the landlord and tenant could not both concurrently enjoy this exclusivity. Doubt was cast on the Court of Appeal's dicta inSoon Peng Yam v Maimon bte Ahmad [1995] 1 SLR (R) 279 which stated that a landlord could continue to be in adverse possession of the land through her tenants: at [18] and [19].

(6) Exclusive possession was merely an incident of ownership, and in the context of adverse possession, its presence went to show that the would-be-adverse possessor was dealing with the land as an owner would. The paramount consideration remained the exercise of ownership. Since an act of ownership had been proved, then the landlord plaintiff's grant of exclusive possession to the tenant defendant did not pose a hurdle to her, and she nonetheless fulfilled the requirement of factual possession: at [19].

(7) The second element of animus possidendi could be fulfilled by demonstrating the intention to own, which was a more precise and exacting intention than the intention to possess. The plaintiff in collecting rent from the defendant for 37 years and dealing with the Property as a landlord owner would, satisfied the requirement of animus: at [21].

(8) The plaintiff was thus entitled to set aside the defendant'sex parte order of court on the grounds that he had not disclosed the material fact that he had paid rent to her in respect of the Property in hisex parte application. The plaintiff was also entitled to have the land-register rectified to reflect her ownership of the Property on the grounds that the defendant had procured this registration through his fraud: at [7], [8] and [22].

Ashburn Anstalt v Arnold [1989] Ch 1 (refd)

Jubilee Electronics Pte Ltd v Tai Wah Garments and Knitting Factory Pte Ltd [1996] 1 SLR (R) 352; [1996] 2 SLR 39 (folld)

Nicholson v Samuel Property Management Ltd (2002) 217 DLR (4 th) 292 (refd)

Nikkomann Co Pte Ltd v Yulean Trading Pte Ltd [1992] 2 SLR (R) 328; [1992] 2 SLR 980 (refd)

Soon Peng Yam v Maimon bte Ahmad [1995] 1 SLR (R) 279; [1996] 2 SLR 609 (refd)

Street v Mountford [1985] AC 809 (refd)

Tan Ah Suan v Ng Aik Kern [2002] 2 SLR (R) 1135; [2002] 4 SLR 708 (refd)

United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4 SLR (R) 884; [2006] 4 SLR 884 (folld)

Western Australia v Ward (2002) 213 CLR 1 (refd)

Control of Rent Act (Cap 58, 1985 Rev Ed)

Land Titles Act 1993 (Act 27 of 1993) ss 50, 174 (8)

Land Titles Act (Cap 157, 2004 Rev Ed) ss 50, 160 (1) (b)

Limitation Act (Cap 163, 1996 Rev Ed) s 9

Revised Edition of the Laws Act (Cap 275, 1995 Rev Ed) s 5

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 32 r 6

Edwin Lee and Joni Tan (Eldan Law LLP) for the plaintiff

Samuel Chacko and Angeline Soh (Legis Point LLC) for the first defendant.

Judgment reserved.

Choo Han Teck J

1‘Adverse possession’ is the law that recognises one's claim to ownership of soil and plaster he knows do not belong to him. That law will become obsolete in time. This case is a relic from a past not affected by the change in law, and concerns the ownership of a property located at 89 Amoy Street, Singapore 069908 described as lot number TS 3-99095 P in the lot base system operated by the Singapore Land Authority (‘the Property’) . Chua June Ching Michelle (‘the Plaintiff’) and Chai Hoi Tong (‘the Defendant’) are rival claimants to the Property, both claiming by the doctrine of adverse possession. The second, third and fourthdefendants did not enter an...