Fones Christina v Cheong Eng Khoon Roland

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 19 September 2005
• Neutral Citation: [2005] SGCA 43
• Docket Number: Civil Appeal No 22 of 2005
• Date: 19 September 2005
• Published date: 22 September 2005
• Year: 2005
• Plaintiff Counsel: Khoo Boo Jin (Wee Swee Teow and Co)
• Citation: [2005] SGCA 43
• Defendant Counsel: Marina Chin (Tan Kok Quan Partnership)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether adverse possessor's interest in land subject to mortgagee's interest in same land,Whether adverse possessor's possessory title extinguished by failure to lodge caveat before caution on land title cancelled,Land,Whether adverse possessor's interest extinguished by subsequent redemption of mortgage by mortagagor,Land later converted to registered land,Adverse possessor completing period of adverse possession while land unregistered,Whether adverse possessor's possessory title extinguished by failure to lodge application for possessory title within six months of Land Titles Act 1993 coming into operation,Sections 50, 172(8), 172(9) Land Titles Act 1993 (Act No 27 of 1993), ss 50, 172(7), 172(8) Land Titles Act (Cap 157, 1994 Rev Ed),Adverse possession

19 September 2005 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

1 This is an appeal against the decision of the High Court ([2005] SGHC 87) which held that the title to a strip of land (“plot A”), falling within the legal boundary of the land belonging to the plaintiff-appellant, had been extinguished by adverse possession on the part of the owner of the adjacent plot of land, who is the defendant-respondent in this appeal.

The facts

2 As this case involves an interpretation of the Land Titles Act and there have been, over the years, different editions of it, it may be expedient if we should, at the outset, identify the different versions of this Act. The statute which introduced registered land in Singapore was the Land Titles Ordinance 1956 (Ordinance No 21 of 1956) (“1956 LTO”). In the 1970 Revised Statutes of the Republic of Singapore, the 1956 LTO became the Land Titles Act (Cap 276) (“1970 LTA”). A new revised edition of this Act, incorporating all prior amendments, came into being in 1985 (Cap 157, 1985 Rev Ed) (“1985 LTA”). It was this 1985 LTA that was repealed by the Land Titles Act 1993 (Act No 27 of 1993) (“1993 LTA”) and which also abolished adverse possession (subject to certain saving provisions) as a means of acquiring registered land. With the omission of certain transitional provisions which appeared in the 1993 LTA, a revised edition of it was brought into being in 1994 (Cap 157, 1994 Rev Ed) (“1994 LTA”). In 2004, a further revised edition of the 1994 LTA, incorporating all prior amendments, was prepared and published (Cap 157, 2004 Rev Ed) (“2004 LTA”).

3 The appellant is the owner of the property known as 12 Toronto Road (“No 12”) and the respondent is the owner of the adjacent property, 10 Toronto Road (“No 10”). As one looks at the two properties from the road, No 12 is on the left and No 10 on the right. The whole area is not level, as it slopes downwards, with No 12 being on higher ground. Pursuant to the 1956 LTO, No 12 was bought under the Torrens system on 20 December 1966. The title remained qualified until 2 April 2002 when the caution against it was cancelled on the application of the appellant.

4 In July 1954 one Francis Anthony Rodrigues (“Rodrigues”) became the owner of No 12. In September 1966, Rodrigues sold and transferred the property to the appellant who has been the owner ever since. No 10 was bought by one Emile Le Mercier (“Mercier”) in July 1954. In May 1960, he sold it to Cheong Chee Hock (“Cheong”). In April 1991, the respondent bought the property from Cheong.

5 The physical boundary separating the two properties has undergone changes over the years. The legal boundary of the two properties runs along the middle of a sloping strip which separates the two properties. It would appear that in the 1950s and 1960s, there was an L-shaped hedge which ran along the top of the slope from the rear to the front of No 12 and continued along the front portion of No 12. The front part of this hedge was again not on the legal boundary but a little distance away from it. As for No 10, there was also a hedge which ran along its front portion but stopped at precisely the legal boundary of the two properties. There was thus a gap between the hedge of No 10 and that of No 12. A rough sketch depicting the positions of the two properties and the disputed plot A is at the Appendix hereto.

6 In the 1970s, the L-shaped hedge on No 12 was replaced by a fence which was also erected along the top of the sloping strip separating the two properties. In the 1980s, this fence was replaced by a new chain-linked fence erected very much along the same position. Up to the time of the trial, this chain-linked fence was in place.

7 In issue in the present action and this appeal is plot A which lies between the legal boundary of the two properties and the chain-linked fence on No 12, which plot is estimated to contain an area of 40m². The appellant asserts that the title to plot A still remains with her on two grounds. First, the respondent’s predecessors-in-title had not satisfied the requirements necessary to obtain a possessory title. Second, even if the respondent’s predecessors-in-title had obtained possessory title to plot A by adverse possession, and the possessory title had duly passed down to the respondent, such possessory title of the respondent had been extinguished because the respondent had failed to comply with s 172(8) of the 1994 LTA.

8 The judge below held against the appellant on both grounds. He found that the possessory title to plot A had been acquired by the respondent’s predecessors-in-title and that such title had been transferred to the respondent by the latter being the owner of No 10. With regard to s 172(8) of the 1994 LTA, the judge found that as the possessory title of the respondent to plot A had already crystallised by December 1966, before No 12 had become registered land, the 1994 LTA could not have operated retrospectively to defeat the respondent’s possessory title. The judge in conclusion stated at [33] that:

[T]he defendant’s possessory title had already crystallised before 20 December 1966 when No 12 was brought under the provisions of the 1956 LTO. Accordingly, the plaintiff’s title to [plot A] was extinguished by the operation of the Limitation Ordinance in force at the material time when No 12 was still under the common law system. The plaintiff’s claim in this action therefore fails.

Issues on appeal

9 Before us, three main issues were raised in the Appellant’s Case. First is the factual question whether the respondent had proved that his predecessors-in-title had, by December 1966, acquired possessory title to the disputed strip. Second, even if possessory title had been acquired by the respondent’s predecessors-in-title, the interest so acquired would only be in respect of the equity of redemption as No 12 was then under mortgage. Third, even if a possessory title to the disputed strip had been acquired by the respondent’s predecessors-in-title, such a possessory title had been extinguished by virtue of the fact that the title to No 12 had become unqualified on 2 April 2002 and there was no caveat lodged to protect that interest. In this regard, we should also point out that in the court below, the legal point argued was whether ss 172(7) and 172(8) of the 1994 LTA applied to extinguish the respondent’s possessory title. The judge held that they did not apply. However, during oral submission, this point was also touched on and we will deal with it.

10 For the purposes of this judgment, we do not propose to go into the first ground, which is essentially a question of fact. The appellant argued, in particular, that there was no evidence that Mercier had exclusive possession of, or animus possidendi over plot A, bearing in mind that the hedge at the front of No 10 did not link up with the L-shaped hedge of No 12. As stated before, the hedge of No 10 stopped at the legal boundary line and did not go beyond so as to enclose plot A within No 10. In view of our conclusion on the legal points in the third issue, which will dispose of this appeal, it will be quite unnecessary for us to examine the first issue. We shall assume:

(a) that the judge’s finding that Mercier and Cheong were in adverse possession of plot A for a period of at least 12 years preceding December 1966 is correct; and

(b) that Mercier and Cheong had acquired a possessory title thereto which had been passed down to the respondent as the successor owner of No 10.

Effect of mortgage on adverse possession

11 Before we address the third issue, we shall briefly touch on the second issue. During the period September 1954 to May 1961, No 12 was mortgaged by the then owner, Rodrigues, to the Building Society of Malaya Limited (“the Building Society”). In September 1966, the appellant, upon acquiring No 12, also mortgaged the property to the Building Society. It remained so mortgaged until July 1974. The appellant argued that as on 19 December 1966, the date on which the respondent’s predecessors-in-title acquired possessory title to the disputed strip, No 12 was under mortgage, what the respondent’s predecessors-in-title would have acquired would be just the equity of redemption. Upon the appellant redeeming the mortgage in 1974, and obtaining a reconveyance of the whole of No 12 in her favour, it was too late for Cheong’s estate (or now the respondent as successor-owner to No 10) to claim an equity of redemption. In making this submission, the appellant relied upon the following passage from Kevin Gray & Susan Francis Gray, Elements of Land Law, (Oxford University Press, 4th Ed, 2004) at para 6.47:

In unregistered land the adverse possessor simply emerges with an unimpeachable legal title in fee simple, although he inevitably holds this title subject to all valid pre-existing legal and equitable rights over the land. Adverse possession against a paper owner extinguishes only the paper owner’s title and not the interest of any third party to which that title was already subordinated. Thus, for example, a successful adverse possessor is bound by any mortgage charge affecting the land, the squatter effectively acquiring only the equity of redemption.

12 The last sentence in the passage above rests on the case of Carroll v Manek and Bank of India (2000) 79 P&CR 173 (“Carroll”). However, it is important to bear in mind that in Carroll the mortgage was granted before the period of adverse possession had commenced. This is a critical fact which differentiates the position here from that in Carroll. In the present case, it would appear that Mercier had already commenced adverse possession of plot A (having bought No 10 in July 1954) before Rodrigues mortgaged No 12 to the Building Society in September 1954. Cheong continued with the adverse possession when he bought over No 10 in May 1960. Thus, upon Cheong acquiring possessory title over the strip,...