Fragrance Realty Pte Ltd v Rangoon Investment Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 28 March 2013
• Date: 28 March 2013
• Docket Number: Originating Summons No 678 of 2012
• Court: High Court (Singapore)

Fragrance Realty Pte Ltd

Plaintiff

and

Rangoon Investment Pte Ltd and others

Defendant

[2013] SGHC 70

Belinda Ang Saw Ean J

Originating Summons No 678 of 2012

High Court

Land—Adverse possession—Retaining wall resulting in encroached area on property—Conversion of property to registered land—Adverse possessors of encroached area failing to caveat right before cancellation of caution on qualified title—Whether registered proprietor's title extinguished by adverse possession—Sections 50, 174 (7) and 174 (8) Land Titles Act (Cap 157, 2004 Rev Ed)

Land—Easements—Acquisition—Acquisition by prescription—Adverse possessors alternatively claiming easement by prescription over encroached area—Whether 20 years' continuous user with consent or acquiescence of registered proprietor shown

Land—Easements—Characteristics—Claimed easement to park vehicles and store personal belongings on encroached area enclosed by retaining wall—Whether registered proprietor's possession of encroached area ousted

The defendants were the subsidiary proprietors of a development known as Amazing Inn, which was situated adjacent to the plaintiff's property. In 1961, the developers of Amazing Inn erected a retaining wall on the plaintiff's property, resulting in an encroached area between the retaining wall and the boundary line of Amazing Inn. Since 1961, residents of Amazing Inn had used the encroached area to park their cars and store their personal belongings in an aluminium shed put there.

The same encroached area was the subject of an adverse possession claim in proceedings between the former registered owner of the plaintiff's property, Shell Eastern Petroleum (Pte) Ltd (‘Shell’), and the defendants named in Originating Summons No 827 of 1997 (‘OS 827/1997’). The plaintiff's property had been converted to registered land on 26 November 1992, and a qualified title had been issued in respect of it. In May 1996, Shell cancelled the caution on the qualified title. Shell then commenced OS 827/1997 to recover the encroached area, by which time the doctrine of adverse possession had been abolished by the Land Titles Act 1993 (No 27 of 1993) (‘the 1993 LTA’). OS 827/1997 was dismissed in favour of the defendants in that case (‘the OS 827 defendants’) in Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok[1999] 3 SLR (R) 236 (‘Shell Eastern’). Shell Eastern held that the OS 827 defendants' adverse title was valid notwithstanding their failure to lodge a caveat to protect their adverse title and the fact that Shell's title had become unqualified upon the cancellation of the caution. Shell did not appeal against the decision in Shell Eastern.

Shell sold its property to the plaintiff in November 2010, who subsequently commenced the present action. Some of the present defendants were the same as the OS 827 defendants, while others were the successors-in-title of the remaining OS 827 defendants. The plaintiff sought, inter alia,a declaration that the defendants' adverse title to the encroached area had been extinguished. The defendants argued that they had possessory title to the encroached area by adverse possession and alternatively, that they had acquired an easement by prescription over the encroached area.

Held, allowing the claim in part:

(1) Shell Eastern was an in personam judgment. Shell Eastern did not confer any proprietary interest over the encroached area on the OS 827 defendants; the OS 827 defendants' title was held to be valid only against Shell as the original registered proprietor, but not against a third-party purchaser from Shell. In the present originating summons, the rights of the plaintiff and the defendants thus had to be determined afresh according to the prevailing law: at [15] and [17] .

(2) Shell's title to the encroached area would have been extinguished by 1973. However, its property had also been converted to registered land as at 1 March 1994. Section 50 of the 2004 LTA applied such that the present defendants could only assert an adverse title if they fell within the exceptions in s 174 (7) or s 174 (8) of the 2004 LTA. As the present defendants did not lodge a caveat in respect of their interest within the requisite time period, they did not fall within these exceptions. Accordingly, the plaintiff's title to the encroached area was not extinguished by adverse possession of the present defendants or their predecessors in title: at [24] and [25] .

(3) In the context of registered land, the plaintiff's knowledge of the present defendants' encroachment or their unregistered interest as adverse possessors had no bearing on the question of title to the encroached area: at [26] .

(4) The present defendants' claim to an easement by prescription over the encroached area could not succeed. The parking of vehicles and storage of personal belongings on the encroached area which was enclosed by the retaining wall constituted exclusive possession of that area. Also, there was less than 20years of continuous user of the encroached area with the consent or acquiescence of the servient owner, as the evidence showed that Shell became aware of the encroachment only on 5 January 1996: at [35] to [37] .

(5) The plaintiff could not recover damages arising from the present defendants' use of the encroached area. The plaintiff knew, or at least, ought to have known of the present defendants' encroachment before it purchased the property from Shell in 2010. Yet, the plaintiff commenced construction work on its property and waited for almost two years before commencing the present suit. Applying the avoidable loss rule in mitigation, the plaintiff could not recover damages in respect of its alleged loss which it could have avoided by taking reasonable steps: at [39] and [40] .

[Observation: An easement had to be a right over someone else's land, and not one's own land. The present defendants could have an easement over the encroached area only if their predecessors in title did not have possessory title to that area for the 20 years preceding 26 November 1992 (the date on which the plaintiff's property became registered land). Thus, there was a question as to whether the present defendants' adverse title to the encroached area was extinguished ‘ab initio’ or only after they failed to lodge a protective caveat within the prescribed time: at [29] to [31] .

Although a right claimed as an easement could not oust the possession of the servient owner, given the appropriate set of facts, the right to park was capable of existing as an easement in law: at [32] , [34] and [35] .]

Copeland v Greenhalf [1952] Ch 488 (refd)

Ellenborough Park, Re [1956] Ch 131 (folld)

Fones Christina v Cheong Eng Khoon Roland [2005] 4 SLR (R) 803; [2005] 4 SLR 803 (folld)

Grigsby v Melville [1972] 1 WLR 1355 (refd)

Lim Hong Seng v East Coast Medicare Centre Pte Ltd [1994] 3 SLR (R) 680; [1995] 2 SLR 685 (folld)

Liwen Holdings Pte Ltd v Ng Ker San [2001] 1 SLR (R) 743; [2001] 2 SLR 533 (not folld)

Mills v Silver [1991] Ch 271 (folld)

Moncrieff v Jamieson [2007] 1 WLR 2620 (distd)

Payna Chettiar v Low Meng Seng [1998] 1 SLR (R) 657; [1998] 2 SLR 289 (folld)

Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok [1999] 3 SLR (R) 236; [2000] 1 SLR 45 (not folld)

Sturges v Bridgman (1879) 11 Ch D 852 (folld)

Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 2 SLR (R) 407; [2000] 3 SLR 405 (folld)

TSM Development Pte Ltd v Leonard Stephanie Celine née Pereira [2005] 4 SLR (R) 721; [2005] 4 SLR 721 (folld)

Xpress Print Pte Ltd v Monocrafts Pte Ltd [2000] 2 SLR (R) 614; [2000] 3 SLR 545 (folld)

Land Titles Act (Cap 276, 1970 Rev Ed)

Land Titles Act 1993 (Act 27 of 1993) ss 50, 177 (3)

Land Titles Act (Cap 157, 1994 Rev Ed) ss 46 (1) , 50

Land Titles Act (Cap 157, 2004 Rev Ed) ss 50, 174 (7) , 174 (8) (consd) ; ss 46 (1) , 46 (1) (ii) , 47 (1) , 47 (2) , 49 (2)

Limitation Act (Cap 163, 1985 Rev Ed) ss 9 (1) , 18

Ong Lian Min David and Lim Leng See (David Ong & Co) for the plaintiff

Hong May Leng Stephanie and Edwin Sim (Lexton Law Corporation) for the first defendant

Mak Kok Weng (Mak & Partners) for the second to fourth, sixth to eighth, 12th to 21st, 24th to 30th defendants.

Belinda Ang Saw Ean J

Introduction

1 This application vide Originating Summons No 678 of 2012 (‘OS 678/2012’), concerned a strip of land with an area of about 92.2m², being part of Lot 6219 X, Mukim 25 and situated at 340 Geylang Road, Singapore (‘the Property’). I shall refer to the strip of land in question as the ‘encroached area’. Fifteen years ago, the very same encroached area was the subject matter of an adverse possession claim in proceedings between the former registered owner of the Property, Shell Eastern Petroleum (Pte) Ltd (‘Shell’), and the defendants in Originating Summons No 827 of 1997 (‘OS 827/1997’). OS 827/1997 was dismissed in favour of the defendants in that case (‘the OS 827 defendants’). Shell did not appeal against the decision of Warren LHKhoo J (‘Khoo J’) in Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok [1999] 3 SLR (R) 236 (‘Shell Eastern’).

2 OS 678/2012 is a sequel to the litigation commenced by Shell against the OS 827 defendants, who were the subsidiary proprietors of a block of flats in a development known as Amazing Inn situated at Lorong 16 Geylang, Singapore. This block of flats is adjacent to the Property, and to the south side of the Property is a brick wall, which Khoo J described as a retaining wall in Shell Eastern.For consistency, I shall likewise refer to this brick wall as the ‘retaining wall’. This retaining wall, it is now accepted, was erected by the developers of Amazing Inn in 1961. It is also accepted that the retaining wall was erected on land inside the boundary line of the Property. The encroached area consists of the area between the retaining wall and the boundary line of Amazing Inn. Shell sold the Property to the plaintiff, Fragrance Realty Pte...