Frontfield Investment Holding (Pte) Ltd v Management Corporation Strata Title No 938 and Others

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 30 June 2001
• Neutral Citation: [2001] SGHC 161
• Docket Number: Originating Summons No 1533 of
• Date: 30 June 2001
• Year: 2001
• Published date: 07 November 2003
• Plaintiff Counsel: K Shanmugam, SC, K Muralidharan Pillai and Prakash Pillai (Allen & Gledhill)
• Citation: [2001] SGHC 161
• Defendant Counsel: Harry Wee and Andrew Ho (Braddell Brothers)
• Court: High Court (Singapore)
• Subject Matter: Whether intention to abandon right of way shown,Whether right in issue involves common property,Whether right of way forms part of common property,Whether management corporation proper defendant,Capacity to be sued,Extinguishment,Proceedings by partial owner of servient tenement,Management corporation,Mere non-user of right of way insufficient,Proper parties,Abandonment of right of way,Whether other owner of servient tenement must be made party to proceedings,Partial abandonment of rights,Whether court has power to extinguish easement on basis of obsolescence,Strata titles,Whether parties before court has opposing interests on live issue,Civil Procedure,Intention to abandon right of way,Easements,Land,Parties

(delivering the grounds of judgment of the court):

Introduction

This case involves a right of way. The two pieces of land concerned are situated in the East Coast and the closest roads are Marine Parade Road, St Patrick`s Road, and Jalan Rendang. Originally, they were both part of a bigger plot of land bounded to the south by the sea (which has now been pushed back and replaced by Marine Parade Road), to the east by Telok Kurau Road and to the north by St Patrick`s Road. At that time Jalan Rendang did not exist.

The dominant tenement is known as Lot 5915X of Mukim 26 (formerly known as Lot 120-12) and it is now the site of a condominium called Gracious Mansions. The servient tenement is the land known as Lot 98082L (formerly known as Lot 120-13). It is currently undeveloped. The right in issue is a right for the owners of Gracious Mansions to have full and free right of way and passage over the servient tenement in order to have access to St Patrick`s Road.

The named plaintiff is Frontfield Investment Holding (Pte) Ltd (`Frontfield`). According to the description in the action, Frontfield sues on their own behalf and also under a power of attorney. Frontfield owns five equal undivided one-sixth shares in the servient tenement. The owner of the remaining one-sixth share is Madam Lee Seok Chee, the donor of the power of attorney.

The first defendant in the action is the Management Corporation Strata Title No 938, the management corporation of Gracious Mansions (`the MC`). The subsidiary proprietors of the strata title lots forming part of Gracious Mansions are not parties to the action. The second, third and fourth defendants are the owners of adjacent lots which had originally been given the same right of way as the owners of the dominant tenement. These defendants consented to having judgment entered against them and their purported right of way over the servient tenement was declared to have been extinguished pursuant to an order of court dated 22 November 2000. The action before me was, therefore, against the MC only.

The relief sought by Frontfield is a declaration that the right of way and passage and all other rights and easements appurtenant to the dominant tenement subsisting over the servient tenement have been extinguished. The grounds of the application are:

(1) that the right of way over the servient tenement has effectively been abandoned and therefore should be extinguished by operation of law;

(2) alternatively, there has been a partial abandonment of the right of way in that the right to have vehicular access enjoyed by the dominant tenement has been abandoned, leaving only a right to use the servient tenement as a footway;

(3) alternatively, the easement can, and in this case should be, extinguished on the basis of a change of circumstances which has made the easement obsolete.

Background facts

Attached to this judgment as an appendix is a copy of a certified government plan of the area in question which shows the respective positions of the dominant tenement (marked `C` in the plan) and the servient tenement (marked `B`). The map also shows the adjacent lots. One of these, the one marked `A` on the map, was formerly known as Lot 120-8. It contains a pre-war bungalow known as 398 Telok Kurau Road and some other buildings.

The servient tenement is a rectangular parcel of land. It has an average width of about 11m and a length of about 90m. The servient tenement was approved by the government to be used as a road in November 1951. It is vacant, grassy and unfenced except for the portion fronting St Patrick`s Road.

The parcel of land as it existed before the right of way was first established was some five acres in area and was known as Lot 120 of Mukim 26. It was a rectangular parcel then bounded by the sea towards the south, Telok Kurau Road towards the east, St Patrick`s Road towards the north and another plot of land towards the west. It was sold by Sir John Anderson to Ong Tiang Soon in July 1912.

In 1950, an application was made to court in connection with the trusts of the will of Ong Tiang Soon, deceased. Consequently permission was given for the sale of a portion of the original plot on the basis that the vendors would be allowed to retain a 36-foot wide right of way over the plot to be sold from either Telok Kurau Road or St Patrick`s Road. Various movements on the title took place thereafter and on 31 January 1952, the servient tenement, together with various other plots carved out of the original parcel, was conveyed to six members of the Lee Kong Chian family including Lee Seok Chee as tenants-in-common in equal one-sixth shares each. This conveyance contained a provision reserving unto the vendors `full and free right of way and passage to their other land adjoining the land hereby conveyed ... over the portion of land coloured green and marked "Road Reserve 36[quot ] 0" wide" ...`.

In the same year, approval for the subdivision of Lot 120 with the right of way on Lot 120-13 was given. Subsequently the area on which the right of way was located was approved as a `Reserve for Road` in the Master Plan.

In October 1953, there was a deed of partition between Lee Seok Chee and the other five Lees who were parties to the conveyance of 31 January 1952. The purpose of this deed was to allocate the various lots purchased in 1952 among the various family members. By this deed, inter alia, Lot 120-12 (ie the dominant tenement) was conveyed to Lee Seng Tee:

TOGETHER with full and free right of way and passage to the said land with horses carts carriages motor cars and other vehicles in common with all others entitled to a like right of way over the land coloured green and marked "Road Reserve 36[quot ] 0" wide" in the plan annexed to the Principal Indenture and now forming the whole of the land marked on the Government Resurvey Map as Lot 120-13 of Mukim XXVI and part of the land marked on the Government Resurvey Map as Lot 120-14 of Mukim XXVI ...

At that time, the dominant tenement was locked in by various adjoining lots as well as the sea in the south. Jalan Rendang did not exist then and there was therefore no access to St Patrick`s Road from the dominant tenement. The purpose of the right of way over the servient tenement was thus to give the land-locked dominant tenement vehicular access to St Patrick`s Road.

The dominant tenement was subsequently conveyed in December 1957, April 1961 and December 1980. Each conveyance contained an express provision purporting to transfer the right of way over the servient tenement. In the meantime, in 1967, Jalan Rendang came into being as a public road.

The main witness of fact on the events of the past 50 years was one Mr M Edaris bin Hussin. In about 1957 when Mr Edaris was ten years old his father found work as a grounds-keeper at 398 Telok Kurau Road, ie the property marked `A` on the map which is adjacent to both the dominant and servient tenements. Accommodation was provided for the family at 398 Telok Kurau Road and Mr Edaris has lived there ever since. After his father passed away, sometime in 1986, Mr Edaris took over the job of grounds-keeper for 398 Telok Kurau Road. His duties include taking care of the servient tenement.

Mr Edaris testified that in the early 1960s the compound of 398 Telok Kurau Road included the dominant tenement and therefore stretched all the way to what is now Jalan Rendang. There was no barrier between the two properties. Sometime in the 1970s, the dominant tenement was fenced up (thus preventing access to the servient tenement) but it remained as vacant land until Gracious Mansions was built in the 1980s.

The dominant tenement was conveyed to a company called Penford Pte Ltd in December 1980. It was this company that procured the construction of Gracious Mansions. This is a four-storey residential development containing 16 strata-title maisonette units. The building faces Jalan Rendang to the west and is fronted by a tarmac driveway while to the rear and eastern flank of the site is a turfed area. At the northern flank of the site are other site improvements which include a swimming pool and three other small buildings which accommodate the changing room, guardroom and bin centre. There are covered car parking lots available on part of the ground floor.

The boundaries of the dominant tenement are demarcated by chain-linked fencing with two sets of wide-span metal grille gates for vehicular/pedestrian access along Jalan Rendang. There is another gate at the southern flank of the site which allows pedestrian access to Marine Parade Road via a small bridge over a monsoon drain. There is also a gate along the common boundary with the servient tenement. This last gate was only erected in 1997. Until then, according to Mr Edaris, there had been no gate or any opening leading from Gracious Mansions onto the servient tenement.

Mr Edaris said that, to the best of his memory, before the dominant tenement was fenced up in the 1970s, no one from the compound of that property and 398 Telok Kurau Road could gain access to St Patrick`s Road through the vacant servient tenement. Neither was there any access from St Patrick`s Road to Jalan Rendang through the servient tenement. This was because although there was and still is a gate in the fencing on the servient tenement facing St Patrick`s Road, this gate was usually kept locked. It was only opened on the occasions when the landowners` contractors went onto the land to mow the grass of the servient tenement.

Between the completion of Gracious Mansions in the mid-1980s and 1997, no one living there could have access to St Patrick`s Road by moving through the servient tenement because of the absence of a gate in the fencing around the dominant tenement. Even after the gate was constructed in 1997, access was restricted because the gate on the servient tenement facing St Patrick`s Road remained locked. The foregoing was part of the testimony of Mr Edaris....