Land Law

Published date01 December 2000
Date01 December 2000
Citation(2000) 1 SAL Ann Rev 264
AuthorTEO KEANG SOOD LLM (Mal), LLM (Harv), Advocate & Solicitor (Malaya), Associate Professor, Faculty of Law, National University of Singapore
Introduction

In the year under review, of the decided cases dealt with, some have produced interesting decisions. The areas covered by these cases are diverse, touching on matters pertaining to, among others, the right of support for buildings from adjoining land, the revocability of contractual licences, lodgment of caveats, adverse possession, the management corporation as representative of subsidiary proprietors in proceedings and the relationship between an equitable tenancy in common and the provisions of the Housing and Development Act (Cap 129, 1997 Ed). Where appropriate, the local courts have categorically moved away from English law where its application would not be suitable to local circumstances.

Right of support for buildings from adjoining land

Prior to the Court of Appeal decision in Xpress Print Pte Ltd v Monocrafts Pte Ltd & Anor[2000] 3 SLR 545, the law was that a right of support extended only to what was naturally on the land, and not to buildings or things constructed on the land (see Dalton v Angus(1881) 6 App Cas 740; Lee Quee Siew v Lim Hock Siew(1896) 3 SSLR 80 at 90). In other words, in the natural state of land, a right of support existed as an incident of the land itself, while a natural right did not exist vis-à-vis things artificially imposed on the land since such things did not themselves exist naturally. In respect of the latter, an easement of support could be acquired by the doctrine of the lost modern grant for unregistered land under which the person claiming the easement had to show uninterrupted user of the easement for a period of 20 years. Accordingly, a building which has stood for 20 years will have acquired an easement of support in respect of neighbouring lands. On the other hand, a building which has stood for less than 20 years will not have acquired such a right.

The above position as reflected in English law was rejected by the Court of Appeal in Xpress Print Pte Ltd. Yong Pung How CJ was of the view that such a principle had no application in Singapore having regard to the land use pattern whereby all land available for commercial, industrial or residential purposes is used to a high density. “The damage that might be caused if landowners were lackadaisical in their excavation works could be astronomical, not to mention the cost in human lives or injury to property” (at 562, para 48). Instead, the true legal justification for the right of support is the legal principle that one should use one”s own

property in such a manner as not to injure that of another. In effect, this amounts to holding that the “natural” right of support of one”s land includes support of a building on the land once the building is completed and that there is imposed a strict duty not to damage one”s neighbour”s property by interference with the support afforded by one”s land. “Once the primacy of [this] principle forbidding landowners to use their property to the injury of others is accepted, there is scant justification for the 20-year gestation period for a right of support in respect of a building.” In doing so, the court is not creating a new legal right but merely removing unjustifiable restrictions on a right already firmly established and accepted.

This enlarged right has exactly the same characteristics as the “original” right of support which operated only in respect of land in its natural state. “In particular, it is not a right to have adjoining soil remain in its natural state, but rather a right to support from the adjoining soil, which in practical reality translates into a correlating duty of the adjoining landowner not to cause damage to his neighbour”s land by excavating or otherwise removing his land without first securing alternative means of support” (at 563, para 51). What is prohibited is an active interference with the support which causes damage and the right is infringed as soon as damage is sustained in consequence of the withdrawal of that support. The duty to support the adjoining property, including any buildings on it, cannot be disposed of by delegation. In Xpress Print Pte Ltd, the first respondents had decided to construct a building on their own land and engaged a firm of contractors (the second respondents) to do this. The excavation works carried out caused damage to the appellants” building which stood on the latter”s adjoining land. The damage had been caused by the inadequacy of the retaining wall erected by the contractors. In due course, the appellants commenced action against the respondents for damages and loss suffered as a result of negligence and wrongful interference of support on the part of the respondents. In view of the fact that the action for withdrawal of a right of support is equivalent to an action under the tort of nuisance, the Court of Appeal held that the measure of damages to be awarded is the general tort measure, that is, all foreseeable losses suffered by the injured party as a result of the wrongful act (at 563, para 52).

In arriving at its decision, the Court of Appeal overruled Lee Quee Siew v Lim Hock Siew(1896) 3 SSLR 80, an earlier decision of the then Court of Appeal of the Straits Settlements, and cautioned that any part of Dalton v Angus(1881) 6 App Cas 740 which is incompatible with its decision should in future not be followed. The Court of Appeal was also of the view that it was not desirable to deal with the issue at hand by way of the imposition of a tortious duty in negligence as compared to holding that the natural right of support of one”s land includes support of a building on the land once the building is completed. Given the different land ownership regimes in Singapore, imposing a duty of care would create

an anomalous situation. As Yong CJ noted (at 559, para 42), in relation to unregistered land, “the duty to take reasonable care would be superseded by a strict duty of support upon the passage of 20 years.” This means that the strict duty would also apply to buildings on registered land which were built more than 20 years before the land was brought under the Land Titles Act (Cap 157, 1994 Ed). “On the other hand, in relation to registered land, or buildings built less than 20 years before the land was brought under the Land Titles Act, no easement of support would arise, and the duty to take reasonable care would continue in perpetuity.” Moreover, such an approach is also unsatisfactory as it would impose a duty of mere reasonable care.

The position adopted in Xpress Print Pte Ltd is commendable given the different land ownership regimes in Singapore. There will be uniformity of approach for both unregistered and registered land (cf the earlier decision of the High Court in Lim Hong Seng v East Coast Medicare Centre Pte Ltd[1995] 2 SLR 685 which was followed in Trustees of the Estate of Cheong Eak Chong v Medway Investments Pte Ltd[1997] 1 SLR 329). For once, the anomalous situation in which the easement of support for buildings acquired by 20 years user which applied in the case of unregistered land but not for registered land, will cease to exist. It may be pertinent to note, however, that the Court of Appeal decision in Xpress Print Pte Ltd does not do away with the application of the doctrine of lost modern grant in its entirety to unregistered land in Singapore but merely with the aspect pertaining to right of support for buildings from adjoining land. The continued application of the doctrine to unregistered land in other respects is not doubted. As Yong CJ noted (at 562, para 47), rights of passage or a right to water, for example, “are of a wholly different character from the right of support” as they raise different policy questions. In the case of the former, the question is whether a person is entitled to a particular liberty or the benefit of a natural resource, having openly enjoyed that liberty or benefit for a substantial period of time. However, in relation to the right of support, the real concern is damage to life, limb or property which calls for different considerations.

Revocability of contractual licence

Previously at common law, a licence was always revocable at will notwithstanding a contract to the contrary (see Wood v Leadbitter(1845) 153 ER 351). The remedy for a breach of the contract was only in damages. However, with the fusion of common law and equity by the UK Judicature Acts of 1873 and 1875 in the nineteenth century, the new concept of contractual licence came about (see Winter Garden Theatre (London) Ltd v Millennium Productions Ltd[1948] AC 173). Although a contractual licence does not give an interest in land, it now has a force and validity of its own and cannot be revoked in breach of the contract except as contemplated by the terms contained therein. In other words, a

licensor will not be permitted to eject a licensee in breach of a contract which allows him to remain. If it is revoked or if revocation is threatened in breach of the contract, the licence may be enforced by an order for injunction or specific performance, or compensated by an award of damages.

In Tan Hin Leong v Lee Teck 1m[2000] 3 SLR 85, GP Selvam J undertook a comprehensive review of the cases on contractual licences, tracing the position under the old law as seen in Wood v Leadbitter and the developments subsequent thereto, and culminating with the position representing the present law as reflected, inter alia, in Winter Garden Theatre. The two main issues before him were, firstly, whether the defendant was a contractual licensee or. as contended by the plaintiff, a bare licensee and secondly, it the arrangement gave rise to the former, whether the licence was revocable at the whim and will of the licensor. In the instant case, the plaintiffs father had purchased the land in question and had cohabited with the defendant at the property from the time of purchase. The property was subsequently transferred to the plaintiff and the plaintiffs father and the defendant...

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