Lim Hong Seng v East Coast Medicare Centre Pte Ltd

• Jurisdiction: Singapore
• Judge: Judith Prakash JC
• Judgment Date: 27 October 1994
• Neutral Citation: [1994] SGHC 270
• Date: 27 October 1994
• Subject Matter: Relevant considerations,Whether grant of right of way on foot and by bicycles at time of grant could later extend to motorized vehicles,Principles governing the acquisition of easements by lost modern grant,Acquisition by prescription,Land,Adverse possession,Creation,Easements,Owners of landlocked land claiming to have acquired right of way to part of neighbouring land by prescription,Failure to claim right before lapsing of caution on new owner's certificate of title,Nature and extent of right of way,s 44(1) Land Titles Act (Cap 157),Whether onus on owners to establish that all conveyances relating to subject land in the past had claimed such easement,Acquisition,Express grant,Conversion of land into registered land,Whether adverse possessor's right to land overreached
• Docket Number: Suit No 869 of 1993
• Published date: 19 September 2003
• Defendant Counsel: A Karthigesu (Tan Rajah & Cheah)
• Court: High Court (Singapore)
• Plaintiff Counsel: George Pereira (Pereira & Tan)

Cur Adv Vult

This action involved alternative claims. The first was a claim for adverse possession of a piece of land owned by the defendants. The alternative was a claim to an easement over the said land. At the end of the hearing I dismissed the plaintiff`s claim for adverse possession but reserved judgment in relation to the easement issue.

Background

The plaintiff is the owner of lot 138-11, mukim 27, Singapore and the house erected thereon and known as 2M Bedok Road. During the trial, the plaintiff`s land was referred to as Land A and I will observe this practice in this judgment. The defendants are the owners of lot 1704, mukim 27 (Land C), part of which runs along the northern boundary of Land A. The land in respect of which the dispute arose (Land B) is that part of Land C which is adjacent to Land A.

The following relationship of the various pieces of land is taken from the list of agreed facts submitted by the parties. Land A, which is landlocked, is fronted on the north by Land C. To the west of Land A, there is a property known as 2K Bedok Road and on its eastern flank, there is a large plot of state land. The southern boundary of Land A is also adjacent to another piece of state land, part of which is enclosed by a fence and incorporated with Land A. The remaining part of the state land adjacent to the southern boundary of Land A consists of a grass strip.

There is a gate at the south west corner of the state land which has been incorporated with Land A and which the plaintiff occupies. Access to and from Land A can be obtained by the said gate. The plaintiff has, however, no easement or right of way over any part of the land over which he has to travel on foot to gain access to and from Land A through the said gate. The plaintiff has never used this gate for access to and from Land A.

Although Land B is actually part of Land C, it is separated from the rest of Land C by a chain-link fence. A driveway runs across Land B from north to south and connects Land A with the metalled road to the north of Land C which connects with Bedok Road, the nearest main road. This driveway leads to the main gate of Land A and is used exclusively as a vehicular and pedestrian access to and from Land A. There is no other vehicular access to and from Land A. It is this driveway which the plaintiff claims an easement over.

The conveyancing history of the various plots of land is as follows. Prior to 12 July 1930, Land A and Land C were owned by one Koh Sek Lim and were collectively known as lot 138-6, mukim 27. By a conveyance dated 12 July 1930, one Seah Eng Lim acquired lot 138-6. At that time, a river, the Sungei Bedok, flowed to the north of Land C. A wooden bridge had been constructed over the river and one end of the bridge rested on the part of Land C which comprised Land B. From that end of the bridge, a concrete pathway extended into Land A. Access to Land A was therefore over the wooden bridge and across the concrete pathway lying on Land B. The bridge was only accessible to pedestrians, cyclists and pushcarts.

By a conveyance dated 3 October 1933, Mr Seah carved out an area of 8,000 sq ft from Land C and conveyed it to one Stella Maris Woodford. This was Land A, and when lot 138-6 was subsequently subdivided, Land A acquired its present lot number, ie lot 138-11. By the conveyance, Mr Seah conveyed the said part of lot 138-6 `together with all rights of way and other easements and appurtenances thereto belonging`. Prior to the conveyance, Land A was planted with coconuts but a plan drawn in November 1933 indicates that at that time the coconut plants had been chopped down and that new buildings were to be constructed.

On 6 July 1951, Mrs Woodford conveyed Land A `together with the bungalow erected thereon and known as No 652A Bedok Road Singapore` to one Chua Soh Mui. In turn Chua Soh Mui conveyed Land A and the bungalow thereon (which by that time was known as 2M Bedok Road) to the plaintiff`s immediate predecessors-in-title on 3 December 1971. At some stage thereafter, Land A was brought under the provisions of the Land Titles Act (Cap 157) (LTA) and, on 29 January 1975, the plaintiff, having purchased Land A, became its registered proprietor.

At some time prior to the plaintiff`s acquisition of land A, the exact date is unknown, the Sungei Bedok had been reclaimed and where the river once ran a metalled road leading to Bedok Road had been constructed. From that road a driveway leading to Land A across Land B was built over the portion of Land B previously occupied by the concrete pathway.

On 27 August 1981, Land C (which by that time was known as lot 1704) became registered land when a qualified certificate of title to it was issued and embodied in the Land Register. The certificate of title carried a caution to the effect that Land C was held subject to any interest which might have affected it as at 27 August 1981. On 9 September 1992, the defendants lodged a transfer in respect of Land C and thereby became its registered proprietors. On 3 November 1992, the caution on the certificate of title in respect of Land C was lapsed.

Next, on 20 November 1992, the defendants lodged a reassertion of ownership over Land C pursuant to the provisions of s 44(1) of the LTA. This reassertion of ownership was notified in the Land Register on 14 December 1992. Two months later, in February 1993, the plaintiff lodged a caveat over Land B (as part of Land C) claiming an estate in fee simple as adverse possessor.

In the meantime, on 20 February 1993, the defendants` solicitors had written to the plaintiff stating that he was encroaching and/or trespassing on Land B by using it as an accessway to Land A and, furthermore, by parking vehicles on it. They demanded that the plaintiff immediately cease and desist from entering upon Land B whether by vehicle or on foot, from causing vehicles to be parked on Land B and from continuing the construction of a fence to surround Land B which the plaintiff had undertaken. The plaintiff was further put on notice that the defendants would commence action if he did not comply with the terms of the letter.

The plaintiff replied, through his solicitors, on 25 February 1993. The letter stated that the plaintiff had been occupying Land B ever since he had purchased Land A in 1975. He had constructed the driveway linking his house to the metalled road and that driveway was his only means of access to the metalled road. The plaintiff`s solicitors asserted that by virtue of his possession of Land B, the defendants` title to it had been extinguished and their right to recover it was barred by the Limitation Act (Cap 163). Immediately thereafter, the plaintiff`s caveat was filed against Land B.

Further correspondence ensued. The defendants denied that the plaintiff had acquired any rights over Land B by virtue of adverse possession. They also denied that he had any right of way over Land B. Each party maintained his stand and, in April 1993, the plaintiff commenced this action for, inter alia, a declaration that he was entitled to an estate in fee simple in possession free from encumbrances in respect of Land B and, alternatively, a declaration that he and his successors-in-title had and were entitled to a right of way over a portion of Land B.

In the statement of claim the plaintiff alleged that he had since 29 January 1975 taken adverse possession of Land B and that such adverse possession remained unchallenged until the defendants` solicitors` letter of 20 February 1993. He contended that the title of the defendants` predecessor-in-title to Land B had been extinguished at the latest on or about 29 January 1987, by virtue of s 18 of the Limitation Act (Cap 163) and that the defendants` right of action or claim for the recovery of Land B had been barred by s 9 of that Act. In relation to the right of way claim, para 4 of the statement of claim recited that the only means of access that the plaintiff had to and from Land A was over Land B and that he had exercised and enjoyed such access as of right unchallenged from 29 January 1975 until receipt of the aforesaid letter of 20 February 1993.

The defendants filed a defence and counterclaim whereby they denied that the plaintiff had taken adverse possession of Land B. They contended that from the date on which the caution endorsed on the qualified certificate of title issued in respect of Land C had lapsed, the said certificate of title ceased to be qualified and thereafter they had held Land C subject only to such interests as were registered or notified in the Land Register on 3 November 1992, the date of the lapsing. As of that date, there was no interest in favour of the plaintiff which had been notified in the Land Register with regard to Land C or any part thereof. They stated that their reassertion of ownership had been lodged on 14 December 1992 and contended that pursuant to s 42(1) of the LTA, the plaintiff had to establish 12 years` adverse possession from that date in order for his claim for adverse possession to become effective. As the plaintiff was unable to establish such a 12-year period, his claim could not succeed.

In relation to the claim for a right of way, the defendants denied that the only means of access that the plaintiff had to and from Land A was over part of Land B. They did not admit that he had exercised and enjoyed the access referred to in the statement of claim in the manner stated therein or for the duration stated therein. The defendants then put in a counterclaim stating that from 9 September 1992 when they became the registered proprietors of Land C, the plaintiff had, on divers dates, wrongfully entered and crossed their land and that they had thereby suffered loss and damage.

At the close of pleadings, the issues were whether the plaintiff was entitled to claim adverse possession of Land B and, alternatively, whether he had a right of way over that land arising out of an easement of necessity.

Then there...