Muthukumaran s/o Varthan and another v Kwong Kai Chung and others

• Jurisdiction: Singapore
• Judge: Lee Kim Shin JC
• Judgment Date: 15 October 2014
• Neutral Citation: [2014] SGHC 204
• Plaintiff Counsel: George Pereira (Pereira & Tan LLC)
• Docket Number: Originating Summons No 896 of 2013
• Date: 15 October 2014
• Hearing Date: 24 March 2014,07 May 2014,30 June 2014
• Subject Matter: Easements,Land
• Published date: 29 December 2015
• Citation: [2014] SGHC 204
• Defendant Counsel: Adrian Wong and Yan Yijun (Rajah & Tann LLP),Krishanasamy Siva Sambo and Choo Yean Lin (Tan Lee & Partners)
• Court: High Court (Singapore)
• Year: 2014

Lee Kim Shin JC: Introduction

The main issue in Originating Summons No 896 of 2013 (“OS 896”) was whether the owners of a two-storey shop-house, which did not have a staircase built within their unit, had an implied easement of a right of way over the staircase of the adjacent unit under s 99(1A) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”).

On 30 June 2014, I dismissed OS 896 because the First and Second Plaintiffs (collectively “the Plaintiffs”) had failed to establish that the alleged easement was set apart or appropriated on the subdivision plan that was submitted to the authorities, as required by s 99(1A) of the LTA. I ordered that the Plaintiffs pay the First and Second Defendants’ costs, fixed at $10,000 plus reasonable disbursements, and the Third Defendant’s costs, also fixed at $10,000 plus reasonable disbursements. I gave the Plaintiffs liberty to apply if complications arose while building a staircase in their shop-house.

The Plaintiffs have filed an appeal against my decision. I therefore set out the grounds for my decision.

Background

The Plaintiffs are the joint registered proprietors of the property known as No 21 Madras Street, Singapore (“No 21”). The First and Second Defendants have been the joint registered proprietors of the property known as No 23 Madras Street, Singapore (“No 23”) since 16 July 2010. The Third Defendant was the registered proprietor of No 23 from 1995 to 2010 when it was transferred to the First and Second Defendants.

No 21 and No 23 are part of a row of four two-storey conservation shop-houses in the Little India area (these four shop-houses, collectively, “the Properties”). The other two Properties in the row are No 17 Madras Street, Singapore (“No 17”) and No 19 Madras Street, Singapore (“No 19”). Each of the Properties stands on a separate lot and has a separate Certificate of Title.

The Properties were all originally purchased by the Third Defendant on 22 November 1993 following a successful tender concluded on 27 August 1993 with the Singapore Government. The Third Defendant’s undisputed evidence was that none of the Properties had a permanent staircase at the time the Third Defendant purchased the Properties. Rather, each of the Properties only had a bare ladder.

In 1995, the Third Defendant submitted plans to the Building and Construction Authority (“BCA”) and the Urban Redevelopment Authority (“URA”) for approval to carry out Addition and Alteration Works on the Properties. The scope of these works included: The building of two new timber staircases, one being inside No 19 and the other being inside No 23. I shall refer to the staircase inside No 23 as “the No 23 Staircase”. The demolition of a portion of the firewalls on the ground floor between No 17 and No 19, and on the ground floor between No 21 and No 23, to allow access between the units at the ground level. The demolition of a portion of the firewalls on the upper floor between No 17 and No 19, and on the upper floor between No 21 and No 23, to allow access between the units at the upper level. I shall refer to the upper floors of No 21 and No 23 as “No 21A” and “No 23A” respectively.

The plans were approved by the BCA and the URA on 4 May 1995 and 20 June 1995 respectively. Thereafter, the Addition and Alteration Works were carried out and completed by the Third Defendant. Notably, No 17 and No 21 continued to have no staircase access to their upper floors as this was not covered by the scope of the works, but this also meant that No 17 and No 21 retained relatively larger floor areas. However, it would appear from the plans that access to No 21A could be obtained by using the No 23 Staircase and the opening between No 21A and No 23A created by the demolition of a portion of the firewalls separating them.

On 3 June 2004, the Plaintiffs purchased No 21 from the Third Defendant for $435,000. The transfer of No 21 to the Plaintiffs was registered on 10 November 2004. The Plaintiffs acquired No 21 subject to an existing tenancy agreement. At that time, and sometime until February 2010, the Plaintiffs’ tenant was also occupying No 19. The Third Defendant claimed that when the Plaintiffs purchased No 21, the Plaintiffs were informed that there would be no staircase access to No 21A. Rather, the Plaintiffs would be required to build their own staircase. The Plaintiffs denied being informed of this.

What transpired between 2006 and 2010 was disputed. The Plaintiffs claimed that both they and their tenant were able to use the No 23 Staircase to gain access to No 21A without incident during this time. It was only when their tenant moved out in February 2010 that they discovered that the lock on the doorway to the No 23 Staircase had been changed. The Plaintiffs also claimed that they discovered that the opening between No 21A and No 23A had been boarded up with wooden planks and sealed sometime in August 2010.

The Defendants, on the other hand, claimed that the opening between No 21A and No 23A had been boarded up since March 2006. It would appear that the Plaintiffs’ tenant in No 21 was able to gain access to No 21A by using the staircase in No 19 (which the tenant was also occupying) instead.

It suffices to state that there was a flurry of correspondence between the Plaintiffs and the Third Defendant between February 2010 and June 2010, with the Plaintiffs asserting their right to use the No 23 Staircase and the Third Defendant denying that the Plaintiffs had such a right.

On 19 April 2010, the First and Second Defendants purchased No 23 from the Third Defendant for $640,000. The transfer of No 23 to the First and Second Defendants was registered on 16 July 2010.

Shortly after this and sometime in late July or early August 2010, the First Defendant received a call from the First Plaintiff. During the call, the First Plaintiff alleged, amongst other things, that the No 23 Staircase was a common staircase and meant to be shared by the proprietors of No 21 and No 23. The First Plaintiff demanded that he be granted access to the No 23 Staircase. The First Defendant refused to accede to the First Plaintiff’s demand.

On 5 August 2010, the First Plaintiff wrote to the Singapore Civil Defence Fire Safety Licensing & Enforcement Unit (“the Civil Defence”) to complain that he was unable to access No 21A and was concerned about fire safety issues. The Civil Defence carried out an inspection at No 23 on 11 August 2010. They found that the boarding up of the opening between No 21A and No 23A was a violation of fire safety regulations.

On 13 August 2010, the Civil Defence wrote to the First and Second Defendants to inform them that a fine of $500 would be imposed on them. In the same letter, the Civil Defence advised the First and Second Defendants to remove the boarding or to apply for approval if they wished to continue boarding up the opening. On 25 March 2011, the Civil Defence approved the First and Second Defendants’ application for the boarding up of the opening between No 21A and No 23A.

On 12 April 2011, the URA wrote to the First and Second Defendants to say that the URA’s approval ought to have been obtained before the opening was boarded up because No 21 was a conservation building. Nothing came of this letter eventually. The First and Second Defendants did not obtain the URA’s approval.

On 2 August 2013, more than two years after the Plaintiffs last asserted a right of way over the No 23 Staircase, the First and Second Defendants received a letter from the Plaintiffs’ solicitors saying that the Plaintiffs would be commencing proceedings against them.

On 8 October 2013, the Plaintiffs filed OS 896 against all three Defendants.

Thereafter, on 10 December 2013, the Plaintiffs’ solicitors wrote to the URA to enquire whether the First and Second Defendants had since obtained the URA’s approval to board up the opening. The URA replied on 16 December 2013 to indicate that the First and Second Defendants had not. The URA also stated that they had emailed the First Defendant on 26 August 2013 to suggest that he resolve the matter of the use of the No 23 Staircase with the Plaintiffs first before making a submission for approval to seal up the opening between No 21A and No 23A.

OS 896

In OS 896, the Plaintiffs claimed, in the main, the following reliefs: A declaration that by reason of s 99(1A) of the LTA, the Plaintiffs, as owners of No 21, were entitled to an easement of a right of way over the No 23 Staircase to enable access to No 21A for all purposes and reasons. An injunction restraining the First and Second Defendants from interfering with the Plaintiffs’ reasonable enjoyment of the said right of way over the No 23 Staircase. Damages for losses suffered by the Plaintiffs by reason of all three Defendants denying the Plaintiffs use of the No 23 Staircase to access No 21A. An order that the First and Second Defendants reinstate the opening between No 21A and No 23A as shown in the plan approved by the URA on 20 June 1995.

The pivotal issue in OS 896 was whether s 99(1A) of the LTA entitled the Plaintiffs to the easement claimed. If it did not, the Plaintiffs’ claims for the other reliefs would fall away.

My Decision

Section 99 of the LTA, insofar as it is material to the case, reads:

Implied easements for right of way and other rights shown in subdivision plan 99.—(1) Where the competent authority has approved the development and subdivision of any land comprised in an estate before or after 1st March 1994 and the subdivision plan has been submitted to the competent authority, there shall be implied, in respect of each lot of the estate which is used or intended to be used as a separate tenement, in favour of the registered proprietor of the lot and as appurtenant thereto, all the easements referred to in subsection (1A).

(1A) The easements which shall be implied under subsection (1)...