Tan Beng Swee v Ho Lam Poh and Another

• Jurisdiction: Singapore
• Judgment Date: 04 December 1997
• Date: 04 December 1997
• Docket Number: Originating Summons No 953 of 1996
• Court: High Court (Singapore)

Tan Beng Swee

Plaintiff

and

Ho Lam Phoh and another

Defendant

[1997] SGHC 324

Christopher Lau JC

Originating Summons No 953 of 1996

High Court

Land–Adverse possession–Whether encroachment of defendant's retaining wall and fence on portion of plaintiff's property gave defendant adverse possession over plaintiff's property separated by the wall and fence–Effect of claim of adverse possession–Abrogation of claims of title by adverse possession–Exceptions–Section 42 Land Titles Act (Cap 157, 1985 Rev Ed)–Sections 50, 172 (7) and 172 (8) Land Titles Act (Cap 175, 1994 Rev Ed)

The plaintiff was the registered owner of 131 Tanah Merah Kechil while the defendants were the owners of the adjoining property. A retaining wall and fence separated both properties but these were not built on the correct boundary line of the properties and instead, were built on a portion of the plaintiff's property, resulting in the separation of a portion of the plaintiff's property from the rest of his property. Therefore, the plaintiff sought: (a) a declaration that the defendants' property had encroached upon his adjoining property; (b) an order that the retaining wall and fence separating the plaintiff's property and the defendants' property be set back to the correct boundary line separating the two properties; and (c) an order that a caveat that the defendants lodged in respect of part of the plaintiff's property be removed.

It was the defendants' position that first, the separated portion of the plaintiff's property had been enclosed by the retaining wall and fence such that access to it was barred to the plaintiff and this constituted adverse possession of the separated portion by them. Secondly, as title issued on the plaintiff's property was qualified title, under the Limitation Act (Cap 163, 1996 Rev Ed), the defendants had already acquired title by adverse possession to the separated portion. The plaintiff argued that the fact of the retaining wall and the fencing off did not amount to adverse possession and the claim had to be dealt with by the exceptions under the Land Titles Act (Cap 157, 1994 Rev Ed) (“the Act”).

Held, allowing the claim:

(1) Given that the evidence established that the effect of the retaining wall and the fence barred the plaintiff from access to the separated portion and as that separated portion formed one contiguous portion of the defendants' property, this amounted to adverse possession: at [11].

(2) Under s 50 of the Act, all claims for adverse possession were abrogated except in two instances: first, under s 172 (7) and secondly, under s 172 (8) of the Act which required the lodgement of an application for possessory title. The defendants had adopted neither of the courses set out in these provisions because they could not do so on 20 June 1984, the date when the plaintiff's property was registered under the provisions of the repealed Land Titles Act (Cap 157, 1985 Rev Ed). Hence, they had not completed the necessary 12 years of adverse possession. As of 20 June 1984, no rights had accrued in this action. The scheme of the Act did not provide for inchoate interests crystallising before 1 March 1994: at [13] to [21].

Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR (R) 7; [1996] 2 SLR 726 (distd)

Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 2 All ER 225 (folld)

Soon Peng Yam v Maimon bte Ahmad [1995] 1 SLR (R) 279; [1996] 2 SLR 609 (folld)

Tan Beng Siew v Choo Eng Choon [1965] 1 MLJ 69 (folld)

Tan...