TSM Development Pte Ltd v Leonard Stephanie Celine nee Pereira

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 September 2005
• Neutral Citation: [2005] SGCA 41
• Date: 03 September 2005
• Subject Matter: Land,Property subsequently converted to registered land,Adverse possession,Whether registered proprietor's title to portion of land extinguished by adverse possession,Sections 50, 172(7), 172(8) Land Titles Act (Cap 157, 1994 Rev Ed),Adverse possessor acquiring possessory title to part of property which was unregistered land
• Docket Number: Civil Appeal No 118 of 2004
• Published date: 14 September 2005
• Defendant Counsel: Gan Hiang Chye and Ang Keng Ling (Khattar Wong)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Hee Theng Fong, Tay Wee Chong and Paul Tan (Hee Theng Fong and Co)

13 September 2005 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

1 The present appeal raises the question as to whether the appellant’s title to a strip of land (“the disputed strip”) had been extinguished by adverse possession on the part of the respondent. The High Court held that the appellant’s title had been extinguished. This is the appellant’s appeal against that ruling.

The facts

2 The appellant, a property development company, acquired 45 Cotswold Close (“No 45”) in December 2002. The respondent is the registered owner of the immediate adjacent property, 43 Cotswold Close (“No 43”). The disputed strip is part of No 45. However, it currently lies within the compound of No 43.

3 No 45 and No 43 were part of a housing estate called Braddell Heights Estate which was developed in the early 1950s by a company called Braddell Heights Estate Limited (“BHE Ltd”). The original purchaser of No 45 from BHE Ltd was one Bherumal Atmaram Lalwani (“Lalwani”). In 1963, Lalwani sold it to Chua Chee Ming, who in 1968, in turn, sold it to Chua Fond Nam and two others (“CFN”). In 1971, CFN sold the property to Chee Hoe Hong (Private) Limited (“CHH Ltd”). In March 1985, the property was brought under the Land Titles Act by the Registrar of Titles and a qualified certificate of title (“qualified title”) was issued. In 1989, CHH Ltd sold the property to a couple, Roy and Carol Eapen (“the Eapens”). On 23 December 2002, the Eapens sold and transferred the property to the appellant. A year later, on 23 December 2003, the caution on the certificate of title of the property was cancelled at the appellant’s request.

4 As regards No 43, in 1951, one Chang Hoi Phin purchased it from BHE Ltd. In 1971, Chang sold it to Edward George Leonard (“Leonard”), who was the husband of the respondent. A qualified title was issued for No 43 on 8 May 1976. The respondent inherited the property from her husband who passed away on 8 April 2003. The transfer of the property to the respondent was registered on 3 December 2003 and on the same day, the caution on the certificate of title was cancelled.

5 From as far back as 1971, when Leonard and the respondent moved into No 43, there was a chain fence and brick wall (“the fence”) separating No 43 and No 45. However, due probably to an error in the erection of the fence, the disputed strip, which belonged to No 45, fell on that side of the fence which lay within the compound of No 43. Leonard and the respondent had all along been using the disputed strip as part of their garden.

6 It was only in September 2003, when the appellant commissioned a topographical survey, that it was discovered that the fence separating No 45 and No 43 was not erected correctly along the legal boundary between the two properties but had, in fact, encroached onto the land falling within No 45. Accordingly, the appellant requested the respondent to move the fence to its proper place. The respondent replied in December 2003 claiming that in view of the prolonged adverse possession of the disputed strip by the respondent and her predecessors-in-title, which was for more than 30 years, the appellant’s title to the disputed strip had been extinguished.

7 Thus, the appellant instituted the present action seeking, inter alia, a declaration that its title to the disputed strip had not been extinguished by adverse possession on the part of the respondent. The respondent in turn counterclaimed for a declaration that she had acquired title to that strip by adverse possession.

8 There is no dispute that the fence has been in that position since the respondent moved into No 43 in 1971. The issue is whether, as a matter of law, the respondent had complied with the statutory requirements to extinguish the appellant’s title to the disputed strip.

The statutory scheme

9 Prior to 1 March 1994, the date on which the Land Titles Act 1993 (No 27 of 1993) (“the 1993 LTA”) came into operation (“operative date”), adverse possession of unregistered land was governed by ss 9(1) and 18 of the Limitation Act (Cap 163, 1985 Rev Ed). As for registered land, it was governed by s 42 of the Land Titles Act (Cap 157, 1985 Rev Ed) (“the 1985 LTA”): see Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR 726 (“Balwant Singh”) at 729–730, [12]–[13]. The 1993 LTA repealed the 1985 LTA.

10 Under the 1985 LTA, adverse possession of registered land was allowed only to the extent provided in s 42 which read:

42.—(1) Any person in adverse possession of registered land who, if that land had not been brought under the provisions of this Act would have become entitled thereto by virtue of that adverse possession, may apply to the Registrar for a certificate of title to that land, provided that not less than 12 years have elapsed since the land was brought under the provisions of this Act, or since the entry in the land-register of the most recent memorial of registration or notification of an instrument (other than an instrument of statutory obligation) affecting that land.

(2) Except as in this Division provided, no title to land adverse to or in derogation of the title of a proprietor shall be acquired by any length of possession by virtue of the Limitation Act or otherwise, nor shall the title of any proprietor be extinguished by the operation of that Act.

(3) Nothing in this Act affects the operation of the Limitation Act with respect to the right of a person in adverse possession of land comprised in a qualified certificate of title where the possession commenced before the land was brought under the provisions of this Act and that right has been protected by caveat.

11 Before 1 March 1994, in the case of unregistered land, it was possible to acquire possessory title provided that the adverse possessor satisfied s 9 of the Limitation Act which read:

9.—(1) No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claims, to that person.

(2) Nothing in this section or in section 11(2) shall be deemed to affect the provisions of the Government Proceedings Act, or to apply to any person registered under or by virtue of the provisions of the Land Titles Act as the proprietor of the land sought to be recovered, or to any person claiming through a person so registered, except to the extent that such Act so provides or permits.

Section 18 of the same Act provided that at the end of the limitation period laid down in s 9(1), the right and title of the owner to the land would be extinguished.

12 The 1993 LTA brought significant changes to the law on adverse possession with regard to both unregistered and registered land. The object of this Act was to abolish adverse possession altogether, subject to the preservation, through certain transitional provisions, of possessory rights which had already crystallised.

13 With regard to unregistered land, the 1993 LTA effected this through s 177(1) which inserted a new sub-s (3) to s 9 of the Limitation Act as follows:

This section shall not apply to an action to recover land from a person by reason only of his unauthorised occupation of the land.

By s 177(2), the 1993 LTA also repealed s 16 of the Limitation Act (which does not concern us here). However, as regards adverse possession rights which had already crystallised as at 1 March 1994, s 177(3) provided that:

Nothing in this section [s 177, which inserted s 9(3) to, and repealed s 16 of the Limitation Act] shall —

(a) enable any action to be brought which was barred by the Limitation Act immediately before the commencement of the Land Titles Act 1993 (referred to in this subsection as the appointed day);

(b) affect any action commenced before the appointed day; or

(c) revive any title to land which was extinguished by the operation of the Limitation Act in force immediately before the appointed day.

The effect of s 177(3) was to preserve possessory title to unregistered land which had already been acquired as at 1 March 1994.

14 With the omission of some sections, the 1993 LTA became the Land Titles Act (Cap 157, 1994 Rev Ed) (“the new LTA”) with effect from 15 March 1994. Section 177(3), being a transitional provision, was one of the provisions omitted from the new LTA. It is clear, however, from Balwant Singh at 732, [24] that this subsection remains in force by virtue of s 5 of the Revised Edition of the Laws Act (Cap 275, 1995 Rev Ed).

15 The abolition of adverse possession with regard to registered land was addressed in s 50 of the new LTA which read as follows:

Except as provided in section 172(7) and (8), no title to land adverse to or in derogation of the title of a proprietor of registered land shall be acquired by any length of possession by virtue of the Limitation Act or otherwise, nor shall the title of any proprietor of registered land be extinguished by the operation of that Act.

16 Thus, possessory title which had already been acquired under s 42 of the 1985 LTA was preserved in accordance with ss 172(7) and 172(8) of the new LTA which read:

(7) Where at any time before 1st March 1994 a person —

(a) was in adverse possession of any registered land; and

(b) has lodged an application for a possessory title to the land under the provisions of the repealed Act [the 1985 LTA] and the application has not been withdrawn but is on that date pending in the Land Titles Registry,

the application shall be dealt with in accordance with the provisions of the repealed Act in force immediately before that date.

(8) Where at any time before 1st March 1994 a person —

(a) was in adverse possession of any registered land; and

(b) was entitled to lodge an application for a possessory title to the land under the provisions of the repealed Act which were in force immediately before that date,

he may, within 6 months of that date make an application to court for an order to vest the...