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Singapore – Five Essential Things to Know About Easements.

21 January, 2015

 

Legal News & Analysis – Asia Pacific – Singapore –  Construction & Real Estate

 

This article provides an introduction to easements and updates on recent developments in the law of easements in Singapore.

 
1. What Is An Easement?

 
An easement is the right of a landowner (“A”) to use another landowner’s (“B”) land in a certain way. Such a right can be exercised by A over a general or specific part of B’s property, for example, a right of way. An important characteristic of an easement is that it is attached to the property and not to the owner. As such, an easement cannot be sold separately from the land but must be passed on with the land whenever the land is transferred to a new owner.

 
An easement can arise from a simple scenario. Suppose that the corner tip of A’s roof encroaches two inches over B’s property line. This encroachment will require a variance of the usual bylaw and an easement for A’s usage of two inches (even though it only encroaches in the air-space up at the roof top level). In this scenario, the location of the roof-tip easement will be paramount. If the tip abuts into B’s windows, a potential buyer may reject the property. On the other hand, if it is adjacent to an empty wall, it will probably be hard to notice until after the buyer has moved in.

 
2. Why Are Easements Important?

 
Easements are important because they may affect the potential buyer’s decision to purchase a property. Also, where A has a right of way over B’s land, while B has a legal right to fence up B’s land that is affected by the easement, B’s right must not substantially interfere with A’s reasonable use of the easement (Wee Siew Bock and another v Chan Yuen Yee Alexia Eve and another appeal [2012] 3 SLR 1053).

 
There are some practical questions to consider where easements are concerned:

 

  • Will an easement give A more access to B’s property than desired? If so, how will it affect B’s life?
  • Will an easement affect or jeopardize the future resale of B’s property?
  • If an easement is acceptable to B now, will it also be acceptable to a potential buyer?

 
With Singapore becoming increasingly built up, disputes between neighbours over the creation and scope of easements, such as boundary lines, obstruction of through-ways and parking along the public road, have become commonplace. In the past two years, there have been a few notable court cases involving disputes over easements.

 
3. Are There Different Types Of Easements?

 
Yes, easements may be created by: (a) express grant; (b) implication; and (c) prescription. For all registered land in Singapore, the Land Titles Act (“LTA”) is the governing statute. The LTA governs both registered easements (under s 97 of the LTA) as well as unregistered easements preserved on registered land (under s 46(1)(ii) of the LTA). In particular, the LTA sets out the mode of acquisition and extinguishment of easements.

 
Express grants of easements must be made by deed and in the English language only.

 
Implied easements can arise under two provisions of the LTA:

 
(a) Section 98 of the LTA provides for implied easements for the passage or provision of water, electricity, drainage, gas and sewerage through adjoining units in a development. It also imposes an obligation on all parties (including their successors) enjoying the benefit of implied easements to contribute to the cost of construction, maintenance or repair of the sewers, pipes, cables, wires or ducts; and

 
(b) Section 99(1A) of the LTA provides that easements (of way and drainage, for party wall purposes and for the supply of water, gas, electricity, sewerage and telephone and other services) can arise where they are “appropriated or set apart” on the approved subdivision plan, “as may be necessary for the reasonable enjoyment” of the property.

 
Under the common law, an easement by prescription arises through A’s use of B’s land for a continuous period of 20 years, which was done openly without B’s permission and was not effected by force. The rights arising under easements by prescription have been cut down by s 46(1)(ii) of the LTA which provides that an easement by prescription will only be valid if the easement was already subsisting at the date on which the land concerned became registered land. Hence, it would appear that only pre-existing easements by prescription are valid on registered land. No new easements by prescription may arise today vis- à-vis registered land.

 

4. What Are Some Of The Key Recent Case Law Developments Involving Easements?

 
Implied Easement

 
Implied easements have featured in two High Court decisions: Muthukumaran s/o Varthan and another v Kwong Kai Chung and others [2014] SGHC 204 and Andrew John Hanam v Lam Vui [2013] 4 SLR 554.

 
In the first case, the plaintiff owners of a 2-storey shop-house, which did not have a staircase built within their unit, sought, amongst others, a declaration under s 99(1A) of the LTA that they had an implied easement of a right of way over the staircase of the adjacent unit owned by the defendants. However, the plaintiff owners failed to produce the approved subdivision plan in evidence. Although the staircase was drawn on the development plans approved by the authorities, they did not clearly and specifically indicate that the plaintiff owners were to have a right of way over the staircase. Therefore, the High Court dismissed the plaintiff owners’ application.

 
The second case concerned a neighbourly dispute where the plaintiff owner of a 3-storey semi-detached house complained of water leakage in his property and applied to the High Court to gain access to the defendants’ adjoining property, a 2-storey semi-detached house, after the parties had failed to agree on such access. The properties were separated by a 2-storey dividing wall (“the Party Wall”), while a side wall of the third storey of the plaintiff owner’s property sat above his side of the Party Wall (“the Extended Side Wall”).

 
The plaintiff owner applied to inspect the Party Wall, to carry out tests to determine the source of the water leakage and to carry out repairs to the Party Wall and the Extended Side Wall. The plaintiff owner asserted an implied easement “for party wall purposes” that “was necessary for the reasonable enjoyment” of his property under s 99(1A) of the LTA. The High Court dismissed the plaintiff owner’s application on other grounds, but observed that no such implied easement would arise in any event. Even though s 99(2) of the LTA provided for implied ancillary rights and obligations that were reasonably necessary to make the easement implied under s 99(1A) of the LTA for party wall purposes effective, Parliament could not have intended such rights to include rights of access and entry.

 
The High Court also observed that in cases where subdivision approval was given on or after 1 March 1994, a subdivision plan must be tendered in evidence if a party wished to rely on an easement that is “appropriated or set apart” on the subdivision plan to support a contention that the scope and right conferred by the easements enumerated as implied under s 99(1A) of the LTA went beyond what was typically authorised by them.

 
These two cases illustrate the strict approach the Court takes when considering whether an implied easement can arise under s 99(1A) of the LTA. As the Court will be reluctant to extend the scope of the words in s 99 of the LTA, a potential buyer of a property should carefully consider the subdivision plan, or engage a certified surveyor to prepare a subdivision plan, so as to be aware of any easement arising.

 
Easement By Prescription

 
In Fragrance Realty Pte Ltd v Rangoon Investment Pte Ltd [2013] 2 SLR 1007, the subsidiary proprietors of a block of flats in a development erected a retaining wall on the adjacent property owned by the plaintiff, resulting in an encroached area between the retaining wall and the boundary line of the development. Since 1961, residents of the development had used the encroached area to park their cars and store their personal belongings in an aluminium shed put there. The plaintiff’s property became registered land in 1992.

 
In 2012, the plaintiff brought an action against the present subsidiary proprietors of the development to recover the encroached area. One of the arguments raised by the present subsidiary proprietors was that as their predecessors had used the encroached area for more than 20 years preceding the date on which the plaintiff’s property became registered land, an easement by prescription over the encroached area had arisen.

 
The High Court, however, rejected the claim to an easement by prescription over the encroached area because:

 
(a) the parking of vehicles and storage of personal belongings on the encroached area which was enclosed by the retaining wall constituted exclusive possession of that area and completely ousted the right of the plaintiff to use the encroached area; and

 
(b) there was less than 20 years of continuous user of the encroached area with the consent or acquiescence of the former registered owner of the plaintiff’s property.

 

5. Can The Singapore Courts Create, Vary Or Extinguish An Easement?

 
Yes, effective 15 August 2014, the LTA was amended to give the Singapore Courts the power to create, vary or extinguish an easement. This amendment was made following comments by the High Court judge in Botanica Pte Ltd v Management Corporation Strata Title Plan No 2040 [2012] 3 SLR 476 that Parliament should “review the necessity to introduce into our LTA the express power to modify easements”, in view of the “increased activity in the property redevelopment sector” and the likelihood of further reducing litigation.

 
Under s 97A of the LTA, the Court may make an order creating an easement over registered land if the easement is reasonably necessary for the effective use or development of other land (whether registered or unregistered) that will have the benefit of the easement, and is consistent with the public interest. Under s 105A of the LTA, the Court may make an order to vary or extinguish wholly or in part the easement (including any implied easement).

 

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For further information, please contact:

 

Sandra Han, Partner, RHTLaw Taylor Wessing
sandra.han@rhtlawtaylorwessing.com

 
Chen Yiyang, RHTLaw Taylor Wessing
yiyang.chen@rhtlawtaylorwessing.com

 

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