Introduction

Generally, for an easement to arise in connection with registered land, it must be acquired by registration in accordance with the provisions of the Land Titles Act (Chapter 157) (the “LTA”). In Muthukumaran s/o Varthan and anor v Kwong Kai Chung and ors [2015] SGCA 69, the Court of Appeal was presented with the question of whether or not an easement could be implied under the Land Titles Act.

The Appellants in this case, who were the owners of a two-storey shop-house that did not have its own staircase to the second storey, had commenced proceedings in the High Court against the Respondents seeking, inter alia, a declaration that they had an implied easement of a right of way over the staircase in the 1st and 2nd Respondents’ adjacent shop-house. According to the Appellants, the easement was necessary in order to gain access to the second floor of the Appellants’ own shop-house.

The High Court dismissed the Appellants’ claim and held that no implied easement had arisen over the staircase. The High Court decision was upheld on appeal by the Singapore Court of Appeal.

The 1st and 2nd Respondents were successfully represented by Adrian Wong, Yan Yijun and Ang Leong Hao, both before the High Court Judge as well as the Court of Appeal.

Brief Facts

The 1st and 2nd Appellants were the joint-registered proprietors of 21 Madras Street Singapore (“No 21”). The 1st and 2nd Respondents were the  joint-registered  proprietors  of  23 Madras Street Singapore (“No 23”) since 16 July 2010.

No 21 and No 23 were part of a row of four two-storey conservation shop-houses in the Little India area (the “Properties”). The other  two  properties  in  the   row  were  17 Madras Street Singapore  and 19 Madras Street Singapore (“No 19”). Each of the Properties stood on a separate lot of land and had a separate Certificate of Title issued. The Properties were purchased by a common owner in 1993 following a tender concluded with the Singapore Government. At that time, none of the Properties had a permanent staircase; rather, each only had a bare ladder for access to the second floor.

In 1995, addition and alteration works (the “Works”) were carried out on the Properties. The scope of the Works included building two new staircases, one inside No 19 and the other inside No 23 (the “No 23 Staircase”). Part of the firewalls on the upper floors of the Properties were also demolished to allow access between the units. By reason of the Works, No 21 had no staircase access to its upper floor, but such access could be obtained by using the No 23 Staircase and the opening between No 21 and No 23 on the upper floor.

Sometime in 2010, the Appellants claimed that they had a right to use the No 23 Staircase to gain access to the upper floor of No 21 and demanded access to it. The Appellants’ demands were rejected by the 1st and 2nd Respondents.

The Appellants subsequently commenced proceedings in the High Court against inter alia the Respondents. Their claim broadly was that they were entitled to an implied easement of a right of way over the No 23 Staircase under section 99(1A) of the LTA.

Holding of the High Court

In dismissing the Appellants’ claim, the High Court held inter alia:-

  1. section 99(1) of the LTA had no application unless the competent authority had approved both the development and subdivision of the land over which the easement was claimed, although it did not require that the approvals be granted simultaneously;
  2. the Appellants were mistaken in their belief that the Certified Plan dated 19 June 1997 (the “1997 CP”), for the lot on which No. 23 was situated, was the “subdivision plan” contemplated and required by sections 99(1) and 99(1A) of the LTA for the implication of an easement. The 1997 CP was nothing more than a survey which showed pre-existing lots. It was not a plan submitted to the competent authority for subdivision approval. The Appellants had therefore failed to produce the approved subdivision plan in evidence;
  3. in so far as section 99(1A) of the LTA required the implied easement claimed to be “appropriated or set apart for those purposes respectively on the subdivision plan submitted to the competent authority” the Appellants’ failure to adduce the subdivision plan in evidence was fatal to its case; and
  4. even if the court was entitled to rely on the development plan for the Works in considering whether an easement could be implied, section 99(1A) of the LTA did not entitle the Appellants to the easement claimed. The phrase “appropriated” or “set apart” under  section 99(1A) meant that any right of way had to be clearly and specifically indicated. The mere fact that the No 23 Staircase was drawn on the development plan did not suffice.

Holding of the Court of Appeal

The Singapore Land Authority made submissions for the appeal at the invitation of the Court of Appeal. After hearing submissions from all parties, the Court of Appeal upheld the decision of the High Court and dismissed the appeal. The Court of Appeal firstly noted the importance of the appeal as it concerned issues which  the courts are likely to face in  future as Singapore became increasingly built-up, with disputes between neighbouring land owners becoming more frequent.

The Court of Appeal went on to hold that :-

  1. a party seeking to claim any easement must first establish that the right asserted had the essential characteristics of an easement and also go further to show that the easement had been acquired;
  2. the party seeking to assert that an implied easement had arisen must :- (1) adduce the subdivision plan in evidence; and (2) show that the easement is “appropriated or set apart” on the subdivision plan;
  3. the phrase “as may be necessary for the reasonable enjoyment of the lot” in section 99(1A) serves a limited purpose of determining how implied easements are to be exercised and is not a standalone ground available to confer additional rights.

Even though the Court of Appeal was “prepared … [to take] the Appellants’ case at its highest …”, there was an insurmountable obstacle that stood in the way of the appeal and that was the requirement that the easement be “appropriated or set apart” on the subdivision plan. The purported easement was not indicated on the 1997 CP. Even if the court read the development plan for the Works together with the 1997 CP, it did not take the Appellants’ case much further as the development plan merely had a drawing of the No 23 staircase and did not go on to indicate that an easement arose in the Appellants’ favour.

The Court of Appeal further held that the court would be entitled to have regard to documents other than the subdivision plan (presumably to determine the extent of any implied easement) if there was an indication in the subdivision plan itself that there was an easement as asserted.

Concluding Words

The decision of the Court of Appeal in this case is a timely one as it has shed light on an area which to date not been fully elucidated by local jurisprudence. The case demonstrates the reluctance of the courts to interfere with property rights and has mandated a cautious approach towards the issue of implied easements.