In a recent case, the High Court refused a property owner the right to access his neighbour’s property to carry out certain acts in order to stop water leaks in his property. The acts included an inspection of the party wall, tests to determine the cause of water leaks and repairs to the party wall (see the case of Andrew John Hanam v Lam Vui and another [2013] SGHC 159).

Under the common law, there is no general right for a property owner to access his neighbour’s property to carry out repairs to his own property. Therefore, unless his neighbour consents, such a right if it exists has to come from some other source like a contractual document or statutory instrument.

In this case, there was an easement in the original transfer registered in 1974 that gave the property owner an express right to use the boundary wall "as a party wall". Unfortunately, it did not confer him with the right to enter his neighbour’s property to inspect, conduct tests or carry out repairs to his own property.

Instead, the property owner argued that section 99 of the Land Titles Act (Cap. 157) (the  LTA) gave him an implied easement that allowed him access to his neighbour's property for the purposes of carrying out those acts because it was “necessary for the reasonable enjoyment” of his property. However, he failed in his arguments for a number of reasons.

Firstly, estates (such as the one the parties were in) where subdivision approval was granted prior to 1 March 1994 are excluded from the application of Section 99 of the LTA. The judge also relied on statements in the Report of the Select Committee on the Land Titles Bill (Part 3 of 1993) to hold that, even if the properties fell within Section 99 of the LTA, the specific easements claimed would need to be “appropriated or set apart” on the subdivision plan in order to be implied by law. This was because the easements claimed by the property owner were beyond the scope typically authorised by the easements mentioned as implied under Section 99 (1A) of the LTA i.e. they went beyond the easement of support for party wall purposes. The property owner also failed to persuade the judge that the phrase “as may be necessary for the reasonable enjoyment of the lot” in the section was wide enough to imply the easements he claimed.

Not every property where subdivision approval was granted on or after 1 March 1994 property would be covered by Section 99 of the LTA. The section has a number of requirements that have to be complied with including the requirement that the property be within an estate and be used or be intended for use as a separate tenement.

As mentioned by the judge, in England, legislation like the Access to Neighbouring Land Act 1992 and the Party Wall etc Act 1996 now enable an application for a court order to access a neighbour's property to carry out repairs.

The Access to Neighbouring Land Act 1992 gives the English High Court and county courts the power to make an “access order” upon satisfaction of certain conditions including that the works are reasonably necessary for the preservation of the owner’s property and would be substantially more difficult to carry out without that order. The Party Wall etc Act 1996 goes further and gives a property owner access rights to his neighbour’s property to do certain things (including to alter, repair or rebuild party walls) without the need for any court order. However, such rights are subject to certain requirements including the service of a notice and the payment of compensation for damage where applicable.

These English Acts fill some of the gaps in the common law but there are no similar Acts in Singapore. It may perhaps be timely to consider if such legislation should be passed here as well.