It is not widely known that there are private roads in Singapore. When they are within a condominium development, it is very obvious. It is less clear when the private roads are in a landed housing estate. As part of the usual investigation in real estate transactions, lawyers would send legal requisitions to the Land Transport Authority to find out if the road access to a property is a public road. If it is a private road, that property will be landlocked unless there is an easement giving the property owner a right of access.
A recent case has highlighted another consequence of a private road: you cannot park there without the road owner’s consent.
On 6 August 2013, The Straits Times reported (in an article entitled ‘Residents act against illegal parking’) that owners of 8 terraced houses along Jalan Mas Puteh put up signs warning trespassers off the private road fronting their houses. They started clamping the wheels of the trespassers’ cars as well. The article also mentioned that one unhappy driver had been forced to pay $500 in order to have the wheel clamp on his vehicle removed. It is likely that the wheel clamp idea came from private car parks like those in condominium developments and commercial buildings.
Comment
Private roads are private property and unauthorised persons should not enter or park there. This point is highlighted by the case of MCST Plan No 549 v Chew Eu Hock Construction Co Pte Ltd [1997] 3 SLR (R) 743. In that case, the defendant company was found liable for trespass by parking its construction vehicles on the driveway and parts of the common property of the neighbouring condominium and ordered by the court to pay damages.
When a property owner clamps the wheel of a trespasser’s car, he is exercising the remedy of self-help rather than seeking the assistance of the court through legal proceedings. Another self-help remedy involves engaging a towing company to tow away unlawfully parked cars. While it is possible to seek an injunction or damages in legal proceedings against the trespassers, the process takes time and expense. It may also not be practical in the cases where numerous trespassers park their cars on private roads, each for a relatively short period of time.
Warning signs and wheel clamping are commonly used against unlawfully parked vehicles in Singapore. They are also used in England and there is an English case where these measures were approved by the court. In the case of Arthur and Another v Anker and Another [1996] 2 WLR 602, the English Court of Appeal upheld the leasehold owners’ right to wheel clamp the wheels of vehicles unlawfully parked on their property despite warning notices at the entrance and on the property. The notices warned offenders that there will be a wheel clamp release fee and that the vehicles may also be towed away. The court did caution that “a clamper may not exact any unreasonable or exorbitant charge for releasing the car; nor can he justify any delay in releasing the car after the owner offers to pay, and there must be means for the owner to communicate his offer”. This case is likely to be persuasive in any similar dispute in Singapore.
However, warning signs and wheel clamping may not be the best ways to prevent illegal parking. These measures, which require the property owners to carry out active enforcement, do not prevent illegal parking by recalcitrant drivers and only serve as deterrence as well as give the property owners a remedy against the offending driver.
A better way is to prevent illegal parking from happening altogether. One possible method worth exploring is the erection of a manual or automatic gate at the entrance of the private road so that only authorised persons having the required key or remote control device may enter or park. This, however, requires the property owners to incur capital outlay and ongoing maintenance of the gate.
On the other hand, drivers would do well to observe all road and warning signs if they wish to avoid being in the predicament of having their vehicles wheel-clamped or towed away.
A report in the 17 August 2013 issue of The Straits Times (entitled ‘Think twice before parking on a private road’) revealed an interesting piece of information about the Jalan Mas Puteh case.
It said that the Singapore Land Authority records show that Jalan Mas Puteh is actually vested in the Official Receiver as the receiver of a company that has been struck off. It also mentioned that the terraced house owners merely had easements that gave them a right of way over the road. Since the terraced house owners do not own Jalan Mas Puteh, this raises the issue of whether they have the right to take action against drivers who park their cars there unlawfully in the first place. A further interesting question is whether the terraced house owners may look to the Official Receiver to ensure that the right of access to their property is not fettered by illegal and inconsiderate parking along the road.
Without a complete investigation of the terraced house owners’ title and other related documents, it is not possible to be certain what the actual position is. That is probably why it was also reported that "Lawyers would not be drawn into whether these home owners would indeed be able to impose parking penalties".
