January 11, 2016
An easement is an interest of a landowner which gives him either a positive or negative right to derive some limited advantage from the land of another (Muthukumaran s/o Varthan v. Kwong Kai Chung  SGCA 69 at ), such as a right of way, a right to light or a right to support. It is a species of real property that is “parasitic upon the land” (London and Blenheim Estates Ltd v. Ladbroke Retail Parks Ltd  1 W.L.R. 1278 at 1283).
The Singapore courts have recognised that once an easement exists, it is very difficult to extinguish it (see e.g. Frontfield Investment Holding (Pte) Ltd v. Management Corporation Strata Title Plan No. 938 and others  2 Sing. L.R. (R.) 410 at ). Indeed, prior to 15 August 2014, the Land Titles Act (Chapter 157) (“LTA”) only contained a few ways for an easement to be extinguished or cancelled:
- The same person becomes the owner of both lands (LTA, section 100(1));
- The execution of an instrument of release in the appropriate form (LTA, section 105(1));
- The expiry of the period of time for which the easement was intended to subsist (LTA, section 106(1)(a));
- The occurrence of any event upon which the easement was intended to determine (LTA, section 106(1)(b)); or
- The abandonment of the easement (LTA, section 106(1)(c)).
Notably, the LTA did not provide for an easement to be varied or extinguished, either in whole or in part, by reason of a change of use of the land in question, or by reason of changes in the character of the land or the surrounding neighbourhood.
This was exactly the obstacle which confronted one of our clients, who had little recourse under the statutory provisions stated above to remove an easement encumbering the land which they had purchased, even though the easement has become unnecessary over the years and no longer served its original purpose.
An obsolete easement
The land purchased by our clients comprised an apartment block with shops on the first storey (the “Development”). It was subject to an easement for the right of way over the driveway on the land (the “Easement”), which dissected the land into two unequal parts, as shown below.
The Development was constructed towards the late 1960s and early 1970s, together with a landed housing estate further south. The housing estate included a network of private roads (the “Estate Roads”), which allowed the residents of the housing estate to gain access to the main public road situated towards the north of the Development, but only via the Easement. In other words, the Easement was created as part of a larger network of roads serving the housing estate, which included the Development as well.
One point of access to this Easement is situated roughly at the southeast corner of the Development, with the Easement taking a C-shaped path through the Development, leading to the other access point situated roughly at the northeast corner of the Development. Both access points were connected to the Estate Roads.
For some reason, the strip of land fronting the Development between the two access points was neither a public road nor an Estate Road, leaving a gap in the continuity of the Estate Roads which led to and from the main road. Hence, the Easement over the Development was necessary, as there were no other means for the residents of the housing estate to gain access to and from the said main road.
In 1980, however, a two-way street was constructed along the easterly boundary of the Development. This new public road provided the residents with a direct link between the housing estate and the main road. This naturally meant that the Easement over the driveway in the Development was no longer required by the residents of the housing estate to gain access to the main road, and vice versa. Indeed, the straight road now offers a much faster and shorter route between the housing estate and the main road.
Furthermore, the C-shaped driveway was converted to a one-way road in 1990. This was effected by a “NO ENTRY” sign which was placed at one of the access points to control the directional flow of traffic. It thus became impossible for residents of the housing estate to use the Easement to gain access to the rest of the housing estate from the main public road.
Obviously, the Easement had been rendered obsolete, given the reconfiguration of the network of roads serving the housing estate, as well as the change in the nature of the Easement itself.
With this in mind, our clients made an application to the Singapore Land Authority to cancel the Easement in September 2013 under section 106(2) of the LTA, on the ground that there is non-user of the Easement for a period exceeding 12 years. Unfortunately, this application was not approved, simply because there were objections by a mere handful of landowners (out of a total of over 200) who were entitled to the benefit of the Easement.
There was absolutely no way to vary or cancel the Easement under section 106(2) of the LTA, so long as any of the landowners who are entitled to its benefit raises an objection, because this would immediately defeat any claim of non-user or abandonment.
This episode only served to expose the unsatisfactory state of the law of easements in Singapore at that juncture, because the Easement has evidently become unnecessary (and has remained as such for more than two decades), even though it plainly and manifestly curtailed the full utilisation and redevelopment potential of the site by our clients, who have already obtained a Grant of Written Permission from the Urban Redevelopment Authority of Singapore to redevelop the land.
A new avenue – Section 105A of the LTA
The turning point for our clients came when LTA, section 105A came into effect on 15 August 2014:
Power of court to vary or extinguish easements
105A.—(1) The court may, on application by any person with an interest in a servient tenement, make an order to vary or extinguish wholly or in part the easement (including any implied easement) over the servient tenement.
(2) An order under subsection (1) may be made upon the court being satisfied —
(a) that by reason of a change of use of the land affected, as approved by planning permission within the meaning of the Planning Act (Cap. 232), or of changes in the character of the land or the neighbourhood, or other circumstances the court considers material, the continued existence of the easement will, unless varied or extinguished, impede the development of the land for public or private purposes without securing practical benefits to the persons entitled to the easement; or
(b) that the proposed variation or extinguishment will not substantially injure the persons entitled to the easement.
(3) An order varying or extinguishing wholly or in part an easement under subsection (1) may direct the applicant to pay to any person entitled to the benefit of the easement such sum by way of compensation as the court may think just to award under one, but not both, of the following heads:
(a) a sum to make up for any loss or disadvantage suffered by that person in consequence of the variation or extinguishment;
(b) a sum to make up for any effect which the easement had at the time when it was imposed in reducing the consideration then received for the land affected by it.
(4) An order made under subsection (1) shall not vary or extinguish wholly or in part an easement until an instrument in the approved form has been registered.
This legislative intervention was Parliament’s response to the suggestion made by the High Court in the case of Botanica Pte Ltd v. Management Corporation Strata Title Plan No. 2040  3 Sing. L.R. 476 at . Towards the end of his judgment, Justice Steven Chong observed that in most other Commonwealth jurisdictions that similarly operate a Torrens system of land registration, an express statutory power is already conferred on the courts to modify easements.
He could not discern any particular reason why such a power was not included in the LTA, and urged the legislature to review the necessity of introducing such statutory power, given the “increased activity in the property redevelopment sector”.
When the new section 105A of the LTA came into force, we lost no time in filing an application on behalf of our clients for the extinguishment of the Easement under this new provision, on the basis that the character of the land or the neighbourhood has changed, and the continued existence of the Easement will, unless varied or extinguished, impede the development of our clients’ land without securing practical benefits to the landowners entitled to the use of the Easement.
Furthermore, our clients took the position that the proposed extinguishment of the Easement would not, or would not substantially, injure the landowners who are entitled to the Easement. Even if they would suffer any loss or disadvantage, the court has the discretion to award them with compensation.
The court agreed with our client’s submissions, and gave the order to extinguish the Easement.
The court’s decision to grant the order for the extinguishment of the Easement in the present case is no doubt a move in the correct direction, and is certainly consistent with the long-term, forward-looking approach of Singapore’s land use planning principles.
This successful application under the new section 105A of the LTA has also demonstrated that the enactment of this provision is timely. As observed by the Court of Appeal recently in Muthukumaran s/o Varthan v. Kwong Kai Chung  SGCA 69 at , our courts are likely to see more disputes between neighbours over the creation or scope of easements in the future, as Singapore becomes increasingly built-up.
Given the acute land scarcity in Singapore, trade-offs between compelling priorities may sometimes be inevitable, and the new section 105A of the LTA has specifically empowered the court to strike a right balance – to achieve an efficient use of land, and at the same time, to protect the interests of landowners who enjoy the use of easements in deserving cases.