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Judge calls for power to amend law

He says courts should be able to modify access rights to property

Published on May 10, 2012

By K. C. Vijayan, Law Correspondent


A HIGH Court judge has called for the law to be changed to give the courts the power to modify access rights to one's property where getting there involves crossing someone else's property.

Justice Steven Chong, in a judgment released yesterday, wrote that, given the increased activity in the property sector, such a move would be 'perhaps timely', in that it would save disputes over access going all the way up to the High Court.

These rights of way, known as easements, enable the owners of a property to walk across another's property in order to get to their own.

Several disputes involving private properties have played out in the last few years; the issue is expected to crop up time and again as more parcels of land with such easements are acquired and redeveloped.

Take, for example, the dispute between the owners of Heritage Apartments and the developers of an adjoining upcoming project known as Ardmore Three in Ardmore Park.

An electrical substation about the size of a garage, which belongs to and services Heritage Apartments, stands on land adjoining Ardmore Three.

A pathway, used mainly by SP PowerGrid workers, runs from Heritage Apartments through Ardmore Three's land for access to the substation.

Ardmore Three developers sought to realign this access route to make room for a garden which they have designed for the condominium.

Their lawyers from Lee & Lee went to court to seek a declaration that its proposed realignment of the right of way would not affect Heritage Apartment owners' access to the substation.

The issue turned on whether the courts had the power under the Land Titles Act to allow a realignment of the footpath, but the Act was silent on this.

Lawyers from Incisive Law, representing Heritage Apartments, said the courts lacked powers under the Act to modify such registered easements.

Justice Steven Chong said he agreed with the observation that the Act had not granted such powers, express or implied.

Surveying similar laws in other countries like New Zealand, Australia and Canada, he made clear that the court's power to modify easements can come only from the Act itself. However, he said, it did not mean that the easement could not be modified on the court's approval - provided the affected party was not harmed or inconvenienced.

He cited a Court of Appeal judgment in a previous case, which held that the growing scarcity of land here raises 'a public-interest element' in letting land be developed to its optimal potential as permitted by planning law, and that there was also 'a further public interest to avoid litigation'.

He found that Heritage Apartments would suffer no inconvenience if the easement was realigned; after all, the main users of the pathway, SP Power, did not object to the proposed move.

Justice Chong, noting that the power to modify easements is expressly provided for in the law in some Commonwealth countries, adding: 'I have not been able to discern any particular reason why the express power has not been included in the Land Titles Act.'

It is thus in the public interest to avoid litigation and amending the law would curb such disputes, he said.

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