Easements, caveats and rights in another’s land: RES practice questions

An encumbrance is the burden on the property, not the identity of its original beneficiary. Section 2 of the Conveyancing and Law of Property Act includes a mortgage within incumbrance and describes an incumbrancer by entitlement to its benefit. Section 63(2) of the Land Titles Act provides that the registered transferee of a mortgage becomes entitled to the mortgagee's rights, powers and remedies. The stated transaction therefore moves the benefit of the existing security to Summit; it neither discharges the security nor creates a second mortgage. No repayment demand is needed to make this stipulated subsisting mortgage an encumbrance.

The formality of execution does not itself answer whether an estate or permission has been granted. In Tan Hin Leong v Lee Teck Im [2001] SGCA 7, the Court of Appeal construed a deed and held that it created a contractual licence to occupy the property. That is a direct counterexample to the trainee's proposed rule. A licence is not itself an estate in land, while a lease involves a leasehold estate and possession rights; the operative provisions and relevant intention must therefore be examined. Contractual enforceability is not confined to leases, and recognising licences granted by deed does not exclude leases from formal instruments.

Section 140(5) sets out alternative grounds, joined by 'or'. Paragraph (a) concerns a planning-approved change of use and impediment to development. Paragraph (b) separately concerns proposed extinguishment or variation that will not materially injure the person entitled to the benefit. The absence of facts supporting paragraph (a) does not exclude an application relying on paragraph (b). Evidence must satisfy the court; it is neither self-executing discharge nor a substitute for an order. For a notified restriction, section 140(11) then provides for notification of the order, upon which extinguishment takes effect to the stated extent.

Section 17(1) entitles each subsidiary proprietor to shelter from all other parts of the subdivided building capable of affording it. Section 17(2) makes that right an easement burdening those parts. The provision is not confined to common property, so separate ownership of the upper lot does not defeat the stated shelter right. The easement neither requires a new personal licence nor transfers ownership of the sheltering structure. Section 17(3) also expressly provides entry to replace, renew or restore shelter, although no entry dispute is being decided here.

Section 105A(4) states that an order under section 105A(1) does not vary or extinguish an easement, wholly or partly, until an instrument in the approved form has been registered. The final order establishes the court's decision, but the question specifies that the statutory registration step has not occurred. Service of the order and a later sale of the benefited land are not substitutes for registration.