Introduction to Property Law

Property Law 1. Introduction Gray & Gray: “[P]roperty is not a thing but rather a relationship which one has with a thing. It is infinitely more accurate to say that one has property in a thing than to declare that the thing is one’s property.” 1. OVERARCHING PRINCIPLES OF PROPERTY LAW • The owner of a property right can normally: o In case of dispute, recover the property itself (as opposed to merely recovering damages) o Transfer his right to another o Enforce his rights against at least some 3rd parties • Limits to proprietary rights: o Ultimately a zero sum game à thus, courts have to balance between competing claims o Because the nature of property rights bind the world at large and also pass to successors, there are more restrictions imposed on it • Always be clear about the content and the type of right you are referring to!!! o Proprietary rights are protected by tort at common law § Only have to prove the grater right of possession (relativity of title) • What is property? o LEGAL DEFINITION: ‘Property’ refers to priority of certain kinds of rights of possession or use i.e. ordinarily more entitled to possess and use it than anyone else o LAYMEN DEFINITION: As a subject matter e.g. the land/item itself. Something that is valuable and can be traded: more expansive definition of property as a right, including choses in action, which are technically personal rights. • Necessary but NOT sufficient to establish a proprietary right: o Definable or certain o Identifiable by 3rd parties o Capable in its nature of assumption by 3rd parties o Have some degree of permanence or stability 2. CLASSIFICATION OF RIGHTS A. Distinction between Real and Personal Property • Real property: property that can be recovered in a real action i.e. can recover the property • Personal property: property that cannot be recovered in a real action, only a personal action i.e. only damages B. Distinction Between Proprietary and Personal Rights • Rights in personam v rights in rem • The distinction between rights in rem and rights in personam is one of exigibility, or put another way, ‘against whom can the rights be enforced?’ • Although there may be limited exceptions, such rights are generally enforceable against the world at large, and instead of following particular persons, follow particular things • Rights in rem (property rights): Enforceable against the world – includes both real and personal property • Rights in personam (personal rights): Enforceable against a party e.g. contract, tort o Contractual rights are often personal rights – and this is why contracts generally do not provide an adequate solution when it comes to property (Birks) •

It has been suggested that before a right can be classified as a property right, it must possess the following attributes: o ‘It must be (i) definable, (ii) identifiable by third parties, (iii) capable in its nature of assumption by third parties, and have some (iv) degree of permanence or stability’ — Lord Wilberforce in National Provincial Bank v Ainsworth [1965] AC 1175, 1247-1249 o However, although these are necessary attributes, their presence is not sufficient to establish a right as a proprietary one – e.g. human organs and tissues

3. CLASSFICATION OF PROPERTY • Property can be classified in various ways: (i) According to the nature of the thing o Immovable and movable o Tangible and intangible (ii) According to the nature of the right over the thing o Real and personal • If the holder of the property can recover the thing itself by way of a real action, then the property is real property • Land is tangible but immovable – real property

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Property Law • • •

Chattels are tangible and movable – personal property The classification is thus not entirely dependent on the specific recoverability of the thing, but rather, on whether or not the specific recoverability is historically by way of real action Leases – ‘chattels real’ – recoverable by not by way of a real action

4. KINDS OF PROPRIETARY INTERESTS A. Ownership • Refers therefore not the quality of one’s interests but its content • In this respect, ownership has been defined as the residue of rights in a thing remaining in a person after the specific rights over it have been granted to others • Standard incidents of ownership are: (i) right to possess (ii) right to alienate (iii) the right to enjoy (iv) the right to transmit after death (v) the right to exclude others from enjoyment or possession • The largest bundle of rights which a person may have over a thing or res B. Lesser Interests • Lesser interest (i.e. interest in the land which is less than the fee simple) which may also be proprietary may be cared out of ownership • The question of what types of lesser proprietary interests may be carved out of ownership depends on the nature of the thing • Generally speaking, a greater variety of lesser proprietary interests may be carved out of ownership of land than ownership of chattels • •

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Feature of ownership of land, is that ownership may be divided into estates (slices of time – temporal element) so that different people may own the land at different times In Singapore there are three different types of estates o Freehold estate (fee simple) o Leasehold estate o Statutorily created estate in perpetuity E.g. A, owner, leases land to B. Whereas B has the right to immediate and exclusive possession for that slice of time, A likewise has a proprietary interest in the reversion, with a right to possession when B’s lease is up (reversion can be as short as a day) Other than dealing in proprietary interests in slices of time, other lesser interests may also be carved out of ownership: proprietary interests by way of security The 2 most commonly encountered security interests over land are the mortgage and the charge Technically, a mortgage operates by an outright conveyance of the borrower’s title with a proviso that the lender will reconvey when the borrow has performed his obligations under the loan – thus, the interest of the lender-mortgagee is technically one of ownership and it is the interest of the borrower-mortgagor that is the lesser ownership, known as the ‘equity of redemption’ A charge creates a security interest in the thing but without an outright conveyance of the thing itself – thus, the lender chargee’s interest is the lesser interest carved out of ownership Other proprietary rights – easements, restrictive covenants

C. Legal and Equitable • Some proprietary rights are recognized in equity but not at common law – e.g. the charge and the restrictive covenant • Many legal proprietary interests also have an equitable counterpart • One of the main, and most important differences between a legal and equitable interest in land is the extent of enforceability of the interest. • A legal interest in land is enforceable against the whole world, while an equitable interest in land is enforceable against the whole world except the bona fide purchaser for value of the legal interest without notice 4.2 DETERMINING THE TYPE OF INTEREST • Whether one holds ownership of the land is an objective question of fact; labels do not matter o Distinctive degree of overall territorial control e.g. right to exclude strangers § Kaiser Aetna v United States

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Property Law General immunity from uncontracted supervisory regulation e.g. not under the control and surveillance by 3rd party § Westminster CC v Clarke Though the agreement may be one of easement, whether it is an easement or ownership turns on whether the user has the “freedom to act as if he was the owner of the land”: Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee Australia Ltd Whether one holds lease or license of the land is an objective question of fact o Courts will consider the “factual matrix and genesis” of the written agreement, and the facts would prevail when reality contradicts the language of the license § Antoniadex v Villiers o

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5. OWNERSHIP OF LAND IN SINGAPORE • It is recognized today that a distinction is to be drawn between the two different strata of airspace, the ‘lower stratum’ and the ‘upper stratum’ respectively: Bernsterin of Leigh (Baron) v Skyviews & General Ltd • The idea that a landowner may do as he will on his own land regardless of the damage he may cause to neighbouring and unless his actions amounted to a private nuisance or was otherwise contrary to an easement has likewise been severely curtailed. • Xpress Print Pte Ltd v Monocraft Pte Ltd [2000] 3 SLR 545 (SGCA) – groundbreaking decision o Held that a landowner had a natural right of support for any bulding on his land, thereby overturning long-standing principle of Dalton v Angus o In Dalton v Angus, it was established that the natural right for land only extended to land in its ‘natural’ state, i.e. with no buildings on it – the only exception to this was the easement of support, which was inapplicable in this case – thus the appellants could only succeed on negligence o However, CA declined to follow Dalton – held at [47] • ‘the right of support cannot be based solely on principles of natural philosophy’, but must instead take root in the terra firma of the principles of reciprocity and mutual respect of each others’ property’ o This is a nudge by the courts towards the position that ownership of land is as much as a social obligation as it is a private right o Facts: Pf erected an eight-storey building in 1996 o Df started building works in 1997 – contractors erected temporary retaining wall and began excavation works – unfortunately retaining walls not strong enough and cracks appear in Pf’s driveway due to subsidence of the soil under the driveway – Pf sued for damages to his building o CA held Df liable even though Pf did not have an easement of support for his building – Df were under a strict liability not to allow the manner ofuse of their land to adversely affect the building on Pf’s land o Principle based on – ‘use your own property in such a manner as not to injure that of another’ o Liability of the neighbor is a strict liability •

Apart from regulation through the law of torts, owners of land may voluntarily restrict their ownership rights – through (i) easements and (ii) restrictive covenants

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The dominance of high-rise buildings developments in Singapore means that statutory regulation is increasingly prominent o E.g. easements are implied for the passage of water, electricity, gas, chilled air and the like, for shelter and support All land in Singapore is held for the State – and thus one of the most obvious points at which the use of land may be regulated is the grant itself Note that where the grant by the state takes either an estate in perpetuity or a state lease, such grants are subject to the conditions and covenants implied under the State Lands Act, while the grant of a fee simple estate is not so limited

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Irrespective of the estate held, all land may be acquired by the State under the Land Acquisition Act, and any development of land is subject to planning controls under the Planning Act o A public purpose must be present before the powers of compulsory acquisition can be exercised The tension between public interests and private rights are more keenly felt amidst the growing phenomenon of collective sales The justification for this law was simply that land, being a limited commodity, should be used to its maximum extent permitted under the Master Plan Residential Property Act – restrictions on land ownership by foreign persons More pertinent are the restrictions on the rights of owners of flats built by HDB – 84% HDB controls are not purely concerned with limiting access to land as a limited resource, but are also very much a means of State social engineering (e.g. racial quotas)

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Property Law • Laws • •

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The bundle of rights that is called ownership rights contains more or less rights depending on the type of estate in land or the kind of land involved Most of our land law is adopted from English law S3 of the Application of English Law Act in 1993 confirms that, common law (including equity) of England from immediately before the commencement of the act and earlier, shall continue to be part of Singapore’s law o Note also that in ENGLSH LAW: the supreme court of judicature act 1873, s25(11), now incorporated in the Supreme Court Act 1981s49(1): "both legal and equitable rights and remedies are now recognized and enforced in all courts, albeit subject to the overriding principle that in cases of conflict between law and equity, the rules of equity should prevail” S5 repeals all English statutes that were in force in SG, except for those set out in the first schedule of the act. o And there is no pre-1826 English statutes on land law that appear in the first schedule o For anything post-1826, it hasn’t applied since the 2nd charter of justice in 1826. o Any pre-1826 English statutes that are considered to be essential to land law in SG have been localized and modernized as amendments to existing local statutes – these are in the 2nd schedule of AELA. S3 of the civil law act: Law and equity to be administered concurrently o 3. “In every civil cause or matter commenced in the court, law and equity shall be administered by the court in its original jurisdiction and by the Court of Appeal according to the rules following” Para 14, First Schedule – Supreme Court of Judicature Act o “14. Power to grant all reliefs and remedies at law and in equity, including damages in addition to, or in substitution for, an injunction or specific performance.” Hence land law that is applicable in SG: o English common law and equity as adapted and modified by local cases o Local legislation o Can resort to commonwealth cases where local legislation is in pari materia with English statutes

6. FUNDAMENTAL CONCEPTS PURPOSE of land law: * Birks, ‘Before We Begin: Five Keys to Land Law’ in Bright and Dewar (eds), Land Law: Themes & Perspectives (1998), Chap 18 • Facilitate and reconcile conflicting interests • 5 keys of land law o Time: Dealing with slices of time § Limited by the rule against perpetuities, which has the effect of destroying all future interests which does not vest within a certain time, i.e. sterilization of the land’s economic worth § Following the UK Law of Property Act 1925, common law only recognizes fee simple and leaseholds. All other division of time has to be dealt behind a trust, in equity o Space § Physical: 3 dimensional and not restricted to the surface of the land. § Economic potential: One can sell different rights to use the land, e.g. easement and restrictive convenants, without losing the physical space • Re Brocklehurst: Selling a 99 year right to shoot game on the land § Intangible: Includes enjoyment of land, i.e. tort of private nuisance o Reality: Different usage of the word “real” (thing) § Personalty • Less fragmentation possible. • A person who has a right to possession may only sue for conversion when his or her property is misappropriated. • Generally, specific performance is not available for a breach of contract for sale. • Unless the subject matter is unique, the damages is usually monetary. § Realty • High degree of fragmentation. • May be able to eject a stranger by using a writ of possession. • Orthodox position is that specific performance is generally available for a breach of contract for sale o Duality: At common law and in equity § Common law and equity has a different set of rules for each category, with equity being more flexible and consequently less certain o Formality: Many rules apply to property law due to invisibility of real rights, and due to the value § Distinction between a grant of lease vs agreement to grant a lease (contractual) • Distinction especially important for chattels, where the two stages are often merged

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Property Law § One transaction that fails the rules of its type can be recast as another form of transaction and be subjected to another set of rules § 3 reasons for formality • Evidential: s 6(d) of Civil Law Act was derived from the ancient statute of fraud to prevent people from giving false statements, and combat it by requiring written evidence. o s 6(d) of Civil Law Act: Required to be evidenced in writing, signed (not required to be actual signature) by the df or the contract would be valid but unenforceable. • Channeling: Creates a standardized form of transaction for certainty • Cautionary: To make people think twice before finalizing the decision 6.1 ‘Ownership’ and Relativity of Title Relativity of title: Different people may have conflicting claims to the property • Courts only WEIGH THE INTERESTS OF THE PARTIES AT HAND o However, one must look BEYOND the immediate parties and NOT be myopic as it often leads to CONTRADICTING PRINCIPLES • Gray & Gray: “The common law knows no absolute title; all title remains relative and, even in its statutory form, essentially defeasible. … The common law’s crude proprietary technique is restricted to determinations as to which of two claimants of an estate has the better claim” • Cases o * Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437: Even a thief who acquired possession through illegal means would be deemed to have possession and would be protected by the law, unless the authorities have the statutory right to possess the item or the rightful owner initiates a claim. o Armory v Delamirie (1722) 1 Stra 505: Seminal case where the finder of a jewellery was held to have a better right to possession than the employer o Parker v British Airways Board [1982] 1 QB 1004: In general, the owner of the land has a better title to lost property found on the land. However, when the land is publicly accessible, the owners have to positively assert its intention to retain title for lost property if it wished to defeat the claims of the finders. o Ocean Estates Ltd v Pinder [1969] 2 AC 19: Squatter in adverse possession must show an intention to exclude others, including the “true” owner from the land. 6.2 Fragmentation of Property Rights Ownership of land can be split into theoretically infinite lesser interests • Estates: Segments of time, i.e. leases • Security interests o Mortgage: Lender has the title until the borrower fulfills the loan obligations § Lender has the ownership and the borrower holds the lesser interest known as “equity of redemption” o Charge: Ownership still held by the borrower • Easement: Right of a landowner over another’s land, e.g. to walk over the land o However, this right of easement only applies if A holds the neighbouring land and ceases to be a proprietary right once he sells the neighbouring land 6.3 Space and the Third Dimension Rights to land are multi-dimensional and not restricted to the surface of the land • Underground o Edwards v Lee’s Administrator 96 SW 2d 1028 (1936): Edwards developed a tourist attraction (cave) below his land but 1/3 of the cave extended to Lee’s land. The court held that Lee was entitled to 1/3 of the profits arising from the cave, though the entrance to the cave was in E’s land. o Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380: Analogous to Bernstein, the ownership of land does not extend indefinitely into the land. Though, the works involved were not so deep and a trespass had occurred, the measure of damages was not a “fair share of profits” but rather adequate compensation for the act. • Airspace o Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479: Property owner’s right over airspace only extends to a height necessary for the ordinary use and enjoyment of his land (lower stratum) o Kim Beng Lee Pte Ltd v Kosion Enterprise (S) Pte Ltd [1994] 1 SLR 700: MRT viaduct over land would intrude on the ownership of the said land. • Intangible o Includes enjoyment of land, i.e. tort of private nuisance o * Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479: Mere act of looking over a fence into the neighbour’s property does NOT constitute nuisance and trespass is limited to physical interference • Economic potential

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Property Law o One can sell different rights to use the land, e.g. easement and restrictive convenants, without losing the physical space § Re Brocklehurst: Selling a 99 year right to shoot game on the land 6.4 Numerus Clausus Principle There are a fixed and limited number of proprietary rights • The numerus clauses principle is present in both common and civil law systems o Civil law: No real rights can be created other than those provided for in the statutes/codes o Common law: Repeatedly stated by judges in common law systems that this principle holds. In common law, the parties cannot create a property right as they choose. • Fundamental principle: Parties cannot choose to create a property right either through contract or otherwise • 2 ways to look at it o Strict view: There is a closed list of property rights o Wider view: Admission to the list is difficult and not up to the parties’ choice. • * Rudden, ‘Economic Theory v Property Law: The Numerus Clausus Problem’ in Ekelaar and Bell (eds), Oxford Essays in Jurisprudence (Third Series) (1987), 239 o A world in which all resources are exploited in the economically optimal way would be oppressive to individual freedom of landowners since property rights outlive people o It is not economically efficient to have freedom in the creation of property rights since it may result in the diminished value of the land when it is burdened with covenants 6.5 Land, Fixtures and Chattels Things that are ‘part and parcel of the land’: Surface yield to the ground (superficies solo cedit) • Includes naturally occurring things like trees, stones, etc. • Things that are on the surface of the land are part of the land • s 6 CLPA (Cap 61, 1994 Rev Ed) o (1) Conveyance of land include everything on the land o (2) Conveyance of land with buildings include everything of the building • Things that are on the land can have different classifications o Threefold distinction to be drawn between items that were: Elitestone Ltd v Morris [1997] 1 WLR 687 § (a) chattels, § (b) fixtures and § (c) part and parcel of the land. o Items in categories (b) and (c) were part of the land. • However, there may be exceptions o Kiah v Som (1953) 1 MLJ 82: Local Malay custom regarded a certain type of house (removable without demolishment) as separate from the land, a gift of the house and land to different people respectively was valid When are chattels fixtures (quicquid plantatur solo, solo cedit) • Whether the chattels attached to and are part of the land becomes FIXTURES so as to become part of the land • Fixture Tests: Holland v Hodgson o Degree of annexation test: Not helpful and just a starting point and to determine the burden of proof § Prima facie position: Fixture if it is attached and chattel if not o Object of annexation test (Hellawell v Eastwood): The DEFINITIVE test of whether an item is a fixture § Objective test looking at the facts to derive the purpose of the annexation, regardless of subjective intention of the person (differs from contract since the individual’s intentions are totally irrelevant) • Is it meant to improve the land or merely to enhance the enjoyment of the chattel? § However, the test is malleable where there are no precedents and the courts (or students) may shape the decision • CASES where fixture test arise o Tax: Less taxes § Pan-United Marine Ltd v Chief Assessor [2008] 3 SLR(R) 569: Issue was whether the dry docks are a fixture to be included in the valuation of the property • CA majority (Andrew Phang and VK Rajah): They are part of the property. Dissent by Andrew Ang § Chief Assessor & Comptroller of Property Tax v Van Ommeren Terminal (S) Pte Ltd: Storage tanks with 6,000 cubic metres resting on their own weight are considered part of the land. o Succession: Real and personal property have different succession rules o Sale of land: where the contract for sale of land is vague § Holland v Hodgson (1872) LR 7 CP 328: • Facts: Looms were attached to a building (a mill) by nails and bolts by the owner of the land. The owner mortgaged the land to the plaintiffs and also sold his chattels to the defendants • Holding: Though only affixed by bolts and screws, it is to be considered a part of the land, where the object is to enhance the value of the premises.

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Property Law § D’Eyncourt v Gregory (1866) LR 3 Eq 382: Stone statues, seat and garden vases were held to be part of the land, even though they were free standing because formed an integral part of the architectural design of the house on the property § Elitestone Ltd v Morris [1997] 1 WLR 687: • Facts: Pf sought possession of the premises for redevelopment, the df resisted on the grounds of protection under the Rent Act 1977, the pf claimed that the protection did not cover chattels. • Holding: Wooden bungalow resting on blocks considered a fixture, as it could not be removed without being demolished notwithstanding appearance of contract o Tort of conversion: Where you want to get your chattel back § People’s Park Chinatown Development Pte Ltd v Schindler Lifts (S) Pte Ltd [1993] 1 SLR 591: Escalators had become fixtures even though they were simply resting on their own weight. o Insolvency § Gebrueder Buehler v Chi Man Kwong Peter: Buehler supplied engines to Allied Cocoa which was installed in the factor. CA held that the engines were part of the coy’s property instead of Buehler although there was a retention of title clause. • CRITICISMS o Kevin Gray: Tests lack “coherence and certainty” § The distinctions made are illusive. § However, test is now more “case specific and more context dependent” looking at “day to day practice of the marketplace” o Singular test for multiple scenarios § Different types of objective test: • Disembodied objective intention: Looking at the facts to derive the purpose, devoid of the perspective of the person for tax cases • Personified Objective test: Looking at the parties’ objective intention in contract or the deceased in a succession case § Against the potential unfairness of the fixtures rule, it is possible to contract otherwise due to freedom of contract § What works in one situation may not work in another. Having the same rules for different situations may lead to unjust results such as applying a disembodied test in contractual case in People’s Park v Schindler Lift. o Expropriation: Extinguishes the rights of the original owner when the item is fixed to the land. o Some fixed and some are not: Are they treated as a group or individually in the test? § No clear answer, but prof says that it might be better to treat them as a group. Tenant’s Fixtures • Tenant may remove fixtures within a reasonable time. o Riduan Yusof v Khng Thian Huat: Tenant used premises as a kindergarten and renewed the tenancy several times. Held that tenant may remove the fixtures. o BP Refinery Singapore v Amazon Group: BP had affixed plant and equipment for business of oil refining on land leased from the Government of Singapore. After the lease was over, BP sold the equipment to Amazon. Held that BP had a right to remove the equipment as a tenant. 7. PROPERTY “DUTIES” Duties imposed on property owners are justified since property owners enjoy free rein of rights that can affect others • Land often attract exceptional rules which may impose positive duties to act, o Xpress and Goldman v Hargrave POSITIVE ACTION: Right to support neighbouring land • Old view: Dalton v Angus (1881) 6 App Cas 740 o Right of lateral support extends only to land in its natural state and not the additional weight of buildings erected, unless an easement of prescription is acquired after 20 years. o Liable if the land is damaged or if the building is damaged due to land subsidence (consequential loss), but NOT for damage to buildings without damage to land. • NEW view: Xpress Print Pte Ltd v Monocraft Pte Ltd [2000] 3 SLR 545 o Departing from Dalton v Angus, a landowner has a right of support in respect of his buildings by neighbouring lands from the time such buildings are erected. o Justification: § Legal principle encapsulated in the Latin maxim sic utere tuo ut alienum non loedas, (Use your own property in such a manner as not to injure that of another) Importance is compounded due to high intensity land-use pattern because the damage could be astronomical, not to mention injury to human and property.

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Property Law § Unify the regime by doing away with negligence for initial 20 years and easement subsequently, especially since registered land cannot create easement by prescription § Existing issues with negative easement by prescription: Easement only arise AFTER 20 years and neighbour is not liable before that (only way to withdraw support is by digging LOL; not something you want to encourage) o Not creating a new legal right, but rather removing unjustifiable restrictions on a right already firmly established and accepted and has exactly the same characteristics o STRICT LIABILITY in action for private nuisance: Liability is infringed as soon as, but not until, damage is sustained in consequence of the withdrawal of that support. § Justifications: * Tang, ‘The Right of Support of Buildings from Adjoining Land’ (2002) 66 Conv 237 • Builder normally buys insurance when constructing the building, and it covers adjoining buildings. Thus the transfer of risks onto the builders is justified. • Does away with the need for using negligence in the initial 20 years before converting it to an easement by prescription once 20 years is up. o Negligence: Builder may get away if the duty imposed is one of negligence since the liability is not strict • Easement by prescription is artificial and devoid of justification. An easement by prescription presupposes that that the servient owner has the requisite degree of knowledge, the power to stop the user or to sue in respect of them and had acquiesced to the user by abstaining to exercise such power. Negligence for OMISSIONS • Omissions generally do NOT give rise to liability o TORT (Negligence): Stovin v Wise [1996] 1 AC 923, 944 (Lord Hoffmann): § Facts: Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. § Holding: Council is not liable for omission to make the area safe because the rate of accident is low and there is a difficulty in ascertaining which df is responsible when others are equally culpable (Why pick me?) o Contract: Silence does not amount to acceptance o Criminal law o Reasons § Indeterminacy argument: “Why pick on me?” in Stovin v Wise § Efficiency § Political argument: Imposes a duty on people interferes with their rights • HOWEVER, landowner may be liable in NEGLIGENCE for the naturally occurring danger that arose on his land as he was aware of the danger and failed to act with reasonable prudence to remove the hazard o Goldman v Hargrave [1967] 1 AC 645: A tree was struck by lightning and caught fire. The landowner cut the tree into sections but the wood was still smouldering and he failed to douse it with water. Over the next few days the hot weather reignited the fire, which spread to neighbouring property. o Justification § Land owner has a responsibility: Property rights includes responsibilities § Determinate class

8. LIMITATIONS ON PROPERTY RIGHTS AND THEIR ACQUISITION In Singapore, there are many limitations on property rights imposed by laws, soft laws and government policies, to achieve some sort of social engineering: * Tang, ‘The Legal Representation of the Singaporean Home and the Influence of the Common Law’ (2007) 37 HKLJ 81 • A form of State-imposed ideologies grouped in four broad clusters: o (a) the ideology of stake-holding in the country; § Economic asset hedging against inflation, and hence Singaporeans will be more willing to stay and defend Singapore when there is a need. o (b) the ideology of the family; § Requirement of having a family nucleus before applying for a HDB flat pressurises young people to marry early in order to be able to buy a flat § Women’s Charter protect the women’s share in the property, without resorting to constructive trust in equity o (c) the ideology of multi-culturalism; and § Ethnic quota during the allocation of new flats and in the resale market

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Property Law o (d) the ideology of politics. § Politicising HDB through the upgrading programmes in general elections • The idea of the home as an individual’s castle can be seen in the statutes such as criminal and family laws o Aggravated penalties are given when crimes are committed in one’s house o HDB flats cannot be sold when you are bankrupt • Nevertheless, the concept is also diminished by statutes o Private acquisition: Strata title holders may be forced to sell their houses by the majority, i.e. collective sales o Public acquisition: State can compulsorily acquire a person’s land for any residential, commercial or industrial purposes (every jurisdiction has land acquisition, just varies in terms of degree and compensation). Constitutional right of property was intentionally omitted. Land Acquisition Act is now compensable at full market value. However, if the result is that the price of your property will go up, the govt will not compensate you and if it falls, they govt will not pay you what it is worth now. o Criminal provisions: Cannot be seen naked in your house o Zoning restrictions o Restrictions on ethnicity o Price of resale HDB flats have gone up due to demand from PRs 8.1 Conservation ss 9 and 11, Planning Act (Cap 232, 1998 Rev Ed) • s 9: Minister may designate an area as a conservation area • s 11: The authority may issue guidelines for the conservation of these buildings o Very comprehensive and detailed restrictions on use and development of these land 8.2 Public Expropriation (Compulsory Acquisition) No Constitutional Right to Property in Singapore • Expressly EXCLUDED when the Constitution was drafted o Rationale: § Originally, Art 14 provides that (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for the compulsory acquisition or use of property except for a public purpose or a purpose useful or beneficial to the public and except upon just terms.”’ • Report of the Constitutional Commission (1966), paras 41-42 § However, gov was afraid that there would be a flood of litigation and our Courts would have to construe the meaning of “upon just terms”. The gov would have to pay the full market value in all cases of acquisition of land and since SG needs a lot of land for its development, it would put too much strain on the coffers • Then-Minister for Law and National Development • Other countries o Malaysia’s Article 13: No person shall be deprived of property save in accordance with law. No law shall provide for the compulsory acquisition or use of property without adequate compensation. o United States’ "Takings Clause" of the U.S. Constitution states "nor shall private property be taken for public use, without just compensation.“ s 5 of Land Acquisition Act • (1) Whenever any particular land is needed o (a) for any public purpose; o (b) by any person, corporation or statutory board, for any work or an undertaking which, in the opinion of the Minister, is of public benefit or of public utility or in the public interest; or o (c) for any residential, commercial or industrial purposes, the President may, by notification published in the Gazette, declare the land to be required for the purpose specified in the notification. • (3) The notification shall be conclusive evidence that the land is needed for the purpose specified therein as provided in subsection (1). Acquisition of land • All land acquisition in Singapore is coordinated by the Ministry of Law acting through its agent, the SLA, so as to streamline the administration of all matters relating to land acquisition under a single authority o Galstaun v AG: Part of the land acquired was not used for a public road but kept as an open space. Held that it was not ultra vires because “when the Gov declares that a certain purpose is a public purpose, it must be presumed that the Gov is in possession of facts which induce the Gov to declare that the purpose is a public purpose” o Basco Enterprises (Pte) Ltd v Soh Siong Wah: Premises acquired for “urban redevelopment” were subsequently sold to the public as a building to be preserved. CA held that the purpose of “urban redevelopment” included preservation of buildings and hence it was consistent with the acquisition

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Property Law o Teng Fuh Holdings Pte Ltd v Collector of Land Revenue: Land acquired was not utilised by the Gov. Court held that where an originally legitimate purpose of acquisition changed over time into another legitimate purpose, this did not amount to evidence of bad faith. o Kentucky Fried Chicken Management Pte Ltd v AG: Holding a state lease and being a tenant of the State does not stop the Gov from acquiring the land. • Valuation o s 8, Land Acquisition Act: Has to be paid to persons claiming interest in the land acquired § Ex gratia payments may be made to persons not entitled to payments under s 8 but these payments are nonbinding on the Gov and cannot form a cause of action. o Compensation is made by the Collector of Land Revenue and those dissatisfied may appeal to an Appeals Board set up under s 19, whose decision is final except for an appeal to the CA on a point of law. o Before 2007, the compensation is pegged at the market rate at a pre-determined date or the value as at the date of the notification, whichever was the lower o After 2007, the compensation is based on what a bona fide purchaser might reasonably be willing to pay for the land, assessed at the date of its acquisition. • No longer a big issue with the changes in 2007 for compensation at market price 8.3 Private Expropriation (Collective sales) Collective Sales provided by statute • Procedure: Form of statutory sale o Obtain requisite approval § Property > 10 years: 80% of votes § Property < 10 years: 90% of votes o Any objections can be raised to the Board. § Board only considers the financial aspect of the minority’s objections to determine if the minority’s financial interests are prejudiced or if the transaction was made in good faith. o Once there are no issues, the Board would give the order, which will bind all parties, whether they agree or not. • Justifications o Original: Rejuvenation of old estates o Recent: Land optimisation for more houses in same land, increasing plot ratio, to take in population growth • Issues o Going too far with rejuvenation or land optimisation and depriving home owners of land § Although brand new estates can be subjected requirement of 90%, the threshold is not very high, unlike HK. § DIMINISH the idea that the home is the person’s castle and the property rights o Objections disregard emotional attachment to land and only consider purely from financial perspective 8.4 Quasi-Public Space Limitations are placed on owners of PRIVATE land used for a PUBLIC PURPOSE, i.e. quasi-public space: Gray and Gray, ‘Civil Rights, Civil Wrongs and Quasi-Public Space’ (1999) 4 European Human Rights Law Review 46 • UK: Strict and unqualified enforcement of private property rights through the tort of trespass, permitting arbitrary exclusion of others. • US, CA and AU: Courts have recognised a doctrine of reasonable access, under which owners of quasi-public property may exclude members of the public ONLY on grounds which are objectively reasonable • Argument for US, CA, AU’s stand o Increasing privatisation of urban space has vested new and enormous powers of social regulation in the hands of large, publicly unaccountable corporations. o The strict doctrine of trespass law can no longer serve as an instrument for the curtailment of various kinds of civil right, and consign the freedoms of its citizens to the uncontrolled discretion of property developers. o There is a need to monitor the distribution of social and economic power between corporate and non-corporate persons and to invigilate the allocation of police power between non-governmental entities and the state itself. 5.4 Environmental Considerations The government should impose a PUBLIC TRUST to protect the environment: Lye, ‘Land Law and the Environment: Re-examining the Concept of Ownership and Forging New Rights and Obligations in a Changed World’ (2010) 22 SAcLJ 189 • What is a public trust o Private trust: Trustee must act in the exclusive interest of the beneficiary o However, public trust allows the person to be self-interested. • Issues: o Property law normally deal with private law between individuals and not the public law where different rules apply! § Same argument applies to Tang HW’s article on “home as a castle”

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Property Law § Locus standi deals with public law o How and where you draw the line between environmental conservation and land utilisation for growth § Property rights of landowner vs communitarian good § Private landowners? Should they be subjected to the same requirements of a public trust? § Cost and benefits analysis to determine whether it would be serve the greater good o Why are you imposing rights on property owners only and not all people to take care of the environment? o How to impose this liability? Through criminal law or civil law? 8.5 Limitations on Acquisition Mindy Tan, ‘Academic Paper Supports Housing Curbs for PRs, Foreigners’, The Business Times, 8 August 2013 • Suggestions on tamping down demand and property prices o Making it mandatory for foreigners to seek permission to purchase apartments or condominium units, instead of only for landed properties o Removing owner-occupancy property tax concessions for foreigners and implementing progressive property tax structure for multiple unit owners who are PRs and foreigners o Levying additional seller stamp duty on HDB and private transactions involving foreigners, regardless of length of holding time o Real estate to be excluded from future Free Trade Agreements (FTAs) 9. SELECTED CONTROVERSIES 9.1 Intellectual Property * Cornish, Llewelyn and Aplin, Intellectual Property: Patents, Copyright, Trade Mark and Allied Rights 38-44 Arguments against IP rights Property rights • IP rights creates out of nothing an equivalent exclusivity since it lowers the value of information. However, appropriation by A of B’s invention does not preclude B from using it • IP rights are therefore granted to the extent that competition involving the unauthorized use of the rightholder’s work or invention evidently prejudices that person’s exploitation of it Monopolist behaviour • By restricting supply of information, an increase in price can be effected Presumption against monopoly 1. Misallocation of resources since there are consumers who are not willing to pay the monopoly price but rather the competitive price 2. Unjustified redistribution of wealth 3. Asymmetric information regarding goods 4. Monopolists loses incentive to keep costs down Potential arguments 1. Copyrights can be converted a. However, K Low thinks it’s dangerous because the rationales between tangibles and intangibles are very different. Arguably, since most of the rights are given by statutes, the rights are found in the Acts and should not be supplemented (everything should be found in the 4 corners of the statute itself). The courts should not add protection willingly b. K Low thinks that IP rights need more certainty. Furthermore, they are very different from property rights as well. c. In terms of relativity of title, an action only comes about when there is purported transfer. 9.2 Human Body Body parts CAN be property • Caselaw o R v Kelly [1999] QB 621: Parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes. o Yearworth v North Bristol NHS Trust [2009] 3 WLR 118, noted McMeel [2010] LMCLQ 22 § Facts: C, who were all diagnosed with cancer, were advised to freeze some of their sperm. They did this, storing it in the Hospital’s fertility unit, which promised to take all reasonable care to ensure the sperm could still be used in five to ten years time. However, before they could be used, they thawed out and perished. § Holding

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Property Law • Personal injury: Damage to, and consequential loss of, the sperm did not constitute “personal injury” as it would be a fiction to hold that damage to a substance generated by a person's body, inflicted after its removal for storage purposes, constituted a bodily or “personal” injury to him • Property: Storage of the sperm in liquid nitrogen represents an application of skill conferring on the sperm a substantially different attribute. From a broader perspective, the court held that the men had ownership for the purposes of their present claims because it is fortified by the precise correlation between the primary, if circumscribed, rights of the men in relation to the sperm, namely in relation to its future use, and the consequence of the trust’s breach of duty, namely preclusion of its future use o The pfs sued for tort due to the free treatment provided by the NHS • Arguments for recognising property right o Lacuna if you do not recognise a property right, e.g. running off with another person’s chopped arm. No tort if the arm is not a property. o You can still impose restrictions on the property rights, e.g. no sale of guns, trading of organs • Arguments against o Ethical and moral concerns § Which can be taken care of through regulations, e.g. restrictions of trading, exceptions to chattels which allows chattels to be returned § Cheapens the human body o Imposing all these regulations to the body as a chattel makes the whole term “chattel” meaningless o Relativity of title and 3rd parties are affected in property rights!! § If I steal your arm, I gain property rights to it, which are enforceable against other people. • Acceptance depends on what do you do with the body part after… o Hair/blood: Should we treat it as a chattel and allow for trading, which happens! § More comfortable to deal as a tort against property o Limbs: Treating it as a property and allow for tort of conversion would lead to issues with relativity of title § More comfortable to deal as a tort against person § K Low feels it’s better to extend the torts against a person instead of extending torts against property How to transfer real property § Deliver it to the person. If it is not possible to be done personally, it can be passed on to an agent § Alternatively, it can be passed using a deed * Moses, ‘The Applicability of Property Law in new Contexts: From Cells to Cyberspace’ (2008) 340 Sydney L Rev 639 • Human Embryos o Held in United States that embryos are neither persons nor property, but are in an intermediate category that entitles them to special respect because of their potential for human life (not clear if (1) embryos are special property, able to be treated as objects of property rights but subject to constraints necessary to ensure respectful treatment or (2) embryos cannot be objects of property rights) • Excised Human Tissue o UK and Australia § Where human tissue is derived from a corpse, the common law rule is that there is no property in a dead body, at least unless ‘work and skill’ have been applied to the remains § Courts recognize the right of certain persons to custody and possession of a body until burial (however, it seems the holder of this right is not entitled to property-based remedies such as conversion) § There is authority for the view that there is property in at least some types of human tissue stored outside the body o US § Recognizes property in human tissue (Brotherton v Cleveland – corneas from a corpse were held to be property for the purposes of the United States Constitution) § However, Greenberg v Miami Children’s Hospital held that property rights evaporate once tissue is voluntarily given to a third party, thus suggesting that property might be held prior to the gift being made

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9.3 Cyberspace Virtual Property (Land in Second Life) o Uncertainty as to whether virtual land can be property leads to several difficulties: 1. Nature of the object of trade is not clear, it is difficult to determine when such contracts are breached 2. Unclear whether ‘owners’ have an action against hackers or a world’s operators when land is destroyed or ownership is altered

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Property Law 3. ‘Neighbours’ in virtual worlds can have similar disputes to those in the real world K Low thinks that using property rights will not solve the problem since technically cyber trespass should be committed by the cyber characters, not the real world individuals involved. 1. Law of property does not allow for creation of property rights. Why should the virtual world be different? 2. Property right is enforceable against everyone in general. However, we seem uncomfortable with such a notion •

Concept of Property 1. Recognised Category Test Dixon J explained in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor that only rights in previously recognised categories could be property. However, a requirement that property be limited to previously recognised categories does not help to define the scope of those categories 2. The Ainsworth Test Must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. 3. The Commerce Test Halwood Corporation Ltd v Chief Commissioner of Stamp Duties – “The reality is that commerce regards transferable floor space as a proprietary right. The courts should do likewise”. Argument is that if commerce treats valuable and transferable assets as property, so should the courts. 4. The Excludability Test Suggests that something can only be property if it is conceptually, physical or legally possible to prevent others from using that thing. The failure to satisfy such an excludability test is the basis on which things such as air are omitted from property’s domain. 5. Property as Involving Rights in Rem Hohfeld and Honore propose that it is possible to distinguish in rem from in perosnam rights based on the level of generality at which the right operates. 6. A Core Bundle of Rights Suggested that there is a core subset of liberties, rights and powers that are essential to the notion of property.

* Wong, ‘Cyber-trespass and “Unauthorized Access” as Legal Mechanisms of Access Control: Lessons from the US Experience’ (2007) 15 Int J Law Info Tech 90 • Justifications of applying trespass to goods to cyber trespass in US o (a) the commercial risks and realities of Internet-related businesses, and o (b) the lack of an adequate legal remedy for unfair competition in this realm. • Arguments for o Pf may have attempted self-help mechanisms but failed to stop the df’s acts o Protect a legitimate business o Internet is a “property” and a distinct “place”. Hence we should protect it like how we protect property rights. § Arguments against: Land is definable and the boundaries are fixed. There are only that few neighbours affected by your actions. However, in the Internet, there are no boundaries to define your territory. • Arguments against o Unfair to deprive other legitimate businesses of opportunity to compete freely, hence dampening legitimate competition o “Over-propertisation” of the Internet § Need to balance such private rights with the public interest in open access o Some of the information available on the Internet is publicly available. How do you justify “trespass” against such information. § Legal definition of a property as property rights and NOT the laymen idea of property as an object. • Have the conditions been met so as to give rise to property rights? § How do you own a piece of code or information? o Owners can restrict access to their information through contract law, without resorting to property law and tort. • ISSUES o The chattel, and damage, is incidental to the intention behind the act, i.e. the act was not necessarily directed at or against the chattel, which was merely the means to achieve a particular purpose. § It seems odd to include the kind of activity that more resembles some kind of unfair competition (whether or not actionable under this heading) in a tort that emphasizes possession and ownership of a physical thing. o The real damage is not to the chattel or possessory interest of the pf, but the commercial interest § it would seem as though the interests that the courts are protecting are somewhat distant from the relatively narrow basis of the tort, which essentially concerns intentional dispossession or interference with a physical thing such that the owner’s possession or use of the thing is impaired in a way sufficiently significant as to warrant legal protection.

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Property Law o Propertising the server as the chattel gives rise to issues § The actual owner of the information may not own the server and cannot sue the perpetuator (wrong df or pf) o Trespass to goods requires physical interference § Analogous to the case of Victoria Park Racing: There are legal limits to property rights and you cannot exclude other people’s actions as you wish o It would effectively create a new (or at least broader and certainly updated) cause of action for cyber-trespass, which not only liberalizes the traditional requirements, but also positions it as a form of property right that is § (1) aside and different from any known species of intellectual property; § (2) separate from and in addition to contract (which can impose restrictions on access by mutual agreement); § (3) without the conventional limitations developed by these areas of law o Trespass to and other interferences with goods (chattels) concerned physical (tangible) goods and actual physical movement, dispossession or other similar activities relating thereto • Drawing the line between “spamming” and “non-spamming” cases o Spamming cases: Since it is a socially unacceptable behaviour and could lead to network overloads, the courts would not protect these interests o Non-spamming: Trespass to chattels may be useful to restrain further activity that may be considered illegitimate in some ways and can cause obvious harm to the pf’s commercial or other legitimate interest • CRUX: How much does the law want to allow you to protect or control your tangible or intangible items o There are limits to your rights! It has never been that one has untrammelled rights to enjoy what he wants o There must be a line drawn: § In nuisance: the law allow intangible interference but draws a line § In trespass: the law protects your right but requires actual physical interference and possession and damages (for chattels) o You have to take a political decision to propertise the Internet through legislation, just like intellectual property. Judges are not in a position to do it! • If you want to protect, create a new tort! Do not use established labels as it would muddle the original intention and category. 9.4 Contractual Rights Whether contractual rights can be property rights: * Lee, ‘Inducing Breach of Contract, Conversion and Contract as Property’ (2009) OJLS 511 • At its core, property may be understood as a state-endorsed power relation that regulates access to valuable resources. o A resource must minimally be capable of being excluded from the rest of the world. Whether intangibles can be excluded has to be determined by evaluating the relevant practical, legal and moral considerations • The right to property is a right to exclude others from things which is grounded by the interest we have in the use of things'. Contracts, on the other hand, are concerned with forming cooperative relationships through bargains. Unlike property, which relates to ‘things', a contractual right derives its content from its holder's personality. • Basis for tort in protecting contractual rights o Inducing breach of contract: Tort law recognises the promisee's exclusive right to the peremptory status of the promisor's promise: OBG Ltd v Allen [2008] 1 AC 1 (only SOME choses in action can be converted; those reduced to documentary form such as cheques, aka face-value rule) § Rights in IBC • Between contract parties: The subject matter is the contractual right • Between A and the rest of the world: The subject matter is the right to have the ctt enforced o If allowed, conversion of contractual rights: Critical interest is the exclusive control which a contracting party may legitimately expect to exercise over his contractual rights § However, conversion protects the possession of tangible things but you cannot possess an intangible thing Tangibility • Documentary intangibles: Given the force of law to have tangible rights, e.g. the paper of the cheque is worth the amount written on it. o Cheque has an exception to nemo dat rule, the equity darling as it is a negotiable instrument o Negotiability: Allows the item to be legally and freely transferable. o Conversion arises due to the need to allow the person to sue the bona fide purchaser of negotiable instruments • Choses in action, even if represented by writing, no one can interfere with it. Hence, there is no need for conversion. E.g. If I have a right to sue A for $50, B claim to own it or even if B get the money from A, B have not interfered with my control of the chose, since I still owe it and can sue A for the $50. o However, documentary intangibles can be interfered with due to the element of negotiability. Once the negotiable instrument is cashed, A does not owe me any money and hence I can only sue B for conversion. Conversion of Contractual Rights: * Goymour, ‘Conversion of Contractual Rights’ in Bright (ed), Modern Studies in Property Law: Volume 6 (2011), Chap 16

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Property Law •

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Conversion is a tort of strict liability with 3 basic features: 1. The df’s conduct was inconsistent with the rights of the owner 2. The conduct was deliberate, not accidental 3. The conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods In the documents case, there is a possibility of using the law of unjust enrichment to explain it. To prove an unjust enrichment claim, the claimant must prove (1) that the defendant is enriched, (2) that the enrichment was at the claimant’s expense; and (3) that the enrichment was unjust

* Green, ‘Theft and Conversion’ (2012) LQR 564 * Tham, ‘Notice of Assignment and Discharge by Performance’ [2010] LMCLQ 38, 45-55

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