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Out of bounds
11/10/2005 The Star Articles of Law with Bhag Singh
THE purchase of a house is a heavy responsibility and an important milestone
in anyone’s life. This is because not only does the person end up using a
good part of his monthly income towards repayment of the loan but he also
continues to do so in most cases throughout a good part of his life.
One would think that a Sale and Purchase Agreement (SPA) prepared by lawyers
and the transfer of title would completely safeguard the buyer. It usually
does but much also depends on the circumstances as well as the contents of
the SPA.
A reader whom we shall call Housebuyer bought a property from its previous
owner. After completion of the transaction, Housebuyer received a notice
from the owner of the neighbouring land asking him to remove the fence and a
structure which Housebuyer thinks is on his land but the neighbour thinks
otherwise.
Housebuyer is puzzled by this development. This is because when he bought
this property, the fence and structure were already there. Housebuyer cannot
understand why the neighbour is now raising this issue.
The situation can be better understood if it is realised that a person’s
entitlement to land is based on what is stated in the land title.
What would rightfully belong to Housebuyer is whatever that is built up
within the boundary of his land. If what has been built is beyond the
boundaries of the land, then clearly there is an encroachment.
In this case Housebuyer was probably not aware that the fence and structure
were outside his property when he made his purchase. At the same time it is
also possible that the neighbour may have bought his property without
realising that the structure was actually on his own land.
In the context of a legal approach to the situation, the first step is to
determine the ownership of the land on the basis of its boundaries.
If there is encroachment by one party against another, the party whose
rights have been infringed is normally entitled to a remedy.
This principle is well established in law; as said by Lord Evershed MR in
Armstrong vs Shepherd and Short Ltd: “It is true to say that if a man having
a proprietary right proves an infringement of that right, prima facie he is
entitled to an injunction, but that needs some qualification. It is not a
matter of unqualified right, and one ground for denying an injunction would
be that the wrong done is, in the circumstances, trivial.”
A person whose land has been encroached upon may be prevented from asserting
his right if there has been acquiescence to the state of affairs on his
part. This is stated in Halsburys Law of England under the subject “Elements
in Estoppel”: “When A stands by while his right is being infringed by B the
following circumstances must as a general rule be present in order that the
estoppel may be raised against A: (1) A must be mistaken as to his own legal
rights; if he is aware that he is infringing the rights of another, he takes
the risk of those rights being asserted; (2) B must expend money, or do some
act, on the faith of his mistaken belief; otherwise, he does not suffer by
A’s subsequent assertion of his rights; (3) acquiescence is founded on
conduct with a knowledge of one’s legal rights, and hence A must know of his
own rights; (4) A must know of B’s mistaken belief; with that knowledge it
is inequitable for him to keep silent and allow B to proceed on his mistake;
(5) A must encourage B in his expenditure of money or other act, either
directly or by abstaining from asserting his legal right.”
Thus it will be seen that strict conditions must be complied with in order
to be able to deny the neighbour whose land has been encroached from the
right to object.
In a situation where both the Housebuyer and the neighbour are innocent
through lack of prior knowledge, it will be seen that apart from the first
element there would not be satisfaction of most of the other elements in the
principles referred to above. As such there would be little or no basis to
stop the neighbour from asserting his rights.
Therefore it would appear that Housebuyer would not have any right to have
the structures remain where they are, on the basis that he believed that
part of the land was his but now turns out to belong to his neighbour.
What would be the best thing to do? One would be to maintain the status quo
by working out an arrangement to compensate the neighbour. The other would
be to rectify the situation by removing the structure which is encroaching
onto the neighbour’s land
If there has been an element of misrepresentation or fraud by the party who
sold the property to the Housebuyer, it may be worth exploring the
possibility of seeking an indemnity for the loss that will be, or has been,
suffered.
One lesson that can be learned is that in such situation in may be worth
engaging the services of a surveyor to determine the boundaries to ensure
that what is seen by the eye is in tandem with official records of the
boundaries. |
