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Trespassing problems
07/02/2006 The Star By BHAG SINGH
When purchasing a property, many considerations like its location, financial
implications and obligations are involved. The legal aspect covers all these
matters and others.
A property buyer is usually represented by a solicitor. As such, it may be
thought that everything will turn out well. However, this is not always the
case.
Sometimes the transaction can take an unexpected turn. The question of who
should be blamed and who should be made responsible for the losses that
occur as a result of what was not anticipated, will arise.
Is it the buyer or seller who has been careless? Or has the solicitor been
negligent in not carrying out the transaction properly?
The answers depend very much on the circumstances of the problem and what
has actually occurred. Sometimes when a dispute arises, it is not between
the parties to the sale and purchase agreement but between one involved
party and another who is not a party to the agreement at all.
A person could be living on the land that he occupies with his neighbour for
years or decades. Suddenly, someone buys the adjoining land. The previous
owner has either died or shifted. The new buyer now says that the neighbour
is encroaching on his land.
This may include a fence or a structure which was constructed some time ago
and is considered by the neighbour to be on his own land and not encroaching
on the land of the new owner. He may now be asked to remove the fence or
structure.
This is what happened in the case of Cheah Kim Tong vs Taro Kaur. The
defendant found herself being asked to remove the encroaching portion of her
house on the adjoining land which was purchased by the plaintiff in 1980.
The defendant had occupied the land with the alleged encroachment since
1956. According to her, there had never been a complaint from the previous
owner of the adjoining land.
The fact that there was an encroachment was not a matter that was disputed.
From the defendant’s point of view, the plaintiff should have made a search
at the Registry of Titles before buying the property.
In a situation like this, there are a number of questions that arise. Can
the purchaser seek the demolition of the structures? Can the purchaser sue
the seller for not having disclosed to him the encroachment? Is the
encroachment to be considered an encumbrance? Or could he take action
against his own lawyer for not having safeguarded him?
However, the basic principles of our land law do not give any right to
encroachment by any party. This is because the person who is the registered
owner of the land has near absolute rights to it.
Any encroachment would be a trespass against the true owner of the land. The
owner would have every right to require the trespasser to cease the
trespass. The only defence available to the trespasser would be that there
has been acquiescence or laches or both on the part of the person
complaining.
Where the question of knowledge and consent arises, did the new owner know
of the encroachment before he bought the land and then knowingly buy it? Or
did he only become aware of the encroachment after he bought the land? And
with regard to the vendor, was there consent and acquiescence by him which
allowed the trespass or mere tolerance of the wrongdoing?
Mere inaction of the party whose land has been trespassed or a delay in
taking action would not amount to acquiescence and laches. There must be a
positive recognition or acknowledgement of the trespasser's action. The
burden of proof is on the trespasser.
Can the new owner seek relief against the vendor for not having disclosed
the encroachment? Such an expectation would be premised on the presumption
that the vendor was aware of it. And it is possible that the vendor may not
have been aware of it. Even then, an obligation in this regard would need to
be set out in the agreement.
Unless there has been specific prohibition incorporated to give the
purchaser relief against the vendor from the existence of such trespass,
there may be no such right that the purchaser may have.
Most sale and purchase agreements provide a clause that the vendor covenants
that there shall be no encumbrance on the land. But would encroachment
amount to an encumbrance? If this was so, the purchaser could seek relief
against the vendor if he has no other alternative.
The provision whereby the vendor has convenanted that there is no
encumbrance on the property will not help the purchaser. This is because the
word “encumbrance” has been construed not to include such intrusions.
Encumbrance in law would cover situations where a caveat has been registered
by the person claiming an interest in the land.
It must also be noted that such an intrusion will not usually been reflected
in the records in the Land Office or the office where the registered title
is kept. Thus, the fact that no search was made at the land registry will
not assist in using this as grounds for argument.
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