Severance of Joint Tenancy in Singapore: A Proposal for Reform


Added on  2019-09-30

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IntroductionIn the area of estate law, joint tenancy refers to a special type of ownership of a same property bytwo or more individuals. In such a situation they equally share the ownership of the property andhave the equal and undivided right to keep or dispose of the property. The joint tenancy providesa right of survivorship on account of which if in case any of the joint tenants dies, the remainingshare of that tenant is allowed to transfer to the survivors (Marti, 1957).Since a lot of citizens in Singapore co-own their lands or houses, a few of them, however, areaware that there could be more possible ways in which the legal papers of co-ownership can bedrawn up. As a matter of excitement of being co-owners, many of them take things for grantedand end up undermining their ownership status. Like many other things, the status of ownershipgoes to the backburner in their lives (Crown, 1998).When it comes to joint tenancy, the co-owners are wholly entitled to the whole of the property. The statement seems to be not making a complete sense. Nevertheless, it means, forexample, a husband owns 100% and his wife also owns 100% of the property. It also goes on tosuggest that, being the wholly entitled of ownership of the property, the owners also possess theright of survivorship. Also, the situation can get complicated if the co-owners contributeunequally during the purchase of the property or land or house. So, the question that arises at thispoint in time that in the event of dispute over ownership share, should the party that contributedmore, claim more? The following report tries to analyze various aspects of joint tenancy laws and the severance ofjoint tenancy in Singapore. This project draws a comparative analysis between joint tenancy andtenancy in common and lay out their distinction in their application in relation to the Transfer ofProperty Act (UK), 1882, since, Singapore law on severance is similar to that of UK's. We willalso attempt to put across some of the necessary reforms in the joint tenancy laws, on account ofwhich the different parties will stand to be benefitting from them. Prevalence of Tenancy laws and their Implications in SingaporeIn Singapore, there are primarily two forms of co-ownership that is being recognized in law.These are Joint Tenancy and Tenancy in Common. Though they would seem similar in certainrespect, but are inherently different and the nature of ownership and the rights as well assubsequent would significantly differ according to the nature of co-ownership ("One for All andAll for One - Responsibilities of Directors", n.d.).Under the joint tenancy law, two or more owners have rights with regards to the property as ifthey were a single owner. So, if one of the parties having the joint tenancy dies his or her shareautomatically passes on equally to the remaining parties. However, a fundamental principle thatis a key requirement for the joint tenancy is the unity of the ownership. So, with this provision,the following four types of unities will have to be observed:-The first one is unity of time, according to which, the ownership is to be acquired by eachand every tenant at the same time. Secondly, unit of title, on account of which if all theconcerned parties elect to adopt a joint tenancy then all of them will have to be named as
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joint tenants in the same title deed. Thirdly, unity of interest, which simply refers to the factthat all of the tenants own equal shares in the property. For example, if five people are underjoint tenancy, then each of them possess 20% share in the property. Unity of possession, withwhich all the tenants have equal rights to access and possession. Having described the four unities being observed in a joint tenancy, there are equally four waysby which a joint tenancy can be ceased:-In the event of any one of the tenants opts to sell his or her share in the property to any otherparty, then the situation comes under termination by alienation. The second condition ofcease of joint tenancy is when there is a mutual agreement to partition off the joint tenancy.Thirdly, when a court gives an order to sell partition off the joint tenancy. Lastly, with thehelp of a unilateral deed of declaration made by a joint tenant who needed to severe the jointtenancy ("Singapore - Joint Tenancy - An Independent Doctrine Of Ownership Or Merely ATenancy In Common In-Waiting? | Conventus Law", 2016). While most of the co-owners of Singapore prefer joint tenancy, it is not necessarily a betteroption at all. This is because of the fact that the other type of co-ownership, that is, tenancy-in-common lays down the specific terms of co-ownerships that are spelt out prior to the deed issigned.As per the law of tenancy in common, the owners of the property possess it by holding shares.These shares can be of equal or unequal percentage. Meanwhile, every tenant in common can optto sell off or mortgage his or her shares without necessarily having a consultation with the others.In such a scenario, the tenancy is not destroyed, rather the new owner becomes a tenant-in-common. In practice, tenancies are said to have arose when three circumstance are met. The most commonis the one, which is prescribed under the law. A striking example of this tenancy is to consider acondominium where are all of the subsidiary proprietors (SPs) are regarded as tenants-in-common when the common property of a sub-divided building is being talked about. Anotherscenario under which a tenancy-in-common is being created is the situation when partiescontribute money in unequal amounts or shares in order to purchase the property. As a matter offact, if a deed doesn’t specify as to which form of ownership the parties are taking title, then itcan be agreed that it is tenancy-in-common ("Joint ownership in Singapore and unequalcontributions to purchase price | SingaporeLegalAdvice.com", 2012).A tenancy-in-common can be ceased in certain ways. The first one is when the parties choose todo so voluntarily. The second one is when one or more than one tenants move to the court andask to cease the ownership and divide the property. The third situation is when the laws have tostep in, such as the situation when the landlords become bankrupt and the property is foreclosed.Therefore, the advantage of tenants-in-common, as being pointed out earlier, is that the co-owners can specify their own terms prior to their jointly buying of a property.Now, if an individual chooses to go for a tenancy-in-common, he will require to inform hislawyers well in advance so that he could draw up a necessary draft. Even among the married
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couples, tenancy-in-common provides in the event of death for one partner to dispose his or herportion as per his or her will. This is contrary to the joint tenancies where the rule of ownershipssteps in, ensuring that the surviving party automatically inherits the property.For the purpose of Conversion of Manner of Holding, a law came into force in March 1994,according to which, the tenants-in-common having equal shares as well as joint tenants wereallowed to convert their manner of holding into a joint tenancy or tenancy-in-common in equalshares in respective measures by making a declaration in the form laid down under the LandTitles Act (Cap. 157). This declaration by the tenants can be registered at the Singapore LandRegistry.Now, in the situation of disputes, the highest court of Singapore has implemented a stage test. Itwill be only for the Court to determine if the presumption of resulting trust arose. So, the partythat provided more contribution is needed to give evidence in the form of transaction records orCPF payments, proving that the party actually paid more. If the condition is met, the partieswould be presumed to hold the property as per their ration of their contribution. However, thispresumption can be challenged either by contrary evidence or by the presumption ofadvancement.As far as contrary evidences are concerned, they include recorded agreements on the part of theco-owners in terms of their proof of joint tenancy in equal shares despite unequal contributions.The presumption of advancement is given consideration when the parties involved are in afamilial relationship. If the existence of such relations is established, the law presumes that theparties have the intention of holding the property jointly and equally. Such type of relationshipsare primarily seen between husband and wife, or sometimes parent and child. So, a lot woulddepend upon the strength and the nature of the relationship (Tan, 2002).The above situation shows that even if there are two names on a registry, it cannot be construedthat the ownership would be interpreted absolutely inflexibly. But other factors would be takeninto consideration as well. However, it is also important to note that the laws are liable to changeand, therefore, the above arguments does not fully constitute a legal advice and may not alwaysbe relevant to any specific situation.Joint Tenancy Case laws and Litigations in SingaporeIn a case of Neo Boh Tan v Ng Kim Whatt5[2000] SGHC 31 at [11], the court observed thatthe Equity has an inclination towards tenancy-in-common in given circumstances because of theinherent unfairness regarding the right of survivorship, which is obtained in the situation of ajoint tenancy. For an instant, when A and B have made a contribution to the purchase price of theproperty in unequal amounts of shares or they have lent money on mortgage or for thatmatter are business partners but the conveyance does not include any word of severance, then interms of law, there would be joint tenancy. If in case, they are also joint tenants in equity and in the event of death of one of the jointtenants, the surviving tenant will succeed his or her share. Keeping the circumstances in view,
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