Zhuang WenXiong AR:
Is the interest of a tenant-in-common in realty exigible to a writ of seizure and sale? There is a surprising lack of authority on this point.
The plaintiff (hereinafter “the judgment creditor”) and the first defendant (hereinafter “the judgment debtor”) entered into a consent judgment on 18 November 2015 for the sum of $300,000, but this remains unpaid to date. The judgment creditor applied, on an ex parte basis, for a writ of seizure and sale to be issued vis-à-vis the judgment debtor’s interest in a condominium located at 79 Jurong West Central 3 (“the property”). The judgment debtor and the second defendant hold the property as tenants-in-common in equal shares.
I requested further research into this point. Counsel for the judgment creditor submitted that Malayan Banking Bhd v Focal Finance Ltd [1998] 3 SLR(R) 1008 (“Malayan Banking”) is distinguishable; while Chan Shwe Ching v Leong Lai Yee [2015] 5 SLR 295 (“Chan Shwe Ching”) implicitly held that the interest of a tenant-in-common is exigible to a writ of seizure and sale.
In Malayan Banking, two writs of seizure and sale were registered against property held in a joint tenancy. The High Court held that a writ of seizure and sale against immovable property could not be used to enforce a judgment against a debtor who is one of two or more joint tenants of that immovable property. In Chan Shwe Ching, the plaintiff-judgment creditor applied for a writ of seizure of sale in respect of property held by the defendant-judgment debtor in a joint tenancy. The High Court declined to follow Malayan Banking, and held that property held under a joint tenancy can be seized.
I agree that the ratio decidendi of Malayan Banking does not extend to tenancies in common. The decision rests on the following propositions: The “interest of the judgment debtor” attachable under a writ of seizure and sale must be distinct and identifiable (at [15]); A joint tenant has no distinct and identifiable interest in land for as long as the joint tenancy subsists (ibid); To seize one joint tenant’s interest is to seize also the interest of his co-owner when they are not subject to the judgment which is being enforced (ibid); A writ of seizure and sale cannot therefore attach the interest of a joint tenant unless it concomitantly severs the joint tenancy (ibid); A writ of seizure and sale, when registered, does not sever a joint tenancy (at [18]) because a writ of seizure and sale does not necessarily lead to a sale (at [17]).
I assume arguendo the validity of the proposition (at [5(b)] supra) that a joint tenant has no distinct and identifiable interest in land for as long as the joint tenancy exists. It is trite that a tenant-in-common owns a distinct and identifiable interest in land (Goh Teh Lee v Lim Li Pheng Maria and others [2010] 3 SLR 364 (“Goh Teh Lee”) at [13]): each tenant-in-common has a separate title and holds a fixed beneficial interest immune from the right of survivorship (Lau Siew Kim v Yeo Guan Chye Terence and another [2008] 2 SLR(R) 108 at [84] and [85]). Indeed it would not be possible for the interest of a tenant-in-common to be the subject of a testamentary disposition if it were not distinct and identifiable.
Furthermore Malayan Banking took severance of a joint tenancy to be an essential prerequisite for a writ of seizure and sale to be exigible. At risk of stating the obvious, a joint tenancy is converted into a tenancy in common upon severance. It was thereby implicitly assumed that the interest of a tenant-in-common is exigible to a writ of seizure of and sale.
Chan Shwe Ching is similar in this respect. The court, in the context of comparing the prejudice suffered by joint tenants and tenants-in-common when property is sold pursuant to a writ of seizure and sale, mentioned that the prejudice suffered by joint tenants would be “very similar in cases involving the [writ of seizure and sale] of an immovable property held as tenants-in-common” (at [22]). This presupposes that the interest of a tenant-in-common is exigible to a writ of seizure and sale.
I leave the preceding aside for the ensuing paragraphs. If the interest of a joint tenant is exigible to a writ of seizure of sale, it follows a fortiori that the interest of a tenant-in-common would also be so exigible. This is because a joint tenancy must, by definition, fulfil the four unities of interest, title, time and possession (Goh Teh Lee v Lim Li Pheng Maria and others [2010] 3 SLR 364 at [17]) whereas a tenancy in common only requires unity of possession (Jack Chia-MPH Ltd v Malayan Credit Ltd [1983-1984] SLR(R) 420 at [11]). Therefore...
