Land Law

Citation(2019) 20 SAL Ann Rev 567
Publication year2019
Date01 December 2019
Published date01 December 2019
I. Interests in land

20.1 The High Court decision in Carpe Diem Holdings Pte Ltd v Carpe Diem Playskool Pte Ltd1 was considered in an earlier review.2

II. Co-ownership
A. Determination of relative shares of co-owners

20.2 The High Court decision in Tan Chor Hong v Ng Cheng Hock3 is instructive in determining, inter alia, the relative shares of co-owners in a property. The plaintiff and defendant were registered as tenants-in-common of a five-room flat bought from the Housing and Development Board (“HDB”) under the Joint Singles Scheme. They were not related in any way but became acquainted through a mutual friend. The plaintiff had a 95% share in the flat and the defendant a 5% share.

20.3 Disputes subsequently arose between the parties over the flat. The plaintiff applied to court for the flat to be sold in the open market and for the sale proceeds to be divided between her and the defendant in the ratio of 95:5. The plaintiff also sought to be given sole conduct of the sale. In addition, she sought an order that she be allowed to buy over the defendant's share directly at valuation price in lieu of putting the flat up for sale.

20.4 The defendant did not object to the court ordering a sale of the flat. However, the defendant had argued, inter alia, that as the $190,100 HDB loan was taken out in their joint names, he should be regarded as having contributed half of the HDB loan towards the purchase of the flat. Since his contribution was substantially larger than the 5% share registered in his name, the parties should be presumed to hold their shares in equity in proportion to their respective contributions.

20.5 The High Court did not agree with the defendant's contention. The court referred to the Court of Appeal decision in Lau Siew Kim v Yeo Chye Terence4 where it was held that equity intervenes in a legal joint tenancy in order to “effect justice between the parties” or “ensure fairness between the parties” because the legal presumption of joint tenancy gives rise to the risk that the parties may “hold land as legal joint tenants without fully appreciating or voluntarily intending the consequences of such manner of holding” or “may have been presumed to be joint tenants at law without any informed or voluntary intention on their part to hold the land they co-own in such a manner”.5 However, where co-owners have expressly specified their intention on their manner of holding, “there would be no cause for equity not to follow the law”.6

20.6 In the instant case, since the parties had expressly agreed to hold as tenants in common and expressly agreed on their relative shares, there was no room for equity to intervene with an equitable presumption that parties held as beneficial tenants in common in proportion to their contributions to the acquisition of the property. The defendant was, therefore, bound by the contractual documents he signed and therefore acquired only a 5% share in the flat.

20.7 The defendant had also argued that, applying the principle in the Court of Appeal decision of Su Emmanuel v Emmanuel Priya Ethel Anne7 (“Su Emmanuel”), the court ought to disregard the fact that the loan repayments were all made by the plaintiff, as those payments were not referable to any agreement made at the time of acquisition of the flat concerning how the loan was to be serviced. The High Court correctly held that the principle set out in Su Emmanuel was in essence a method for ascertaining the parties' respective contributions in the event that the court had decided that parties in a legal joint tenancy were presumed to hold as beneficial tenants in common. This principle had no application in the present case given that the parties held as tenants in common in the shares specified in the contractual documents, as opposed to in shares in proportion to their respective contributions.8 In any event, a proper application of the principle in Su Emmanuel would have led the court to attribute all the loan repayments to the plaintiff instead of apportioning the loan repayments equally between the parties. This was because the High Court had found that it was the parties' understanding, at the time

the flat was purchased, that the plaintiff would be solely responsible for repayment of the HDB mortgage loan.9

20.8 It was clear that the relationship between parties in the instant case had deteriorated to such an extent that it would be necessary and expedient for a sale to be ordered in lieu of partition. Accordingly, the court held that it was a suitable case for making an order of sale of the flat in lieu of partition pursuant to para 2 of the First Schedule to the Supreme Court of Judicature Act.10 Given the state of the parties' relationship, the court was also of the view that it was unrealistic to expect the parties to cooperate in the sale. Further, having regard to the fact that the plaintiff would be entitled to 95% of the sale proceeds while the defendant would only be entitled to 5%, the court considered it fair and equitable for the plaintiff to have sole conduct of the sale.

20.9 However, the court declined to make an order giving the plaintiff the right to purchase the defendant's share. Having regard to the wording in para 2 of the First Schedule to the Supreme Court of Judicature Act, it empowered the court to “order the land or any part of it to be sold”. It did not empower the court to allow one co-owner to compulsorily purchase the other co-owner's share. Notwithstanding this ruling, the parties were free to negotiate with each other to buy over the other's share at a mutually agreed price.11

B. Severance of joint tenancy

20.10 The law laid down by the Court of Appeal in Sivakolunthu Kumarasamy v Shanmugam Nagaiah,12 that the grant of a court order which has been made absolute effects severance of a joint tenancy, was applied in Tao Li v Toh Ah Poh.13 In the instant case, Tan and the defendant, who were husband and wife respectively, were joint tenants of a flat. Subsequently, the parties divorced when the court order dissolving the marriage was made absolute.

20.11 The parties had consented to the joint tenancy being severed so that upon the payment of $60,000 by Tan to the defendant, the latter would transfer her interest in the flat to the former. After the decree was made absolute, Tan married the plaintiff and they lived in the flat together, but the $60,000 had not been paid to the defendant.

20.12 On Tan's death, the issue arose whether the joint tenancy in the flat had been severed. If it had not, then upon Tan's death, the whole of the interest in the flat would devolve to the defendant by way of the right of survivorship, which is the hallmark of a joint tenancy. The plaintiff had argued that the joint tenancy had been severed.

20.13 The High Court correctly applied the law in Sivakolunthu Kumarasamy14 and held that when the judgment was made absolute, and the joint tenancy severed, the flat could no longer be held by the parties concerned as joint tenants.15 It is trite that the act of severance, whether by consensual agreement or judicial pronouncement, is permanent. The High Court was of the view that if the obligations that accompany or follow the severance remain unfulfilled, the parties must enforce them as the law may permit.

20.14 In the instant case, the estate of Tan could be compelled to pay up the $60,000 as required. Until then, the property remained in the joint names of Tan and the defendant as tenants-in-common.16 Judgment was, accordingly, entered for the plaintiff.

C. Attachment of joint tenant's interest under writ of seizure and sale

20.15 The High Court case of Ong Boon Hwee v Cheah Ng Soo17 represents the latest in a string of cases which dealt with the issue whether a writ of seizure and sale can be attached to a joint tenant's interest in land. The High Court in Malayan Banking Bhd v Focal Finance Ltd18 (“Malayan Banking”) and Chan Lung Kien v Chan Shwe Ching19 (“Chan Lung Kien”) answered in the negative, while in Chan Shwe Ching v Leong Lai Yee20 and Peter Low LLC v Higgins, Danial Patrick21 (“Peter Low LLC”), the High Court decided to the contrary. The Court of Appeal in Chan Lung Kien v Chan Shwe Ching22 did not deal with this issue.

20.16 In the present case, the judgment creditors sought to enforce against the judgment debtor a consent judgment whereby the latter was to pay them a certain sum with interest thereon. They obtained an order

to attach the judgment debtor's interest in a property by way of a writ of seizure and sale (“WSS”) in satisfaction of the judgment. The judgment debtor and her husband, the appellant, were joint tenants of the property. The appellant, who was not a judgment debtor, applied to set aside the order. The assistant registrar dismissed the appellant's application.

20.17 In dismissing the appellant's appeal, the High Court agreed with the finding in Peter Low LLC that prior to the decision in Malayan Banking, all relevant authorities appeared to support the view that, under Singapore law, the interest of a joint tenant in land was liable to be attached in execution.23 In fact, s 135(1) of the Land Titles Act24 (“LTA”) provides that: “The interest in registered land which may be sold in execution under a writ shall be the interest which belongs to the judgment debtor at the date of the registration of the writ.” As was clear from Baalman's Commentary,25 it was the drafter's intention that this “interest” included a joint tenant's interest in land.26

20.18 Further, the court was of the view that, as a joint tenant had a real ownership interest which was capable of immediate alienation, it was not a requirement that the WSS simultaneously severed a joint tenancy before it was capable of being attached to a joint tenant's interest in land.27 In other words, the WSS was capable of being attached to a joint tenant's interest in land independent of severance,28 a view consistent with the broad...

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