Land Law

Date01 December 2017
AuthorTEO Keang Sood LLM (Harvard), LLM (Malaya); Advocate and Solicitor (Singapore and Malaya); Professor, Faculty of Law, National University of Singapore.
Published date01 December 2017
Citation(2017) 18 SAL Ann Rev 589
Publication year2017
Co-ownership
Whether joint tenant's interest can be taken in execution under writ of seizure and sale

20.1 In Chan Lung Kien v Chan Shwe Ching1 (“Chan Lung Kien”), the plaintiff had registered a writ of seizure and sale (“WSS”) against the land in question which the judgment debtor held as a joint tenant together with her husband, the other joint tenant. The question was whether the judgment entered against the debtor for the payment of money could be enforced in this manner.

20.2 In deciding against the plaintiff, the High Court rejected the proposition laid down in the earlier High Court case of Chan Shwe Ching v Leong Lai Yee2 that although a joint tenant does not have an undivided share, his interest can be seized under a WSS because it will be converted into an undivided share when the joint tenancy is subsequently severed. The High Court in Chan Lung Kien, following the decision in Malayan Banking Bhd v Focal Finance Ltd,3 reasoned as follows:

(a) First, pursuant to the proposition, what is seized by the WSS is the interest of a tenant in common, not that of a joint tenant. Thus, the proposition implicitly acknowledges that, given that each joint tenant's interest in the property is not distinct and identifiable, there is nothing for the WSS to bite onto when the court makes an order for a WSS to be issued.4

(b) Second, the court must be satisfied that the interest that is sought to be seized under the WSS is capable of being so seized. Thus, following from the first reasoning, “it cannot be an answer to say that upon a subsequent severance, the joint tenant's interest will be converted into that of a tenant in

common which can be seized under a WSS” [emphasis in original].5

(c) Third, the proposition is premised on the ability to sell the property following a seizure of the debtor's interest, which is different from seizure of a joint tenant's interest under a WSS. In any event, the sheriff cannot sell the property without the agreement of all the joint tenants.6 It is respectfully submitted that the decision in Chan Lung Kien must be correct given that no one joint tenant holds any specific or distinct share of the property. The interest of each joint tenant is identical and all the joint tenants together own the whole property.

20.3 The High Court in Chan Lung Kien also noted correctly that the joint tenancy had not been severed when the plaintiff obtained his WSS. The service of the instrument of declaration by the judgment debtor's husband did not sever the joint tenancy. As registration of the instrument had yet to be completed under s 53(6) of the Land Titles Act7 (“LTA”), there was no severance which affected third parties like the plaintiff. This is reinforced by s 53(8) of the LTA, which removed the basis of the decision in Diaz Priscillia v Diaz Angela,8 such that the doctrine of severance acting only inter partes is no longer part of Singapore law.9

20.4 It was also made clear in Chan Lung Kien that service of a unilateral declaration of intention to sever does not effect severance. The High Court referred to the Court of Appeal decision in Sivakolunthu Kumarasamy v Shanmugam Nagaiah10 which clearly settled the law in Singapore in this respect.11

20.5 The decision of the High Court in Chan Lung Kien that a joint tenant's interest in immovable property cannot be taken in execution under a WSS has been followed in the later High Court case of Peter Low LLC v Higgins, Danial Patrick.12

Contracts which must be evidenced in writing

20.6 In Cheong Kok Leong v Cheong Woon Weng,13 the High Court14 had earlier held that the oral agreement entered into between the appellant and the respondent provided for the latter to be the legal owner of the property but for him to hold it on trust for both parties as tenants in common with an equal share. On appeal, the appellant submitted that the oral agreement pursuant to which the respondent had an interest in the property was inadmissible under, inter alia, s 6(d) of the Civil Law Act15 (“CLA”).

20.7 In dismissing the appeal, the Court of Appeal perceptively observed that what was regulated by s 6(d) was a “contract for the sale or other disposition of immovable property, or any interest in such property” [emphasis in original].16 Given that the oral agreement appeared to have been concluded even before the appellant purchased the property, there might have been a possible issue as to whether or not s 6(d) was applicable in the first place. However, assuming that the oral agreement was such a contract within the provision, it only required that such a contract be evidenced in writing, while the contract itself need not be in writing. A related written agreement titled, “Collateral Agreement”, which was signed by the appellant and which specified the identity of the parties, the share of the respondent in the property, and the consideration paid by the respondent for such a share, constituted a sufficient memorandum of the oral agreement for the purposes of s 6(d).17

20.8 In any event, the doctrine of part performance, which was not abolished by s 6(d) as decided in Joseph Mathew v Singh Chiranjeev,18 applied in equity in favour of the respondent. As there was part performance of the oral agreement by the respondent who had advanced $200,000 to the appellant, he could therefore enforce it.19

Leases
Oral agreement for lease

20.9 In Mumtaz Enterprise Pte Ltd v Kaki Bukit Developments Pte Ltd,20 a dispute arose between the parties as to whether there was an alleged oral agreement for a purported ten-year lease of the premises concerned. The defendant landlord had built a dormitory for foreign workers and had invited tenders for the lease of its premises at the dormitory. The plaintiff tenant's tender to lease the premises was successful. A two-year tenancy was entered into between the parties under which the plaintiff was required to give a written request of their intention to renew the tenancy at least two months before it expired. This, the plaintiff failed to do. The defendant later extended the lease for three months with an option to extend for a further three months under the second written agreement. The defendant subsequently invited a fresh tender in which the plaintiff was unsuccessful. In the present suit, brought against the defendant for breach of an oral agreement, the plaintiff claimed that the defendant orally agreed to lease premises on the dormitory to the plaintiff for ten years.

20.10 In dismissing the plaintiff's claim, the High Court held that the terms of the written lease entered into between the parties contradicted any oral agreement that might have been made. There was no evidence that the parties relied on verbal agreements in their correspondence or negotiations.21 In addition, the plaintiff's conduct did not support a finding of an oral agreement. There was no reason for the plaintiff to have participated in the second tender if there was indeed an oral agreement between the parties. The court was of the view that the two written tenancy agreements were conclusive of the terms of the lease, which made it clear that the lease was for an initial term of two years and was later extended for a three-month period, with an option to extend for a further three months under the second written agreement. Accordingly, pursuant to s 94 of the Evidence Act,22 the oral agreement, if any, between the parties could not be admitted to contradict the terms of the said written tenancy agreements.23

20.11 Even if an oral agreement is established between the parties, it is submitted that that is not the end of the matter as there is still the issue

of enforceability of the agreement to consider. Given that the agreement is an oral one, the formalities at law stipulated in s 6(d) of the CLA would not be satisfied. The alternative position in equity would have to be considered, namely, whether there was sufficient act of part performance on the part of the plaintiff, the party who is seeking to enforce the oral agreement.
Covenants

20.12 In iHub Solutions Pte Ltd v Freight Links Express Logisticentre Pte Ltd,24 a service agreement was entered into between the defendant and the plaintiff whereby the defendant agreed to let the plaintiff use certain warehouse spaces on the second and third floors of the premises for a period of three years. The service agreement was subsequently extended on a number of occasions. The last extension included an option to the plaintiff to extend or renew the agreement for yet another three years. The plaintiff brought a claim for damages in respect of alternative premises which the plaintiff alleged it had to acquire in view of the defendant's failure to expeditiously confirm the renewal of the existing agreement between the parties of the current premises and the defendant's acts of hindrances. The plaintiff argued that the defendant was in breach of the implied terms of expeditious renewal and quiet enjoyment.

20.13 The High Court found that the defendant had accepted at the trial that was an implied term for it to revert reasonably expeditiously to confirm the renewal, unless there was valid reason not to do so. There was also no dispute that there was an implied term of quiet enjoyment for the plaintiff under the service agreement.25

20.14 The court was of the view that the question of reasonably expeditious renewal should not be considered solely in the context of when the defendant reverted but all the circumstances of the case, for example, did the defendant take steps towards confirming the renewal in the meantime. The alleged acts of hindrances also shed light as to whether the defendant was taking steps to confirm the renewal or the opposite. Some of the pleaded acts of hindrances were in respect of restriction of car parking spaces for the plaintiff, improper parking of container by the defendant which obstructed the plaintiff's access to the spaces, preventing the...

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