Land Law

AuthorTEO Keang Sood LLM (Harvard), LLM (Malaya); Advocate and Solicitor (Singapore and Malaya); Professor, Faculty of Law, National University of Singapore.
Publication year2021
Date01 December 2021
I. Co-ownership
A. Trespass by ouster

21.1 The issue of what conduct amounted to an ouster by a tenant in common was considered in Goh Rosaline v Goh Nellie.1 Low, on her death, had by a will left the family home (“the property”) in equal shares to all ten of her children plus one of her grandchildren. The plaintiff, the youngest daughter of Low, in her case against her older brother (“the second defendant”) for trespass by ouster, had relied on the will and not directly on her rights as a registered tenant in common as she had refused to have her interest transferred from the estate into her name.

21.2 The High Court, in dealing with the preliminary issue of the plaintiff's standing to sue the second defendant, observed that she only held the beneficial interest to one-eleventh of the property as she had refused to accept transfer of legal title to her tenancy in common from the first defendant as the administrator of the estate. Nevertheless, the question of standing was effectively dealt with by the plaintiff joining the first defendant as a defendant so as to ensure that all necessary parties were before the court.

21.3 In the present case, the plaintiff relied on constructive ouster against the second defendant. It is trite that there is ouster for any tenant in common to take possession of the property exclusively, preventing the rest from deriving benefit from it, including by their co-occupation. On constructive ouster, the court succinctly explained as follows:2

In my view, constructive ouster will include wholly unreasonable conduct of one tenant in occupation that effectively prevents another tenant from also residing there. In the case of residential premises, and especially where the tenants in common are family members, the court must have regard to the subjective feelings of the occupants, including likes and dislikes. The court must

consider objectively whether, having regard to the subjective characteristics of the occupants themselves, the impugned conduct amounts to an ouster.

21.4 The court further opined that it is not a question of who had acted more reasonably. The law does not set out rules concerning who in any household must give way to the other or who must be more reasonable. This applies as much to choice of pets as to anything else. It is important to assess whether any concern, interest or preference relied upon by either party is genuinely held.3

21.5 The second defendant's objections had always centred on the plaintiff's dogs, and he had never denied the plaintiff's personal right of residence in the property. He had expressed concerns about specifics, such as the plaintiff bringing the dogs into the shared living areas within the house, their excessive salivation and her delay in cleaning it up. He was also concerned that the dogs were allowed to defecate in the compound and that the plaintiff would not clear it up immediately, attracting flies. The court found that these concerns were genuine and that the plaintiff did not do very much to address the second defendant's concerns.

21.6 For the past 14 years, the plaintiff had exclusive use of one room on the second floor of the property which she had kept locked and gone to whenever she wanted without hindrance from the second defendant. In keeping the room as she did, the plaintiff was affirming that she was indeed in residence. In the result, her claim for trespass by ouster failed.

21.7 The court was also of the view that the plaintiff was not entitled to recover the rent she incurred elsewhere in order to accommodate her dogs if they could not stay with her at the property. The plaintiff could have stayed in her room at the property while her dogs stayed at her apartment next door where there was a side gate between the two compounds that she used.4

B. Determination of shares of co-owners

21.8 It is trite that the determination of the share of a co-owner in the property is based on his or her actual contribution towards the purchase price. This is illustrated in Somwonkwan Sharinrat v Wong Hong Sang Maurice5 where the first and second defendants were registered as joint tenants of a Housing and Development Board (“HDB”) flat (“the property”). The first defendant's name was included as a joint tenant

of the property by way of a gift from his parents that is, his mother and the second defendant. Following the demise of the first defendant's mother in 2016, her interest in the property devolved to the defendants under the right of survivorship.

21.9 The plaintiff and the first defendant had lived in the property since their marriage in 2013. The plaintiff had since obtained a decree nisi against the first defendant in divorce proceedings she instituted against the latter. In the present application to the High Court, the plaintiff claimed for a division of the first defendant's 50% share in the property which was worth $540,000.

21.10 The plaintiff had argued, inter alia, that the second defendant was employed by the first defendant as a driver at the latter's company after the second defendant was retrenched from his last job. The plaintiff had reason to believe that the Central Provident Fund (“CPF”) contributions utilised in servicing the monthly mortgage instalments were paid by the first defendant. Consequently, the plaintiff was of the view that the first defendant had an equal share in the property as the second defendant and she wanted the court to grant the declaratory relief she claimed in her application.

21.11 The defendants objected to the application and contended that there was no justification or basis for the declaration of 50% ownership sought by the plaintiff. The plaintiff was not seeking a determination by the court as to the percentage share owned by the first defendant in the property. What she was asking the court to do instead was to impute an equal share or 50% to the first defendant, of which she wanted a share in the division of the couple's matrimonial assets. The defendants pointed out that the plaintiff had provided no evidence or justification in support of her claim.

21.12 The plaintiff's contention that the first defendant had a 50% interest in the property was unsustainable. The first defendant's down payment of $22,674.28 towards the property and his contributions of $1,942.28 to the second defendant's CPF ordinary account added up to $24,616.56. The first defendant's share, based on his contributions, accordingly, represented only 4.26% of the property.

21.13 The court pointed out that the plaintiff herself admitted that the first defendant only contributed $22,674.28 towards the purchase price of the property and he became a joint owner because the second defendant and the first defendant's mother had difficulties in servicing the HDB mortgage loan. Chan Yuen Lan v See Fong Mun6 (“Chan Yuen Lan”) and Damodaran v Rogini7 are authorities which pointed to the first defendant's share in the property being based on his actual contribution towards the purchase price. As the plaintiff did not produce any evidence to refute that principle, her application was dismissed by the court.

C. Severance of joint tenancy

21.14 In Kwek Pit Seng Jeffrey v Koek Ah Hong,8 the plaintiff and defendant were initially registered as joint tenants of the property in question. The defendant was the eldest child while the plaintiff was her youngest sibling. The defendant subsequently severed the joint tenancy of the property to a tenancy in common under the Land Titles Act9 (“LTA”) and the instrument of declaration prescribed thereunder was registered.10 The plaintiff contended that the act of severance was in breach of a common intention constructive trust and, accordingly, the entire beneficial interest in the property was solely his.

21.15 Having regard to the facts and evidence in the case, the High Court found that there was no common intention constructive trust. The parties' original intention was to hold the property on a joint tenancy. The defendant had, up until the point of severance, been content for the property to devolve to the plaintiff upon her demise, which was consistent with her generous conduct toward the plaintiff in the past.

21.16 The precipitating cause for the severance of the joint tenancy was the defendant's realisation that the plaintiff had rented out the property without her permission and failed to pay her half the rental proceeds. In her opinion, this was a sign of disrespect to her as his elder sister. In any event, the defendant was legally entitled to sever the joint tenancy under the LTA.

D. Whether properties are held in joint tenancy or tenancy in common in equity

21.17 In Lim Sze Wei v Lim Chuan Wei,11 one of the issues confronting the High Court was whether the two properties in question, namely, the

Ang Mo Kio (“AMK”) property and the Sunrise property respectively, were held in joint tenancy or tenancy in common in equity.

21.18 Both properties were registered in the names of the defendant (the eldest child) and that of his parents as joint tenants. After the demise of his parents, his two younger siblings commenced the present action, in their capacity collectively as executors of their parents' estates, claiming that in respect of the AMK property the parents' estate owned all of it, while in respect of the Sunrise property the parents' estate owned two-thirds. If so, and as both parents under their wills had given their interests in the properties to the first plaintiff (the youngest child), the latter would be entitled to the beneficial interests therein. The defendant counterclaimed that he was the sole beneficial owner of both properties, on the principle that upon the death of a joint tenant the entire interest in the property passes to the survivor.

21.19 Having regard to the facts and evidence in the case, the court found that the parents did not understand or intend at the time the properties were purchased that their...

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