Co-ownership

Question 1

Can the action (eg. a vote for en bloc, a lawsuit) of one joint tenant bind the whole legal estate?

Answer 1

An action by one joint tenant, but short of all of them collectively, will not suffice to bind the estate because the whole estate does not reside in the single joint tenant (Goh Teh Lee)

Question 2

Can a joint tenant commence a lawsuit?

Answer 2

A joint tenant has no locus standi to commence a lawsuit unless all other joint tenants are also joined as claimants

Question 3

What would be regarded as ‘joint consent’ to a sale? Would silence suffice?

Answer 3

There must be a positive act. That’s what Ying said.

Question 4

Is a judgement for possession against one joint tenant possible?

Answer 4

No, the judgement for possession must be ordered against all the joint tenants.

Question 5

Can a single tenant-in-common sell the entire property?

Answer 5

He can only sell his share of the estate. If he wants to sell the entire estate, he must get all tenants-in-common to agree.

Question 6

What are the four unities of joint tenancies?

Answer 6

Unity of possession
Unity of title
Unity of time
Unity of interest

Question 7

What is the significance of unity of possession?

Answer 7

Each joint tenant has the right to possess any part of the land; One cannot sue the other for trespass

Question 8

What is the significance of unity of possession?

Answer 8

each of the joint tenants has the right to possess any part of the land; so one cannot sue the other for trespass.

Question 9

What is the significance of unity of possession?

Answer 9

each of the joint tenants has the right to possess any part of the land; so one cannot sue the other for trespass.

Question 10

What is the significance of unity of time and title?

Answer 10

Each joint tenant derives their title from the same source (i.e same conveyance, same will) and their interests must vest at the same time

Question 11

What is unity of interest?

Answer 11

Both you and Rachel have the same interest of the same duration and quality e.g. to Rachel and Jia Hao in fee simple

Question 12

Which of the four unities does a tenancy-in-common have?

Answer 12

Unity of possession only

Question 13

A tenancy-in-common has unity of possession only. True or false?

Answer 13

True

Question 14

Dennis v McDonald

Answer 14

A tenant-in-common was excluded from her property due to domestic violence. Court held that she was entitled to occupation rent for being an ouster.

Question 15

What are the four instances where equity does not follow the law?

Answer 15

1. Unequal contributions to purchase price (Lau Siew Kim, Su Emmanuel, Chan Siew Luan)
2. Loan on mortgage/security
3. Partnership assets
4. Business tenants for separate business purposes (Malayan Credit v Jack Chia)

Question 16

Resulting trust analysis

Answer 16

1. Check for clear intention of transferor. Only rely on presumption when intention is not known as a fact.
2. Presumption of resulting trust prima facie arises when contributions are unequal

Ascertain each tenant’s direct contributions to purchase price to determine proportions of beneficial interest

3. Presumption of advancement prima facie arises for certain relationships
4. Assess strength of presumption and see if it is sufficient to displace presumption of resulting trust or can be rebutted

Question 17

Lau Siew Kim and Su Emmanuel

Answer 17

Proposition 1:
Whether subsequent loan/mortgage repayments will be held as direct contributions to purchase price will depend on whether there was a prior agreement at the time of purchase as to how each party would service the loan.

Such an agreement may be inferred. For instance, if a couple obtained a joint loan but only one of them was working, the court may infer that it was agreed that the working spouse is the one to pay off the loan.

Question 18

Chan Yuen Luan

Answer 18

Proposition 1:
If there is “sufficient and compelling” evidence of a later common intention to hold the beneficial interest in different proportion than that at time of purchase, then that later proportion will take precedence over the initial proportion

Proposition 2:
If there is evidence of an express or inferred common intention that the parties should hold the beneficial interest in a specific proportion, then the court will give effect to that. However, the court cannot impute a common intention to the parties where one did not in fact exist.

Important Obiter:
As obiter, the SGCA endorsed a more relaxed stance to requiring a prior agreement in calculating loan repayments as direct contributions to purchase price. However, the SGCA subsequently reaffirmed the importance of this prior agreement in Su Emmanuel as it led to greater certainty in property transactions, so the latter should be authoritative.

Question 19

Lau Siew Kim

Answer 19

Proposition 1:
Where the loan is secured over property, the ownership of that security should usually be irrelevant in considering direct contributions. The person(s) who undertook liability for that loan will be the person(s) found to have directly contributed

Proposition 2:
Where a property is redeveloped closely after purchase and where its value is increased by the redevelopment, contributions to the costs of redevelopment can be relevant in determining contributions for the purpose of finding a presumption of resulting. Amount will be calculated based on the increase in the value of the land as a result of the renovations/repair.

Proposition 3:
A presumption of advancement arises to prima facie displace the presumption of resulting trust when there is a husband-wife, father-child, a person in loco parentis to a child, and a fiancé-fiancee relationships, if they do not subsequently break their engagement to marry each other

Question 20

What 5 examples did the court in Lau Siew Kim mention in assessing the strength of the presumption of advancement?

Answer 20

If property was purchased as matrimonial home and did indeed so serve, presumption will be stronger

If both parties were legally represented, there is a prima facie inference of informed consent on the parties to hold the properties as joint tenants, and the presumption will be stronger

If mother / child / fiancee was financially dependent, the presumption will be stronger

The more loving the relationship, the stronger the presumption

The presumption will not be rebutted merely because the provider also intended to benefit from the property during his lifetime (i.e receiving rent), because it is possible that the provider still intended for the recipient to benefit from the rule of survivorship

Question 21

Stack v Dowden

Answer 21

The majority in Stack held that where the property is held jointly, equity would follow the law regardless of whether there were equal contributions or not. The burden lay on the party seeking to displace the equal division to show that the parties had a different common intention.

However, Chan Yuen Lan has chosen not to follow the majority approach in Stack.

Question 22

Malayan Credit v Jack Chia

Answer 22

Proposition 1: When tenants hold the premises for separate individual business purposes, equity may infer a tenancy in common.

On the facts, the PC drew this inference from the following facts:
1. The lease was taken out to serve separate commercial interests

2. Each party agreed to occupy separate and unequal spaces
3. Each party agreed to divide the rent and service charges between themselves in unequal proportion (based on space they occupied)

Proposition 2 (obiter): When two parties borrow money using a property they hold jointly as security/mortgage, equity infers a tenancy in common

Proposition 3 (obiter): When partners purchase partnership property, equity infers a tenancy in common

Question 23

What 5 examples did the court in Lau Siew Kim mention in assessing the strength of the presumption of advancement?

Answer 23

If property was purchased as matrimonial home and did indeed so serve, presumption will be stronger

If both parties were legally represented, there is a prima facie inference of informed consent on the parties to hold the properties as joint tenants, and the presumption will be stronger

If mother / child / fiancee was financially dependent, the presumption will be stronger

The more loving the relationship, the stronger the presumption (Lau Siew Kim)

The presumption will not be rebutted merely because the provider also intended to benefit from the property during his lifetime (i.e receiving rent), because it is possible that the provider still intended for the recipient to benefit from the rule of survivorship (Lau Siew Kim)

Question 24

What are the different methods of severance?

Answer 24

1. Severance by statute (s 53(5)- (6) LTA)
2. Severance by ‘operating upon one’s own share’
3. Severance by mutual agreement
4. Severance by a sufficient course of dealing
5. Severance by homicide
6. Severance by bankruptcy of one joint tenant
7. Severance by court order
8. Severance by writ of seizure and sale

Question 25

Requirements for severance by statute

Answer 25

Cite s 53(5)- (6) LTA

The instrument of declaration must be in the approved form and registered

It must be served on all joint tenants

Question 26

What if one joint tenant was holding the land on trust? Will a severance by statute be effective?

Answer 26

No, per s 53(7), severance will not affect the rights of the beneficiary on trust

Question 27

Chan Lung Kien

Answer 27

Proposition 1:
Registration under s 53(6) is crucial.

However, per s 53(8) LTA, the Registrar may dispense of this requirement if it is satisfied that the joint tenant was unable to procure it despite best efforts

Proposition 2:
Severance is effected when a joint tenant is made bankrupt. The Official Assignee will be tenants-in-common with the remaining joint tenant(s) of the property.