Singapore Land Law: A Comprehensive Guide

Posted on Sep 8, 2024 in Law & Jurisprudence

Background of Singapore’s Legal/Common Law System

Sources

  1. Parliament
  2. Cases [Reception of English Law *2nd Charter of Justice 1826]

Judicial Structure & Doctrine of Binding Precedent

Subordinate Courts – High Court – Court of Appeal. Lower courts are bound by decisions of upper courts.

Civil vs Criminal Law

Nature of difference, terminology, consequences.

Application of Doctrine of Tenures & Estates

Origin

Norman Conquest (1066) “All land belongs to the King”

Singapore

Article 160 of the Republic of Singapore provides for the succession to the Republic of all property previously vested in the Crown. “All land belongs to the State.” [State has reversion once lease expires!]

Freehold

  1. Fee simple: No terms and conditions attached.
  2. Estate in perpetuity: Subject to terms and conditions.

Leasehold

State Land Acts Rule 10: Leasehold estates cannot exceed 99 years.

Real Rights vs Personal Rights

Real rights allow claiming the ‘res’ (the real thing), while personal rights allow claiming monetary compensation.

[RR is where a person has complete title/control over a thing/PR is one against another person for the performance of an obligation] {RR are absolute rights and can be enforced against anyone but PR can be enforced against the other party to the contract}

Land vs Chattels Dispute

Recover land in a ‘real’ action vs entitled to only damages for chattels.

Section 2(a) Land Titles Act (LTA)

LAND is the surface of any defined parcel of the earth, all substances thereunder and so much of the column of airspace above the surface, as is reasonably necessary for the proprietor’s use and enjoyment, or fixtures. (Fixtures are assets that are installed or fixed in or to a property and therefore become part of that property in law. Fixtures are land and form part of it and in the event of a sale, cannot be removed from the property without any conditions stating it can in the contract. The second type of property are chattels which are not land but are simply personal property that may be taken away if the seller wishes to do so. A chattel is usually tangible and moveable, although they are capable of becoming fixtures if they are fixed in or onto a building.)

Bernstein of Leigh v Skyviews (1978)

The case established that a property owner does not have unlimited rights over the airspace above their land.

Elitestone v Morris (1997)

Legal criteria to decide for fixture/chattel: 1. Degree of annexation 2. Object or Purpose of annexation [Whether the wooden house resting on its own weight on concrete pillars built onto the ground was part of the land or remained a chattel? Held: part and parcel of the land] (3 classifications for objects brought onto land a) chattel, b) fixture, c) part and parcel of land itself)

Exceptions to Land

– Mineral deposits (State Lands Act), restrictions on use of airspace (Civil Aviation Act, Air Navigation Act), restrictions arising due to public policy (Building Control Act & Planning Act)

Equity’s Emergence

Deficiencies in Common Law

  1. Writ System (No writ, no remedy). Writ: formal legal document that provides a cause of action/must be available to commence litigation, plaintiff issues the writ against defendant (gives notice), defendant given 21 days to respond (file for his defense) {presence of writ means I have a legal basis for suing you}
  2. Court Procedure (Technicality & Rigidity? Unfair and harsh outcomes)
  3. Limited Remedies (ONLY offered damages/monetary compensation)

Consequences

Petitions addressed to King as “fountain of justice” to remedy wrongs.

Emergence of Equity

King inundated by a lot of grievances of litigants? Delegate tasks to Lord Chancellor (steeped in religion – Ecclesiastic) “keeper of the King’s conscience” [C concerned with conscience & morals], (1474) issued decrees in his own name? Formation of “Court of Chancery”: litigants interrogated under oath, objective is to mitigate the rigors of common law (complementary – softer approach). Gaps in common law filled in by Chancery but criticism: varied according to the length of C’s foot? Subjective, based on conscience.

Maxims of Equity

Equity does not suffer a wrong to be without a remedy, where the equities are equal the 1st in time shall prevail, he who seeks equity must do equity ‘clean hands’ rule, delay defeats equity, equity looks to the intent rather than form *more probing & detailed? Goes deeper to actually try & solve the problem.

Union of Courts of Law & Equity

Fusion of administration Section 3 of Civil Law Act “law & equity to be administered concurrently by the same courts” (all courts can enforce both rights and remedies) {in the past, had to go to separate courts for different remedies}

Trust: Settlor, Trustee & Beneficiary

Instances where landowner at common law conveyed his estate in the land to another with instructions that it was to be held “to the use of” a person known to him? Led to abuses (common law: don’t recognize B’s interests as purchaser has obtained a good legal title.

Around 1400, Chancery Court recognized that: The person in whom the legal estate was vested were the nominal owners (trustees) and beneficiaries were the owners of the nominal estate [Separates legal ownership from the beneficial use and enjoyment of the land].

s. 53(1) of the Conveyancing and Law of Property Act (CLPA) states that “a conveyance of an estate or interest in land must be made by deed in the English language“? Before legal interest in land can pass.

T has nominal title & B has equitable title.

Legal vs Equitable Interest: Enforceability

L is enforceable “against the whole world” & E is enforceable against the whole world except {the bona fide purchaser for value} [without notice] Equity’s Darling (ought to have known? Constructive imputed notice).

Equitable Remedies

Discretionary and cannot be arbitrarily given.

E.g. Specific performance (+ve in nature? Do something), Injunction (-ve).

Contract

Formation

Offer, Acceptance (must be absolute & unconditional), Consideration (“IN CASH OR IN KIND”), Intention to create Legal relations (Domestic/Social vs Business agreement), Formalities for immovable property – there must be “some note or memorandum in writing” (s6 Civil Law Act) [land? Heterogeneity? No misunderstanding] Terms of a contract/Conditions/Covenants: Express (stated out/articulated) & Implied (understood) PROB: ‘what is obvious to you, may not be obvious to me’ *Law will only enforce promises with CONSIDERATIONS (a promise made in deed essentially a contract [ENFORCEABLE]).

Covenants

Positive (do something aka paint fence) / Negative (restrictive).

Parties Involved

Covenantor (the one who agrees – B) & Covenantee (the one who offers).

Contractual Obligations

Privity doctrine? Relationship that exists between immediate parties to a contract? Consequence: 3rd parties are not privy to the contract (can’t have duties & rights)? Enforceability of covenants where there is privity i.e. between original parties (1833) Price v. Easton, where a contract was made for work to be done in exchange for payment to a 3rd party. When the 3rd party attempted to sue for payment, he was held to be not privy to the contract so his claim failed? Linked to the doctrine of consideration.

There exists both BENEFIT & BURDEN? COMMON LAW? Benefit may be passed on/assigned to a 3rd party & BURDEN of a covenant NEVER passes.

One who enjoys benefits? Dominant Tenement & one who suffers burden? Servient Tenement.

General Rule at Common Law

Burden of covenant does NOT run with the land Austerberry v Oldham Corporation (1885). “Successors in title” can’t be imposed with the burden.

Equity

(IMPORTANT CONTRIBUTION) Burden can “run with the land” that is for negative or restrictive covenants*. Thus, only positive covenants can’t be passed on to a 3rd party.

“Burden” of Covenants – Position in Equity: Tulk v Moxhay (1848)

[‘”Touches and concerns land”? Must affect how the land is used or the value of the land) & benefits covenantee.’] Original parties: Tulk & Elms. T, owner of Leicester Square sold it to Elms, who covenanted to “keep the Square as an open space without buildings”. Thereafter, the Square was sold a number of times till it came into Moxhay’s (the defendant) hands. M admitted that he knew about the covenant yet M proposed to put up buildings on the Square. Tulk (plaintiff) sought to restrain M from breaching the covenant. Held: In order for the burden to run, the covenant must satisfy certain requirements: It must “touch and concern” the land. The original parties must have intended that the burden run. The party to be burdened must have had notice of the covenant. The party to be burdened must hold or acquire the same interest in the property that the original promissor held.

Discharge of Covenants

Unity of DT & ST (1 owner), Effluxion of time – 20 years, Release (mutual agreement between both), Change of use where continuance of restriction impedes development of land for public or private purpose.

Easement

Right over the land of another/”in alieno solo” [can be positive & negative].

“It is a privilege acquired by one landowner for the benefit of his land over the land of another who is bound to submit to the enjoyment of that privilege”

Creation

Expressly (in writing), Impliedly (easement of necessity: landlocked property) & By statute [*generally not easily implied, necessity has to be shown? Dire necessity (otherwise, in fact you are burdening others)].

Characteristics: Landmark case: Re Ellenborough Park (1956)

Owner of an Estate that included the above Park, sold several plots surrounding the Park. The buyers of those plots had rights to use the park provided they contributed to the upkeep. The owner of the Park covenanted to “keep the Park as an ornamental pleasure ground” (issue was if subsequent owners of the plots had the same right to use the Park?).

Held: Pre-requisites for an Easement

  1. There must be a DT & ST.
  2. The easement must accommodate the DT i.e. The right must enhance the ownership of the DT, not for DT’s personal benefit.
  3. DT and ST must be in separate hands.
  4. The right must be capable of forming the subject matter of a grant [SPECIFIC, CAN’T BE VAGUE].

Nature of Easement

The right & burden is embedded in the property itself (*exception to privity doctrine) NOT AN ISSUE OF WHETHER BUYER HAD NOTICE.

Other Limitations

  1. It must not impose an obligation on the ST to expend money nor do any positive act.
  2. Must not oust the servient owner i.e. must not give “exclusive and unrestricted use of a piece of land to the dominant tenement”.

Types

Right to light, Right of way (most common), Right to air.

Natural Right of Support

Arises automatically from ownership of land, whereas easements must generally be created (SUPERIOR).

Singapore Court of Appeal Decision: Xpress Print v Monocraft Pte Ltd (1999)

Xpress Print Pte Ltd appealed against Monocraft Pte Ltd in relation to damage caused by the latter’s excavation works carried out on an adjoining property. Yong Pung How, CJ, referring to landowner’s right of support, recognized that ownership in land is as much a social obligation as it is a private right. The Court of Appeal based its decision on the Latin maxim “sic utere tuo ut alienaum non laedes”, use your property in such a way as not to injure the rights of others. In practical reality translated into a correlating duty of the adjoining landowner not to cause damage to his neighbour’s land by excavating or otherwise removing his land without first securing alternative means of support. (M breached that duty).

Financing Purchase of Real Estate Including (a) Charge and (b) Mortgage

CPF [Private Residential]

Direct payment & repay housing loan? Creates “charge” on property (doesn’t require transfer of possession nor title to creditor).

  • Rests entirely on agreement between debtor and creditor.
  • When property (bought with CPF) is sold or transferred, the member has to return the CPF savings withdrawn & accrued interest to his CPF account.
  • Where he is unable to pay the debt, s 21 (4) entitles the creditor to sell the debtor’s property.

Mortgage

‘A form of security whereby debtor conveys title of the property to the creditor, but with a proviso for the re-conveyance of the title, on payment of the sum lent together with interest’ [/Borrower & Mortgagee/Lender] *CONTRACT.

: Completing the prescribed/approved form under the Land Titles Act (s 68).

Common Law & Equity in Mortgages

COMMON LAW: ABIDE CONTRACT, EQUITY: equitable right to redeem property on the basis that it’s a security for a loan? Help mortgagor? “Equity of redemption”: ensure that the purpose of the mortgage is not defeated i.e. to provide security for money lent and nothing more “once a mortgage, always a mortgage”.

Standard Form Agreement vs Freedom of Contract

  1. Standard form agreement: Lopsided bargaining power/Little scope of negotiation.
  2. Freedom of contract: Parties are on equal footing.

“No Clogs on the Equity of Redemption”

Court will not permit any clogs/blockages on EOR; right to redeem can’t be ousted (protect mortgagor from being treated oppressively).

  • Ensure that the mortgagee did not introduce any artificial stipulations into the contractual arrangements to impede a mortgagor’s ability to satisfy obligations and reclaim the property. Such impediments are “clogs” on the equity of redemption, and the courts of equity were particularly astute in striking down any provision that was, or in later cases, might be a clog.

(1) Postponement of Contractual Right to Redeem: Fairclough v Swan Brewery

The mortgagor took a 20-year mortgage and was required to repay the loan and interest in 209 monthly installments. The final installment was just 6 weeks before the end of the lease.

Held: This arrangement/clause affected the borrower’s equity of redemption and would be struck out.

(2) Restraint of Trade: Esso Petroleum and Harper’s Garage (1966)

Which involved a 21-year agreement. One of the clauses stated that the mortgagor would only buy and sell the mortgagee’s products. The clause was held to be in restraint of trade.

(3) Unconscionable and Unfair Terms: Hong Leong Finance v Tan Gin Huay

Where the issue pertained to the exorbitant interest imposed on default payment.

Mortgagee’s (Lender’s) Rights

  1. Right to insure.
  2. Foreclosure and the right to transfer: Lender can exercise the power of sale (Obtain “best possible price”? Auction).

Co-ownership of Land

When different persons hold interests [concurrently] [in the same land]? 1. Joint tenancy 2. Tenancy in common.

Joint Tenancy

Where 2 or more parties hold the property without any words of severance e.g. “To A and B in fee simple”? Case of Matrimonial Property & Trustees.

Characteristics

  1. Right of survivorship arises on the death of any party, his interest automatically passes on to the other party/parties, overriding any provisions in his Will.
  2. The Four Unities
    • Unity of Possession
    • Unity of Interest (duration of interest must be the same)
    • Unity of Title (obtained from the same “instrument”)
    • Unity of Time (title must vest in tenants at the same time)

Problems Arising/Legal Disputes (Due to No Words of Severance)

  1. Pre-nuptial agreements – enforceability.
  2. Matrimonial Property.

Women’s Charter: Financial Provisions Consequent on Matrimonial Proceedings

s112—(1) The court shall have power, when granting a judgment of divorce, judicial separation or nullity of marriage, to order: division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable. (POWER OF COURT).

(2) It shall be the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters: (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets.

Pre-nup Agreement: Landmark Court of Appeal Decision in TQ v TR (2009)

Wife a Swedish national, Husband a Dutch national. The prenup agreement stated that “there shall be no community of matrimonial assets whatsoever between the spouses”. High Court upheld the agreement on matrimonial assets so that no order was made as to the division of assets. Court differentiated between pre-nuptial and post-nuptial agreements and contrasted the different situations under which they are made. Post-nuptial agreements are more likely to provide for recent circumstances, whereas pre-nups may have been based on outdated conditions or based on expected events which failed to materialize. A prenup may be given less regard, or disregarded because it may not represent what is “just and equitable” under current circumstances. The post-nup agreement may be given more weight because it would have been made closer to the time of divorce, thus reflecting current circumstances.

The prenup in TQ v TR was accorded “magnetic importance” because it involved a foreign agreement made by parties who were at that time not yet connected to Singapore and it seemed fair to hold the parties to the prenup because at the time it was made, the parties thought that it was valid and binding on them as such agreements were valid under Dutch law.

Summary of Court of Appeal Decision

  1. Re division of matrimonial assets, the Court will have regard to all the circumstances of a case (s 112(2) of Women’s Charter) and this includes a prenup agreement.
  2. What weight a prenup will be given depends on the precise facts and circumstances of the case.
  3. In an appropriate situation, a prenup may be accorded significant – even conclusive – weight.
  4. Court may be readier to place more emphasis on the fact that the prenup in question has been entered into by foreign nationals and is governed by and is valid according to a foreign law. Decision in line with UK Supreme Court decision in Radmacher v Granatino (2010).

Equity’s Intervention: Presumption of Resulting Trust

(i) Where property is purchased by ONE person and placed in the name of another.

(ii) Contributions by BOTH Spouses, but property in the name of only one of them – then the beneficial interest in the trust “results to the transferor”? “Resulting” Trust.

Basis: “Equity does not presume gifts”, Leading case: Dyer v Dyer (1788).

The passage below was cited with approval and followed in Peh Eng Leng v Pek Eng Leong [1996]: “The clear result of all the cases, without a single exception, is, that the trust of a legal estate … whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it…” Lord Browne-Wilkinson’s observations in Westdeutsche Landesbank Girozentrale v Islington Borough Council [1996], cited with approval by the Court of Appeal in Lau Siew Kim v Yeo Guan Chye Terence [2008]:

“Under existing law a resulting trust arises where A makes a voluntary payment to B, and A pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. “It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer.”

“For a resulting trust to arise, proof of payment of the purchase price is crucial. This is because where the money used for the purchase of the property in the name of B was provided by A, there is a prima facie implication of a resulting trust in favour of A. The legal burden of proof is on that person A who is asserting the existence of a resulting trust to establish that he provided the entire purchase price of the property at the time of the purchase. In cases where only a proportion of the price was provided by A, then only a proportionate interest can be claimed in reliance of the presumption”.

Presumption of Advancement: [SPECIFIC PEOPLE INVOLVED]

Applicable in situations of loco parentis (parent/child) or from husband to wife where the transferor or the provider of the money (or property) is under an equitable obligation to support, or make provision for, the person to whom the property is conveyed.

(i) Where legal estate is vested in only one of the spouses (Estate is found to be owned beneficially by BOTH spouses).

(ii) Where property is in the names of BOTH Husband and wife, but the wife made no direct or indirect contribution. Toon Boon Lee v Yeo Ah Beng (1986).

Main issue: extent of the other spouse’s beneficial interest.

NOTE: The resulting trust is contradicted by the presumption of advancement.

Constructive Trust

To prevent fraudulent/unconscionable dealings.

For e.g. where property is purchased in the name of one spouse, whether or not the other spouse can have an interest in the property depends on whether there is scope for the application of the presumption of resulting trust OR whether there is a common intention that she/he should have an interest.

e.g. Eves v Eves where an unmarried couple purchased a house in the man’s name, the woman did an unusual amount of work in the house including breaking up the concrete pavement by wielding a 14 lb. sledgehammer. The man had told her that her name could not appear in documents, as she was then underaged. This was not true. The Court of Appeal held that on the facts, that there was a common intention between the parties that she was to have an interest in the house.

Grant v Edwards and Lloyds Bank v Russet, where the court held that direct payments of money referable to the acquisition of the property for example the payment of the deposit, or mortgage installments, can be sufficient conduct to infer a common intention to have an interest in the property.

Severing Joint Tenancy

(1) Unilateral Deed of Severance S53(5) of Land Titles Act – Unilateral Deed of Severance, Instrument of declaration, Approved form, Served on the other joint tenants, Instrument must be registered Diaz v Diaz.

(2) Severance in Equity: Where a JT enters into a legally binding agreement to dispose of his interest to a third party, Where the joint tenants mutually agree to sever the joint tenancy so that each has a share in the property, Where there is a sufficient course of dealing to show that the interest of all the joint tenants are to be mutually treated as tenancy in common, Where one JT kills another.

Tenancy in Common

Arises whenever land is limited to two or more persons and words of severance are used e.g. to X & Y equally, to A and B in equal shares.

Under S53(2) of Land Titles Act: presumed to hold in equal undivided shares.

Characteristics

  • No right of survivorship.
  • Only unity of possession.
  • Can convert to Joint Tenancy (s. 53(3) of the Land Titles Act).

Equity’s Intervention Affects Joint Tenancy

  • Did not favour the right of survivorship.
  • Leant in favour of tenancy in common.
  • Circumstances when equity treats persons as tenants in common rather than joint tenants? 1. Where land is bought by partners – “the right of survivorship has no place in business” Malayan Credit Ltd v Jack Chia-MPH.

2. Where two or more persons purchase land with money provided by them in unequal shares. 3. Where a joint mortgage is granted in favour of two or more persons.

4. What happens where the purchase price is paid in EQUAL shares?

Sale & Purchase of Land: STAGE 1 Contract Stage (Time Lag Between the 2 Stages)

Contract: basis of all commercial transactions. [All contracts are agreements but not all agreements are contracts].

O: Differentiate from an invitation to treat? Advertisement, auction (not obliged to sell at the advertised price).

A: Absolute, unqualified & unconditional, match terms of offer.

C: Bare vs legally enforceable promises? “Bargain” or “exchange” (in cash or in kind, no question of enough).

I: Intention to create legal relations? Social/domestic vs business agreements (parties related?).

F: Must be in writing s6(d) Civil Law Act, S11 of Electronics Transaction Act (ETA).

Stages Within the Contract Stage: OTP (Price, Property, Parties, Other Provisions)

(i) Option to Purchase

  • Effect on buyer (proceed? Sales & purchase agreement, don’t exercise option? 1% forfeited).
  • Effect on seller (give buyer 14 days to consider, option issued? Seller’s hands tied).

SpirovGlencrownPropertiesLtd (1991)

Held: “from the point of view of the purchaser, the option is an irrevocable offer (seller can’t revoke), while from that of the vendor, it is a conditional contract (buyer can decide not to proceed)”.

Issues Arising

  1. Where the option itself requires a formal contract of sale: JT Chanrai Pte Ltd v Consolidated Hotels (1987). Facts: Option provided that within two weeks of its exercise, parties were required to enter into a sale and purchase (S & P) agreement failing which the deposit will be forfeited. Purchaser exercised option and paid the required 10% but failed to sign the agreement. Deposit was forfeited by vendor.
  2. Effect of words “Subject to contract”? Advantage: flexibility, disadvantage: uncertainty. Where parties have already concluded an oral or written contract and a formal contract is to be entered into subsequently. Tai Tong Realty v Galstaun (1973).
  3. “subject to *satisfactory replies to requisitions” Preliminary Enquiries & Requisitions. “In-principle” agreement already made BUT Investigation of Title by purchaser’s solicitors necessary. Common Issue: Roads and backlanes may be subject to improvement or widening in the future. Meaning of “subject to satisfactory replies to requisitions” – See Chu Yik Man v S Rajagopal (1987) and Lim Kim Lian v Swee Eng (1988) (Tutorial 4). Enquiries as to Compulsory Acquisition – See Sheriffa v Lim Kim Som (1992).

(II) Terms

  • Terms of a contract may be – Express – Implied.

(III) Vitiating Factors

  1. Misdescription and Misrepresentation (dealt with later).
  2. Incapacity.
  3. Illegality.
  4. Duress and Undue Influence.
  5. Mistake: Chwee Kin Keong and Others v DigilandMall.com Pte Ltd. As a general rule, a party to a contract was bound even though he may have made a mistake in entering into the contract. However, a party who was aware of the error made by the other party could not claim that there was consensus ad idem. Overriding principle is that of caveat emptor… But….there is a balancing of rights.

Misdescription – Generally Written

Where it relates to a minor deficiency, the vendor can still obtain specific performance, but may have to compensate the purchaser. Where misdescription is substantial, the purchaser is entitled to rescind. Misdescription by developer – regulated by legislation – Housing Developers (Control and Licensing) Act, Sale of Commercial Properties Act.