Co-ownership of Immovable Property

By Yeo Swan Neng

In this article, we are looking at how 2 or more persons can own an immovable property (whether HDB or private, residential or commercial). The law provides for 2 forms of ownership, joint tenancy and tenancy-in-common. The form of ownership is recorded on the title document for the property and indicates to the world at large each owner’s share. It also affects how a person’s share in the property will pass on his death.

Tenants-in-common

Proportion of shares – The shareholdings between tenants-in-common need not be equal and can be, for instance, 1/3 : 2/3 or 1/4 : 3/4. Co-owners may decide to have unequal shareholdings for example where the owners wish to divide their shareholdings based on the amount that each had contributed to the purchase price of the property.

Death of a co-owner – If A and B hold the property as tenants-in-common, then upon A’s death, A’s share in the property will form part of his estate and will be distributed in accordance with A’s Will, or if A has died without leaving a Will, his interest will be distributed in accordance with the Intestate Succession Act (Cap. 146). This Act provides for the mode of distribution of the estates of persons dying without a Will. Please note that the mode of distribution discussed does not apply to Muslims.

Any property forming part of a deceased person’s estate cannot be dealt with until the personal representative of the deceased person’s estate has been appointed. The deceased’s executor/next-of-kin will have to apply to the courts for the Grant of Probate (where there is a Will) or the Letter of Administration (where there is no Will) to appoint the personal representative and to vest the property, along with the rest of the deceased’s estate, in that personal representative. Hence, where the property is held under a tenancy-in-common, upon the death of one owner, the other owner will have to wait till the personal representative is appointed before the whole property can be sold or otherwise dealt with.

Joint Tenants

Proportion of shares – In a joint tenancy, each owner will hold the whole property jointly with the other. However, for purposes of estate duty, conversion to tenancy-in-common etc., each owner will be presumed to have an equal share in the property, unless proven otherwise.

Death of a co-owner – If A and B are joint tenants of the property, then upon the death of A, A’s interest in the property will automatically pass to B. Even if A had left a Will, A’s interest in the property will not be distributed in accordance with A’s Will. In other words, the survivor of the two will be entitled to the entire property. This is the right of survivorship.

Sometimes it is unclear which of the owners die first. For example, A and B may have been killed together in a plane crash. In such a situation, there is a presumption in law that the younger dies later.

As A’s share in the property has automatically passed to B, B can deal with the whole of the property. However, if B intends to sell or otherwise deal with the property within 12 years of A’s death, B will have to produce evidence that there is no estate duty payable on A’s estate, or if there is any, the estate duty has been paid.

Conversion of manner of holding

With effect from 1 March 1994, tenants-in-common who have equal shares and joint tenants may convert their manner of holding to a joint tenancy or a tenancy-in-common in equal shares respectively, by making a declaration in the form prescribed under the Land Titles Act (Cap. 157) and registering the declaration at the Singapore Land Registry.

If the owners had granted a mortgage of the property to a financial institution or a charge to CPF Board, the mortgagee’s/CPF Board’s consent will have to be obtained before the declaration can be registered at the Singapore Land Registry.

The comparison between the 2 forms of ownership can be summarised as follows:-

Tenants-in-common Joint Tenants
  1. Shareholdings need not be equal
  1. Upon severance, each owner is presumed to have an equal share.
  1. The rule of survivorship does not apply. The deceased owner’s entitlement in the property passes to his estate.
  1. The rule of survivorship applies. Upon the death of an owner, the deceased owner’s entitlement in the property passes to the survivor(s).
  1. Upon death of a co-owner, the property cannot be dealt with until the personal representative of the deceased co-owner has been appointed.
  1. Upon death of a co-owner, the surviving co-owner can deal with the property. However, estate duty clearance will have to be obtained if the dealing is within 12 years of the death.
  1. Where the shareholding is equal, the tenancy-in-common can be converted to a joint tenancy by registering a declaration in the prescribed form at the Singapore Land Registry.
  1. The joint tenancy can be converted to a tenancy-in-common in equal shares by registering a declaration in the prescribed form at the Singapore Land Registry.

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