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> Co-ownership of Immovable Property
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. |
| |
|
|
| 2.
The rule of survivorship does not apply. The deceased owner's
entitlement in the property passes to his estate. |
|
2.
The rule of survivorship applies. Upon the death of an owner,
the deceased owner's entitlement in the property passes
to the survivor(s). |
| |
|
|
| 3.
Upon death of a co-owner, the property cannot be dealt with
until the personal representative of the deceased co-owner
has been appointed. |
|
3.
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. |
| |
|
|
| 4.
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. |
|
4.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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