Sei sulla pagina 1di 95

Singapore

by Prof. Sook Yee Tan

and

Hans Tjio

This text is up to date as of May 1998

2000

Kluwer Law International The Hague • London • Boston

Property and Trust Law (February 2000)

Property and Trust Law (February 2000)

Singapore – 1

Singapore – 1

The Authors

The Authors Tan Sook Yee B.A. (Mod) Trinity College Dublin, LL.B. Trinity College Dublin, Barrister Middle
The Authors Tan Sook Yee B.A. (Mod) Trinity College Dublin, LL.B. Trinity College Dublin, Barrister Middle

Tan Sook Yee B.A. (Mod) Trinity College Dublin, LL.B. Trinity College Dublin, Barrister Middle Temple and Advocate and Solicitor of the Supreme Court Sin- gapore, Associate Professor at the National University of Singapore, Faculty of Law was Dean of the Faculty of Law, National University of Singapore from 1980 to 1987. She has taught Land Law and Equity and Trusts for many years and has written extensively on these subjects, including two books, Principles of Singapore Land Law and Private Ownership of Public Housing in Singapore. She is currently a member of the Strata Titles Board and the Tenants Compensation Board.

Hans Tjio B.A. (Hons) Cambridge, UK; LL.M. Harvard, USA, Barrister (Middle Temple) and Advocate and Solicitor of the Supreme Court Singapore, Senior Lecturer and Sub-Dean at the Faculty of Law, National University of Singapore. He has taught at the Faculty of Law, National University of Singapore since 1990 in areas such as banking, company, commercial and contract law, and equity and trusts. He has also pub- lished in local and overseas journals, including the Law Quarterly Review and Journal of Business Law.

Property and Trust Law (February 2000)

Singapore 3

The Authors

4 Singapore

Property and Trust Law (February 2000)

Table of Contents

The Authors

3

Table of Contents

5

List of Abbreviations

13

General Introduction

15

§1. General Background

15

 

I. Geography, History and Climate

15

II. Cultural Composition

16

III. Political System

16

§2.

Legal Background of the Country

17

I. Constitutional Framework

17

II. Parliament and Legislative Process

18

III. Common Law and Judicial Process

19

IV. Executive Powers and Administrative Law

20

§3.

Introduction to the Law of Property and Trust

21

I. Historical Origins and Evolution

21

II. Concept of Ownership

23

 

A. Unity and Fragmentation

23

B. Immovable and Real Property

25

C. Movable and Personal Property

26

 

III. Trust and Fiduciary Mechanisms

27

 

A. Trusts and Equitable Interests

27

B. Fiduciaries

28

 

IV.

Possession and Title

29

Selected Bibliography

31

Part I. Immovable Property and Real Property

33

Chapter 1. General Classification

33

§1. Classication

33

§2.

Land and Fixtures

34

Property and Trust Law (February 2000)

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Table of Contents

 

§3. State Lands

34

 

I. State Lands and State Leases

34

II. Grants in Fee Simple

35

III. Reversion to State

35

Chapter 2.

Legal and Equitable Interests

37

Chapter 3.

Registration Systems

40

§1. Registration of Deeds

40

 

I. In General

40

II. Reasons for Registration

40

 

A. Admissibility as Evidence of Title

40

B. Priority

41

 

III.

Problems

42

§2.

Land Titles Act

42

I. Bringing Land under the Land Titles Act

42

II. Qualied Titles

43

III. Effect of Registration

43

IV. Indefeasible Title

44

 

A. Assurance Fund

44

B. Overriding Interests

44

C. Exceptions

44

 

V. Unregistered Interests and Caveats

45

Chapter 4. Limited Interests

47

§1. Leases

 

47

 

I.

Kinds of Leases

47

 

A. Fixed Term Lease

47

B. Periodic Lease

48

C. Tenancy by Estoppel

48

D. Reversionary Lease

48

 

II.

Requirements for Validity

49

 

A. Exclusive Possession

49

B. Certainty of Duration

49

C. Formalities

50

 

III.

Assignment and Sublease

50

 

A. Assignment

50

B. Sublease

51

 

IV.

Determination of Leases

51

 

A. Expiration of Term

51

B. Notice to Quit

52

C. Surrender

52

D. Merger

52

E. Frustration

53

F. Forfeiture

53

6 Singapore

Property and Trust Law (February 2000)

 

Table of Contents

V.

Rights of Landlord and Tenant

53

A. Implied Terms

53

 

1. By the Landlord

53

2. By the Tenant

54

 

B. Usual Covenants

54

C. Other Commonly Expressed Covenants

54

VI.

Remedies for Breach of Covenant

55

A.

Damages

55

B. Forfeiture

55

C. Distress

55

VII.

Covenants and Successors in Title

56

§2. Licences

 

56

I. Nature and Types of Licences

56

II. Distinction Between a Licence and a Lease

57

III. Rights of Licensees

58

 

A. Gratuitous Licence

58

B. License Coupled with a Grant

58

C. Contractual Licence

58

D. Licence Coupled with an Equity

58

§3. Easements

 

59

I. Easement Distinguished from Other Rights

59

II. Characteristics of an Easement

60

III. Under General Law

61

 

A. Acquisition of Easements

61

B. Extinguishment of Easements

62

IV. Under the Land Titles Act

62

 

A. Acquisition of Easements

62

B. Extinguishment of Easements

63

V. Profits a Prendre

64

§4. Restrictive Covenants

64

I. At General Law

64

 

A. Running of the Burden

64

B. Annexation of the Benet

65

C. Discharge of Restrictive Covenants

66

II. Under the Land Titles Act

66

 

A. Running of Burden

66

B. Annexation of Benet

67

C. Discharge

67

III. Remedies for Breach of Restrictive Covenant

67

Chapter 5. Security Interests

68

Property and Trust Law (February 2000)

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Table of Contents

Chapter 6. Joint Ownership

70

§1. Joint Ownership of Immovable Property

70

 

I.

In General

70

 

A. Joint Tenancy

70

B. Tenancy in Common

71

C. Termination of Co-ownership

72

 

II.

Co-ownership Applied to Apartment Buildings

73

 

A. In General

73

B. Strata Title Plan

74

C. Management Corporation

75

D. Maintenance and Sinking Funds

76

E. Meetings

76

F. Rights and Liabilities of Management Corporation Re Common Property

76

G. By-laws

77

H. Rights and Obligations of Subsidiary Proprietors

78

I. Termination of the Strata Title Plan

79

§2.

Joint Ownership of Movable Property

80

Chapter 7. Persons Who May Own Interests in Land

81

§1. General

 

81

 

I. Infants

81

II. Mentally Disordered Persons

81

III. Societies

81

IV. Partnerships

82

V. Married Women

82

§2. Under the Residential Property Act

82

Chapter 8. Planning and Development

85

§1.

Under the Planning Act

85

§2.

Land Acquisition

86

§3.

De-control of Rent Control Premises

86

§4.

Statutory Authorities Involved in Development

87

I. Urban Redevelopment Authority

87

II. Housing and Development Board

87

III. Jurong Town Corporation

87

IV. The Preservation of Monument Board

88

Chapter 9. Public Housing

89

§1. Housing and Development Board

89

 

I. General

89

II. Home Ownership Policy

89

 

A. Eligibility

90

B. Rights and Obligations of Owners

91

 

III. Management of Common Property

91

8 Singapore

Property and Trust Law (February 2000)

 

Table of Contents

§2. Middle Income Public Housing

92

 

I. Housing and Urban Development Corporation

92

II. Executive Condominium Housing Scheme

93

Part II. Movable Property and Personal Property/Chattels

95

Chapter 1. General Classication

95

§1.

Tangible Movable Property and Choses in Possession

95

§2.

Intangible Movable Property and Choses in Action

95

I. General

95

II. Documentary Intangibles

96

§3. Funds

 

97

 

I. Money

97

II. Mixed Funds or Assets

98

§4.

Chattels Real

98

Chapter 2. Legal Interests

100

§1.

Ownership and Possession

100

§2.

Sanctity of Legal Interests

100

§3.

Special Property

101

§4. Bailment

 

101

§5. Co-ownership

102

Chapter 3.

Equitable Interests

103

Chapter 4.

Security Interests

104

Part III. Acquisition of Property Rights

105

Chapter 1. Transfer of Property by Contract INTER VIVOS

105

§1.

Importance of Ownership

105

§2. Land

 

105

 

I. Sale by Non-developers

105

II. Sale of Units by Developers in Developments for Residential and Commercial Purposes

107

 

A. Residential Developments

107

B. Commercial Developments

108

§3.

Tangible Property: Chattels

109

I. General

109

II.

Specic Goods

109

III.

Unascertained Goods

110

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Table of Contents

Chapter 2. Transfer of Property by Death

111

§1.

Law Applicable to Adherents of the Muslim Faith

111

§2.

In General

111

I. By Will

111

II. Intestate Succession

111

III. By Nomination

112

IV. Right of Survivorship

112

V. Donatio Mortis Causa

112

§3. Personal Representatives

113

 

I. Executors

113

II. Administrators

113

III. Estate Duty

114

Chapter 3. Possession

115

§1. General

115

§2.

Constructive Possession

115

§3. Finding

116

Chapter 4.

Gifts

117

§1. General

117

§2. Delivery

117

Chapter 5. Accession

118

 

§1. Land

118

§2. Chattels

118

Chapter 6. Expropriation

119

§1. Compulsory Acquisition of Land

119

 

I. Purposes for Acquisition

119

II. Compensation

119

III. Appeal

120

IV. Vesting of Title in State

120

§2.

Other Forms of Expropriation

120

Chapter 7. Insolvency

122

Part IV. Trust and Fiduciary Mechanism

123

Chapter 1. Administration of Property/Trusts

123

§1. General

123

§2.

Resulting Trust

124

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Property and Trust Law (February 2000)

 

Table of Contents

§3. Express Trusts

124

I. Certainty

125

II. Discretionary Trusts

125

III. Constitution

126

Chapter 2. Trusts Arising by Operation of Law

127

§1. Constructive Trust

127

I. Prevention of Fraud or Unconscionable Conduct

127

II. Breach of Fiduciary Duty

128

III. Constructive Trusteeship

129

Part V. Security

131

Chapter 1. Securities in Immovable Property

131

§1. Liens and Charges

131

I. Under General Law

131

II. Under the Land Titles Act

132

§2. Mortgages

132

I. Under General Law

132

A. Formalities

132

B. Equity of Redemption

133

C. Mortgagees Remedies

133

D. Discharge of Mortgages

134

II. Under the Land Titles Act

134

III. Priority of Mortgages and Charges

135

A. Under General Law

135

B. Under the Land Titles Act

135

IV. Transfers of Mortgages and Sub-mortgages

135

V. Reverse Mortgages

135

Chapter 2. Securities in Movable Property

136

§1. General

136

I. Rationale for Security

136

II. Types of Security

136

§2. Charges

137

I. General

137

II. Charge over Ones Own Indebtedness

138

III. Registration and the Perfection of Security

139

A. Individuals

139

B. Companies

140

IV. Floating Charge

140

A. Conceptual Basis

140

B. Characteristics

141

Property and Trust Law (February 2000)

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Table of Contents

 

C. Fixed or Floating?

141

D. Priority of the Floating Charge

142

V.

Negative Pledge

143

§3. Pledge

143

I. General

143

II.

Creation of a Valid Pledge

144

III.

Usual Settings for Pledges

145

IV.

Attornment

145

V.

Registration

146

VI.

Continuance of Pledge

146

VII.

Trust Receipts and Letters of Hypothecation

146

§4. Quasi-security

147

I. General

147

II. Retention of Title

147

III. Direct Payments

148

IV. Flawed Asset and Netting (Set-off) Arrangements

148

V. Quistclose Trust

149

§5. Assignments of Choses in Action

149

I. General

149

II. Statutory Assignments

150

III. Assignment in Equity

151

IV. Unassignable Choses in Action

153

V. Subject to Equities

153

VI. Priorities

154

Index

155

12 Singapore

Property and Trust Law (February 2000)

List of Abbreviations

AC

Appeal Cases

All ER

All England Law Reports

Cap.

Chapter in the Singapore Statutes

CLR

Commonwealth Law Reports

Ch/Ch D

Reports of the Chancery Division

Conv.

Conveyancer

DLR

Dominion Law Reports

ER

English Reports

FMSLR

Federated Malay States Law Reports

KB

Reports of the Kings Bench Division

Ky.

Kyshe Reports

LQR

Law Quarterly Review

MLJ

Malayan Law Journal

Mal. LR

Malayan Law Review

Modern LR

Modern Law Review

QB/QBD

Reports of the Queens Bench Division

SAc.LJ

Singapore Academy of Law Journal

SJICL

Singapore Journal of International and Comparative Law

SJLS

Singapore Journal of Legal Studies

SLR

Singapore Law Reports

SSLR

Straits Settlements Law Reports

WLR

Weekly Law Reports

Property and Trust Law (February 2000)

Singapore 13

List of Abbreviations

14 Singapore

Property and Trust Law (February 2000)

General Introduction

§1. General Background 1

I. Geography, History and Climate

1–3

1. Singapore is a tiny Southeast Asian city-state of only 648 km 2 , with a total

population of about 3 million citizens and permanent residents, giving an average population density of 4,630 inhabitants per km 2 living in a 100 per cent urban environment. The country consists of one main island and about 60 other much smaller ones. Most of the population lives on the main island of Singapore which lies at the southern end of the Malay Peninsula, at the very southern-most point of the European-Asian continent. To the south lies its giant neighbour Indonesia, and to its north is Malaysia, with which country Singapore shares a great part of its history. Inhabited possibly as early as the 3rd century, Singapore acquired its present name (which means ‘Lion City’) by the end of the 14th century. In 1819, the British claimed possession of Singapore as a colonial trading post.

1. This section and the one that follows immediately is an amended version reproduced from Medical Law by Terry Kaan International Encyclopaedia of Laws (Singapore).

2. Except for the Japanese Occupation of the city from 1942 to 1945, Singa-

pore remained under British rule until self-government was granted by the British in 1959. Four years later, the British relinquished all remaining claims to Singapore when it voluntarily entered into a federal union with the states of the then Federa- tion of Malaya, and two other British territories in Borneo to form the new Fed- eration of Malaysia. This merger with Malaysia was, however, to last for only two years. As a result of unresolved political tensions, Malaysia and Singapore decided to go their own separate ways, and Singapore became an independent sovereign republic on 9 August 1965. A month later, Singapore was admitted to the United Nations as a Member State in its own right. This constitutional devolution from Malaysia was achieved peacefully, and with the agreement of the Malaysian federal government, with which it retains close and cordial relations, both bilaterally and in the context of the regional grouping, the Association of South East Asian Nations (ASEAN).

3. Situated only about 137 km from the equator, Singapore is in the equatorial

rain forest climatic zone, and enjoys constant tropical climate conditions the year

Property and Trust Law (February 2000)

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46

General Introduction, General Background

round, with high levels of rainfall (2,300 mm annually) and average daily temperature varying little from 26˚C: the daily variation between 24˚C and 31˚C is greater than the annual variation.

II. Cultural Composition

4. Singapore is an atypical Asian country on many counts: its tiny size, its

population density, its wholly urban environment, its high level of economic and

social development, but most of all, the diversity of its peoples, races, cultures and religions. The great majority of its inhabitants are descendants of immigrants from other Asian lands who came to Singapore during British colonial rule. The result is a country which is ethnically and culturally very diverse. About 77 per cent of the population is of Chinese descent, 14 per cent of Malay or Indonesian descent,

7 per cent of Indian descent and the remaining 2 per cent of other ethnic groups.

Most of the ethnic groups in Singapore retain to a large degree their cultural heritage (including their native languages), helped by the government policy of encouraging Singaporeans to retain their cultural roots and languages.

5. The country has four national languages: Mandarin (Chinese), Malay, Tamil

and English. The language of law, government and public life is English. The literacy rate for men is about 96 per cent, and about 87 per cent for women. All school children receive their education primarily in English, but are also required to study their mother tongue under the long-standing government policy of bilin- gualism. Given the degree of cultural and ethnic diversity, it is not surprising that

there is also a high degree of diversity in the religions practised by its inhabitants:

more than half (54 per cent) of Singaporeans subscribe to either Buddhism or Taoism (or both), 15 per cent are of the Islamic faith, 13 per cent are Christians,

3 per cent are Hindus, with about 0.5 per cent being adherents of other faiths such

as Judaism. A signicant proportion of the population (14.5 per cent) profess to having no religion at all. This diversity of the population is signicant from the perspective of the formulation of many policies and laws, as laws have to accom- modate the beliefs and values of diverse cultures and religions.

III. Political System

6. In common with many members of the British Commonwealth of Nations

(now simply the Commonwealth) which achieved independence from Britain between the 1950s to the 1970s, Singapore inherited a written Constitution of the Westminstermodel, which establishes the structure of government and legal authority, and of the organs of state. It provides for the division of the organs of state into the President and Parliament, the Executive and the Judiciary. This writ- ten Constitution is the supreme law of the Republic of Singapore, and further provides that any inconsistent law enacted by the legislature after the coming into force of the Constitution should be void to the extent of the inconsistency.

16 Singapore

Property and Trust Law (February 2000)

Legal Background of the Country, General Introduction

711

7. In general, the constitutional framework ordained by the Constitution bears

many points of resemblance to its unwritten British model, with a democratic system of government centred about the free election through universal adult suf- frage of members to an unicameral Parliament which is the sole legislature. Follow- ing a constitutional amendment in 1991, the ofce of the elected President (who is the Head of State) was introduced, so that Singapore citizens now vote for their members of Parliament and for the President in separate elections.

8. The assent of the elected President is required for the passage of certain

measures by Parliament, but otherwise the legislative powers and functions of the state is largely in the hands of Parliament. As in the British model, the Executive branch comprises the Prime Minister and his Cabinet. By the terms of the Consti- tution, the President is to appoint as Prime Minister a Member of Parliament who in his judgement is likely to command the condence of the majority of the Mem- bers of Parliament. The members of the Prime Ministers Cabinet are then ap- pointed by the President acting in accordance with the advice of the Prime Minister.

9. The life of each Parliament is for a maximum of ve years, after which fresh

general elections must be held to elect a new Parliament. Since independence, the Peoples Action Party have been re-elected to power in every general election. The rst (and current) elected President, Mr. Ong Teng Cheong, was elected in 1993. Under the Constitution, all judicial power is vested in the Supreme Court and in such subordinate courts as may be provided by law.

§2. Legal Background of the Country

I. Constitutional Framework

10. The legal background of Singapore is unusually complex because of Singa-

pores somewhat complex legal history during the colonial era. At various times,

it has been governed from the Colonial Ofce in British India, and has been a part

of the Straits Settlements (which linked various British possessions along the Straits

of Malacca), Japanese occupied territory, British Military Administration territory,

a British Crown Colony, a self-governing British dependency, a component state of

the Federation of Malaysia, and nally a sovereign and independent republic. The Constitution itself is derived from the old pre-independence State constitution, the Federal Constitution of Malaysia and other constitutional documents, and was not issued in its current single-document form until 1979.

11. Except for the Japanese Occupation during World War II, every phase of

Singapores legal history has left its mark on the countrys legal inheritance and contributed to its sources of laws. The Constitution recognizes as valid laws not only those laws enacted by the Singapore Parliament, but also any legislation of the United Kingdom or other enactment or instrument whatsoever which is in opera- tion in Singapore and the common law in so far as it is in operation in Singapore and any custom or usage having the force of law in Singapore. Consequently,

Property and Trust Law (February 2000)

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1215

General Introduction, Legal Background of the Country

unlike in civil law countries, the source of law is not restricted primarily to the acts of the national legislature but encompasses a wide range of other sources of law, which are now discussed below.

II. Parliament and Legislative Process

12. Currently, the primary body of written law in Singapore comprises the Acts

of Parliament and the enactments, instruments, ordinances or other written law which were part of the formal body of colonial laws at the time of independence. All federal laws of the Federation of Malaysia which were in force at the time of

Singapores separation from Malaysia in 1965 continue to apply, unless of course repealed.

13. Most regulatory Acts and other written laws vest the relevant Minister in

charge with the power to make rules relating to the objects of the Act or other written law in question without the rules having to be approved directly by Parlia- ment. Although these rules (known as subsidiary legislation) are formulated and laid down by the Executive branch of the government, they nonetheless have the status of written law under the Constitution as they are issued under the general authority of Parliament in the governing Act or other written law. These rules may also be changed or revoked without the consent of Parliament.

14. A large number of the current Acts of Parliament are statutory instruments

(enactments, ordinances, instruments and the like) which were enacted by the co- lonial government before independence, and these continue in force as law unless they are repealed by Parliament. Few of them have been. One hallmark of the constitutional and legal system in Singapore has been its remarkable pragmatism, continuity and stability Singapore has in its current body of written law statutory instruments from every phase of its history except the Proclamations and Decrees issued by the Japanese Occupation Forces during World War II.

15. Apart from written laws made in or for Singapore, the Constitution also

refers to legislation of the United Kingdom

as also forming part of the body of the written law of Singapore. Prior to 1993, there was some difculty in determining exactly what British legislation was cov- ered under this provision. Firstly, English law statutes in force in England as at 1826 became part of the law of Singapore by virtue of the Second Charter of Justice which was issued in that year. In consequence, Singapore today retains some statutory provisions which have long since vanished in England. Secondly, by virtue of the Civil Law Act in its pre-1993 amendment form, it was provided that English law statutes relating to certain specied areas of law (notably banking, commercial and mercantile law) should have application to Singapore. The laws which were to be applicable were not specied by name, resulting in some un- certainty as to whether a given English statute applied in Singapore or not. In 1993, matters were considerably cleared up by the enactment of the Application of English Law Act 1993, which specied the English statutes having application in

which is in operation in Singapore

18 Singapore

Property and Trust Law (February 2000)

Legal Background of the Country, General Introduction

1620

Singapore, as well as the necessary consequential amendments for their adoption to the local context. 1

1. Cap. 7A 1994 Rev Ed.

16. Since the enactment of the Application of English Law Act in 1993 hardly

any English statutes are applicable. Nonetheless, the continued (and continuing)

reception of English law has had a signicance inuence on the shape of the development of the common law, which continues to be a primary source of prop- erty law in Singapore.

III. Common Law and Judicial Process

17. Like most other member nations of the Commonwealth, Singapore has a

common law legal system like its English parent and model. By this is meant that the courts not only apply written laws in deciding a case, but also the huge body of judicial precedents (previous decisions by courts in Singapore, England and other applicable jurisdictions) that constitute the body of the common law. In the common law tradition, legislation enacted by Parliament only provide for a general framework: the constitutional assumption is that it is for the courts to esh out this general framework into a more detailed one with each precedent that they set and add to the body of the common law.

18. Some very important and large areas of Singapore law lie almost entirely

in the realm of common law, in that there is little or almost no governing legisla- tion. Instead, the common law is the only law in such areas examples of such areas of law include the entire elds of contract law and tort law. Traditionally, in the absence of a local precedent on a given point of common law, the Singapore courts have looked to English common law: this approach had its basis not only in judicial custom, but also as a result of express provisions under the pre-1993 Civil Law Act and also by virtue of the 1826 Second Charter of Justice, both of which effectively provided that English common law was to be applied in Singapore as it was in England at the relevant time.

19. The position may now be different with the passage in 1993 of the Appli-

cation of English Law Act, which has a consolidating effect on the application and reception of English law in Singapore. Firstly, the Act provides (in Section 3(1))

that the common law of England

immediately before 12th November 1993, shall continue to be part of the law of Singapore. However, the Act goes on (in Section 3(2)) to specify that after that date, English common law shall continue to be in force in Singapore so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modications as those circumstances may require.

so far as it was part of the law of Singapore

20. The net result of these provisions is that the Singapore courts are now

expressly authorized to reject English common law precedents if they think that the

Property and Trust Law (February 2000)

Singapore 19

2124

General Introduction, Legal Background of the Country

English doctrines would be inappropriate for Singapore. In recent years, the Sin- gapore courts have signalled a willingness to consider Canadian or Australian precedents instead of English ones. A recent signicant example in the eld of tort occurred when the highest court in Singapore, the Court of Appeal, expressly declined to follow English approach to the awarding of damages for defects in property causing pure economic loss in the case of RSP Architects Planners & Engineers v. Ocean Front Pte. Ltd. [1996] 1 SLR 113. Instead, the court drew on precedents established in Australia, New Zealand and Canada for its decision.

21. Under Article 93 of the Constitution, all judicial power in Singapore is

vested in the Supreme Court and in such subordinate courts as may be provided for by law. There are basically two levels to the national court system. At the higher level is the Supreme Court, which consists of the High Court, and the Court of Appeal. The High Court has original jurisdiction (it is a court of rst instance) as well as appellate jurisdiction (it hears appeals from the Subordinate Courts) in both civil and criminal matters. The Court of Appeal hears appeals in both civil and criminal matters from the High Court, and is the highest court of appeal in the country. The High Court and the Court of Appeal have unlimited competence and jurisdiction. The High Court also exercises general supervisory and revisionary jurisdiction and powers over the Subordinate Courts.

22. The Subordinate Courts consists of the District Courts, Magistrate Courts,

Juvenile Courts, CoronersCourts and Small Claims Tribunals. In civil matters, the District Courts are limited to hearing claims for sums not exceeding S$100,000 (about US$65,000), and the Magistrate Courts to claims not exceeding S$30,000 (about US$19,500), unless the parties to the action agree otherwise. Until recently, the highest court of appeal for civil matters was the Privy Council in England this route of appeal was repealed by the Judicial Committee (Repeal) Act 1994, leaving the Singapore Court of Appeal as the nal court of appeal in Singapore.

IV. Executive Powers and Administrative Law

23. In the Westminster constitutional model, the Executive power of the state

lies in the hands of the Prime Minister and his Cabinet. Ministers of the Cabinet are given charge of various ministries whose jurisdiction is delimited not by the legislation but by the Executive. The role of the Executive branch in the day-to-day regulation and supervision in Singapore is signicantly enhanced by the legislative practice of generally including in each Act of Parliament an empowering clause giving the relevant Minister the power to make rules and regulations for the achieve- ment of the objects of the Act of Parliament in question.

24. These powers to frame rules and regulations are generally granted in broad

terms, and the rules and regulations are known as subsidiary regulations and have the same force of law as the parent Act (known as the primary legislation). The enabling Acts generally provide for the subsidiary legislation to take effect simply by being gazetted or published in the required statutory form by the Minister. Such

20 Singapore

Property and Trust Law (February 2000)

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subsidiary legislation generally esh out the regulatory framework or machinery broadly spelt out in the parent Acts.

§3. Introduction to the Law of Property and Trust 1

I. Historical Origins and Evolution

25. Singapore having been a colony of Great Britain from 1824 to 1959 is a

common law country. The reception of English law is attributed to the Letters Patent issued on 27 November 1826 more commonly known as the Second Charter of Justice 1826. This established a system of courts in the then Straits Settlements of Penang, Singapore and Malacca with jurisdiction to hear and determine civil and criminal cases similar to that possessed by the English courts and to give and pass judgement according to justice and rightin civil cases. This has been interpreted 2

to mean that the law of England (common law and statutes) and equity as they stood on 27 November 1826 were part of the law of Singapore. The English law that was received was subject to modication by local legislation and custom. 3 The reception of pre-1826 English law accounts for the land law in Singapore being based on the doctrines of estate and tenure.

1. For a fuller account of the reception of English law into Singapore see H. Chan, The Legal System of Singapore, 1995; G.W. Bartholomew, Introduction in Tables of the Written law of the Republic of: 1819–1971 Volume 1-Local Legislation Singapore. E. Srinivasagam (ed.) Law library University of Singapore, 1972.

2. Regina v. Willans (1858) 3 Ky. 16.

3. Yeap Cheng Neo and Ong Cheng Neo (1875) LR 6 PC 381.

26. Although it was established that the Second Charter of Justice only brought

in pre-1826 English common law, statutes and equity nevertheless in practice post- 1826 English statutes continued to be applied in commercial matters because the local judges and lawyers were English trained. This was regularized by Section 6 Civil Law Ordinance 1878 which became Section 5 Civil Law Act. 1 This provision directed the courts to apply the current English law in all mercantile issues unless there was local legislation on the matter. The section expressly excluded the appli- cation of English law relating to the tenure or conveyance or succession to any immovable property or any estate or interest therein. In addition to Section 5 Civil law Act sections incorporating current English law appeared in certain local statutes, e.g., Section 101(2) Bills of Exchange Act. 2 Thus while in regard to commercial law which concerns personal property post-1826 English statutes were part of Singapore law, in regard to land this was not the case. No post-1826 English statute relating to land applied in Singapore. This was the position until the enact- ment of the Application of English Law Act in 1993.

1. Cap. 43 1988 Rev Ed. before the enactment of the Application of English law Act 1993.

2. Cap. 23 1985 Rev Ed.

27. The Application of English Law Act removed the uncertainty surrounding

the question as to what English statute was still applicable. This was a particularly

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vexing issue in regard to commercial law. 1 In land law the irritation was having old archaic English statutes as part of the law when in England the statutory provisions had been modernized. 2 The Application of English Law Act addressed these prob- lems by:

(i)

repealing Section 5 Civil Law Act and stating clearly that no English statute was applicable except as provided in the Act itself,

(ii)

providing for the continued reception of English common law and equity as it stood on 12 November 1993,

(iii)

providing a list of English statutes that still form part of Singapore law, 3

(iv)

stating the extent of their applicability and

(v)

incorporating modernized versions of old English statutes that were applica- ble into existing local statutes. 4

But although the Application of English Law Act has ended the automatic reception of English commercial statutes yet Singapore commercial law is very much based on English law since many of the local legislation are drawn from their English counterparts and in any event some of the English statutes formed part of Singapore law under the Application of English Law Act itself until they were re-enacted, 5 with some modications, as local legislation. These factors combined with the continued reception of English common law and equity have the consequence that in commercial matters Singapore law generally reects English law.

1. Much has been written on this subject e.g. G.W. Bartholomew, The Singapore Statute Book(1984) 26 Mal LR 1, Chan Sek Keong, The Civil Law Ordinance Section 5(1): A Re-appraisal[1961] MLJ lvii; Soon and Phang, Reception of English Commercial Law in Singapore A Century of Uncertaintyin The Common Law in Singapore and Malaysia, ed. Harding at pp.

3470; Phang, Thereotocal Conundrums and Practical Solutions in Singapore Commercial Law:

A Review and Application of Section 5 of the Civil Law Act (1988) 17 Anglo-Am L R 251.

2. E.g. the provisions of the Statute of Frauds were incorporated into the Law of Property Act 1925 England which was not applicable in Singapore.

3. These concern commercial law, e.g. Unfair Contract Terms Act 1977, Misrepresentation Act 1967, Sale of Goods Act 1979, Partnership Act 1890, Carriage of Goods by Sea Act 1992. Some

of these have been re-enacted as Singapore Acts, e.g. Sale of Goods Act Cap. 393 1994 Rev

Ed., Partnership Act Cap. 391 1994 Rev Ed.

4. Section 6bB Civil law Act Cap. 43 1994 Rev Ed. replaces Sections 7, 8, and 9 Statute of Frauds

1677.

5. E.g. Partnership Act Singapore Statutes Cap. 391 1994 Rev Ed., Unfair Contract Terms Act Cap. 396 1994 Rev Ed., Misrepresentation Act Singapore Statutes Cap. 390 1994 Rev Ed., Sale

of Goods Act Cap. 393 1994 Rev Ed.

28. The continuous reception of English principles of equity from 1826 caused

the whole body of trusts law and equitable remedies to be part of Singapore law. However as apart from commercial law English legislation enacted after 1826 did not apply, English statutes such as the Trustees Act 1925 and the Trustees Invest- ments Act 1961, Charities Act 1960 are not applicable in Singapore. There are local statutes which in the main follow the English counterparts covering these topics. 1

1. Trustees Act Cap. 337 Rev Ed., Charities Act Cap. 37 1985 Rev Ed.

29. Thus in regard to both immovable and movable property English law and

equity form the basis of the law in Singapore. Generally the local statutes follow

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counterparts in England, e.g., the Sale of Goods Act 1 and the Conveyancing and Law of Property Act. 2 There is however one main exception in regard to land. Instead of following the English system of land registration, Singapore adopted the Torrens system which originated in New South Wales Australia. This is the Land Titles Act 3 and its sister Act the Land Titles (Strata) Act. 4 On this account case law from other jurisdictions which also have the Torrens system of land registration are of persuasive authority.

1. Cap. 393 1994 Rev Ed.

2. Cap. 61 1994 Rev Ed.

3. Cap. 157 1994 Rev Ed.

4. Cap. 158 1988 Rev Ed.

30. To sum up, the law in Singapore with regard to land and personal property

is based on English common law and equity. Certain English statutes were part of the law of Singapore and after the enactment of the Application of English Law Act in 1993 those English statutes which are listed in the Second Schedule of the Act remain on our statute book, others have been incorporated into relevant local statutes.

II. Concept of Ownership

A. Unity and Fragmentation

31. Ownership is the term for rights which the law recognizes in the person

who is called the owner of the object. The law protects the rights of the owner of the object, e.g., a car in regard to his rights of possession and exclusive user. The

content of rights that make up ownership varies with whether the object owned is movable property or land. In regard to chattels there is absolute ownership.

32. In regard to land the object of rights is not directly the land itself but as

estate in the land. This is feudal concept which is at the very root of land law. An individual owns an estate in fee simple, or an estate in perpetuity or a leasehold. The law protects with its trespassory rules the rights of the owner of these different

periods of time in the land. All land belongs to the State which alienates parcels to individuals either in perpetuity under the State lands Act or by way of leases under the State Lands Act. Fee simple estates which were granted before 1902 still remain. 1

1. See below Part I Chapter 1 General Classication.

33. Thus there are three types of estates in land in Singapore, viz., the fee simple

estate, the estate in perpetuity and the leasehold. The rights of the owners of these estates vary. For example, the fee simple estate is not affected by the conditions and covenants set out in the State Lands Act 1 as are the estate in perpetuity and the State lease. Nevertheless the owners of all these types of estates would have rights of (i) exclusive possession, (ii) transfer inter vivos and (iii) transmissibility on death. The content of ownership rights also depends on whether the property are

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General Introduction, Introduction to the Law

leaseholds of Housing and Development property 2 or come under the special schemes. 3

1. Cap. 314 1985 Rev Ed.

2. Housing and Development Act Cap. 129 1997 Rev Ed. and see below Part I Chapter 8 Public Housing.

3. Executive Condominium Housing Scheme Act 10 of 1996. See below Part I Chapter 8 Public Housing.

34. Because of the doctrine of estates in land, interests in land may be alienated

as interests in possession or as future interests. Thus assuming that A has a fee simple interest in Blackacre, A may grant a life interest to B with remainder to C absolutely. In law, the fee simple being the largest estate in land lesser estates such as the life estate may be carved out of it.

35. The divisibility of ownership of property into present and future ownership

depends on the nature of the property, i.e., real or personal and on whether the context is common law or equity. At common law the concept of estates is not applicable to personalty (which would include the leasehold), hence at law no future interests can be created out of personalty. But in Equity, using the trust, future interests may be created in all forms of property. Thus in Singapore with the doubt as to whether real property exists and with the prevalence of grants in perpetuity and leases, future interests in immovable as well as movable property are

created under trusts. 1

1. See above.

36. The restriction on the capability to create future interests lies in the rule

against perpetuities which was held to be part of the law in Singapore in Choa Choon Neo v. Spottiswode. 1 Thus in regard to the vesting of an interest in any property the rule requires that the interest must vest if it vests at all within the perpetuity period of a life or lives in being plus 21 years and a period of gestation if any. 2 The rule against perpetuities has two other aspects, viz., the rule against perpetual trusts and the rule against accumulations. All three aspects of the rule use the same measurement for the perpetuity period. The rule against perpetual trusts requires that all trusts must not last for a period longer than the perpetuity period. Thus a trust of an estate in perpetuity in Blackacre to be used for the worship of my ancestors will be bad unless it is restricted to the perpetuity period. Similarly where a settlor has instructed his trustees to accumulate income from capital and to pay the accumulated income and capital to beneciaries the accumulation must not exceed the permitted period. While the rule against perpetuities has been re- tained in England as in most of the common law countries, it has been modernized and placed in legislative form with some of the anomalies removed. 3 However in Singapore there has been no modernization of the rule by statute except for the companion rule against accumulations. 4

1. (1868) 1 Ky 216, afrmed by the Privy Council in Ong Cheng Neo v. Yap Cheng Neo (1872) 1 Ky 326.

2. Cadell v. Palmer (1833) 1 Cl & Fin 372.

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3. E.g. the Perpetuities and Accumulations Act 1964 in England which inter alia allows for an alternative xed period of 80 years and for the wait and see approach to vesting.

4. Section 69A Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.

B. Immovable and Real Property

37. The traditional common law classication of property is real and personal.

By the Second Charter of Justice 1826 the doctrine of estates in land, the division of property into real and personal, were received into Singapore. Thus as stated above, ownership of land is more accurately described as ownership of estates in land. While estates in fee simple historically form part of realty, because of a quirk of English legal history leasehold interests in land are personal property rather than real property. 1

1. See above Historical Origins and Evolution.

38. However Section 35(1) Conveyancing and Law of Property Act 1 which

deems all land as chattels real for the purposes of devolution to the personal representatives and which replaces heirs with personal representatives, altered the devolution of real property on the death of the person. Henceforth all property real or personal devolved on the personal representatives of the deceased and were ultimately distributed by the personal representatives either according to the will of the deceased or according to the laws of intestate succession. At this point the practice developed of interests in land being treated similarly as personal property and accordingly were given to the next of kin of the deceased rather than the heir. This practice was upheld by the courts 2 and eventually in 1970 the Intestate Suc- cession Act, endorsed decades of practice. 3 Thus the concept of heirs was relegated to history. The fundamental differences between real and personal property are thus obliterated.

1. Cap. 61 1994 Rev Ed. This provision superseded Section 1 Indian Act 20 of 1837.

2. Syed Ali bin M Alsagoff v. Syed Omar bin M Alsagoff (1918) SSLR 103.

3. Sections 5 & 7 Intestate Succession Act Cap. 146 1985 Rev Ed. repealed the Statutes of Distribution and set out the classes of persons who are entitled to the estate movable and immovable of the deceased intestate.

39. Consequent to the removal of the concept of heirs there is doubt as to

whether real property exists in Singapore. 1 In any event as is discussed below most of the land in Singapore is held by individuals under leaseholds or the estate in perpetuity which is a creation of the State Lands Act and not a common law freehold estate like the fee simple. 2 For all these reasons and, notwithstanding that the term real property is still commonly used when referring to interests in land, the more useful classication of property is that of movable and immovable property. 3

1. See Braddell, Heirs and the Common Law(1941) MLJ xxxvixlv.

2. See Part I Immovable and Real Property Chapter 1 General Classication.

3. See below.

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General Introduction, Introduction to the Law

40. By common law and by statute land and all things permanently attached to

land are classied as immovable property. 1 All interests in land, including lease- holds, are immovable property while all other forms of property, chattels, choses

in action, and intellectual property fall into the category of movables.

1. E.g. Section 2 Interpretation Act Cap. 1 1984 Rev Ed., Section 4 Land Titles Act Cap. 157 1994 Rev Ed.

C. Movable and Personal Property

41. In general, the common law draws a distinction between real and personal

property, not between movable and immovable property. One exception lies in the conict of laws, where the distinction is made in an attempt to achieve greater harmony with the property rules of civilian jurisdictions. Consequently, our courts apply a different choice of law rule to immovable and movable property. However, in its determination of whether property situated in Singapore is an immovable or movable, the court will utilize its own notions of ownership, such as the equitable doctrine of conversion. Consequently, land over which there is an enforceable agreement to sell is considered money and hence movable property, even prior to completion of the sale, as equity deems done that which ought to be done. 1

1. MTT ARSAR Meyammai Achi v. Valliammai (OS 659/1992, S/C 2137/94, 23 March 1995), cf. TM Yeo [1997] SJICL 560.

42. Our statutes also refer to immovable and movable property, the denition

of which is provided in the Section 2(1) of the Interpretation Act. 1 Immovable propertyincludes land, benets to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Movable propertymeans property of every description except immovable property. These denitions reect the residual character of movable property. These denitions do not, how- ever, apply where there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided.In the MTT case above, for example, the High Court of Singapore did not refer to the deni- tions in the Interpretation Act when examining the provisions of the Intestate Suc- cession Act, 2 Section 4 of which states that disposal of movable property is governed by the lex domicilii and immovable property by the lex situs.

1. Cap. 1 1985 Rev Ed.

2. Cap. 251 1985 Rev Ed.

43. Again, there are statutes which contain their own denitions of movable

property. For example, Section 22 of the Penal Code 1 provides that The words movable propertyare intended to include corporeal property of every description, except land and things attached to the earth, or permanently fastened to anything which is attached to the earth.In these instances, movable property loses its residual status. Given such a restrictive denition, the criminal laws of Singapore do not, in general, cover dealings with choses in action. There can, for example, be no theft of a bank account even where value has been abstracted from the

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4447

account by a direct withdrawal, and a fortiori where there is only an electronic funds transfer. 2 Partly for this reason, jurisdictions like the UK, NZ and India have introduced specic legislation to cover intangible property like electricity. 3

1. Cap. 224. 1985 Rev Ed.

2. See R v. Preddy [1996] 3 WLR 255 (HL), where a direct withdrawal would otherwise have been caught by the UK legislation.

3. Section 13 UK Theft Act 1968; Section 218 NZ Crimes Act 1961; Section 39 Indian Electricity Act 1910. There is no equivalent provision in Singapore.

44. Personal Property can be divided into chattels personal and chattels real.

The latter are leasehold interests in land. Chattels personal divide into choses in possession and choses in action. 1

1. Colonial Bank v. Whinney (1885) 30 Ch D 261. See Part II below.

III. Trust and Fiduciary Mechanisms

A. Trusts and Equitable Interests

45. Equity evolved a highly developed form of conscience through its doctrine

of notice and thus elevated the right of a beneciary under a trust from a mere personal right to a proprietary interest. The equitable interest exists in all forms of property immovable and movable, real and personal. It is good against the whole world except for the bona de purchaser without notice, 1 while the legal interest is enforceable against the whole world. 2

1. The equitable doctrine of notice refers to actual notice, imputed notice and constructive notice, Hunt v. Luck [1902] 1 Ch 428. It has been enacted in Section 70 Conveyancing and Law of property Act Cap. 61 1994 Rev Ed.

2. This is reected in the maxim nemo dat quod non habet. However in regard to legal interests in land the order of priorities has been affected by the registration systems. See below Part I Chapter 3.

46. English principles of equity together with equitable interests in land were

received into the law of Singapore by the Second Charter of Justice 1826. Fusion of the administration of law and equity was effected by Section 3 Civil law Enactment 1878. 1 Section 3 Application of English law Act continues the reception up to the cut off date of 11 November 1993. Thus title to all property may be held in law or in equity and common law and equitable remedies are available in the Courts. 2

1. Now Sections 3 & 4 Civil Law Act Cap. 43 1994 Rev Ed.

2. Sections 3 & 4 Civil Law Act.

47. In Singapore ownership of property may be divided into legal and equita-

ble. Equity follows the law. Thus the equitable estate in land may be in fee simple or in perpetuity or a it may be a lease. The split of ownership into legal and equitable ownership in different persons may be voluntary and expressed, e.g., an express trust. For example, S the owner of the legal fee simple estate may transfer it to T in trust for B for life remainder to C in fee simple. T is the trustee having

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General Introduction, Introduction to the Law

the legal fee simple. B and C have the benecial interest, B taking a life interest and C taking the fee simple on Bs death.

48. The split into legal and equitable ownership may also occur by operation of

the rules of equity, e.g., the purchasers interest and the vendors lien in a contract

for the sale of land. In a contract for the sale of land where the remedy of specic performance is available the purchaser is regarded as the equitable owner. The legal

title is with the vendor so that he is called a constructive trustee. To ensure that he

is paid the full purchase price equity imposes in his favour the vendors lien. Unless

the ownership is split the legal interest carries with it the equitable interest but the equitable interest cannot exist on its own independent of the legal interest.

49. Once the equitable interest is in existence it may be disposed of inter vivos

or by will, e.g., transferred by way of gift or sale, mortgaged or charged. The

difference in the manner of disposal in inter vivos dealings lies in the formalities.

A disposition of an equitable interest requires only writing. 1 A trust may also be

created out of an equitable interest; the trustee would have the equitable title and the beneciary the benecial interest.

1. Section 6B Civil Law Act.

50. The remedies of the owner of an equitable interest are the injunction,

tracing and also the erstwhile common law remedy of damages. 1 For example, if

T

the trustee of property were to transfer it to X by way of a gift in breach of trust,

B

the beneciary would have several remedies at his disposal. He may sue T in a

personal action for breach of trust. He may also trace his property to X and recover

it from X through the constructive trust. Should X no longer have the property B

may sue him in a personal remedy and recover from him the equivalent value of

his property in compensation. 2

1. Section 18(2) Supreme Court of Judicature Act Reprint Singapore Statutes Cap. 322 Rev Ed.

2. Nocton v. Lord Ashburton (1918) AC 932; Ohm Pacic v. Ng Hwee Cheng [1994] 2 SLR 576 at pp. 5856.

51. A trustee of an express trust has all the duties and powers given to him in

the trust deed. But all trustees must not prot from his position of trustee. Where

he

does so the beneciary may sue him for the prots. 1 He must not place himself

in

a position where his duties as a trustee may possibly conict with his own

personal interest 2 or where he is a trustee of two trusts his duties to each of the trust

must not conict.

1. Sumitumo Bank v. Kartika Ratna Thahir [1993] 1 SLR 735; AG for Hong Kong v. Reid [1993] AC 713.

2. Keech v. Sandford (1726) 25 ER 223; Phibbs v. Boardman [1967] 2 AC 46; Hytech Builders v. Tan Eng Leong [1995] 2 SLR 795.

B. Fiduciaries

52. The trustee is the model for equity pinning liability on other persons who

are entrusted with or who have undertaken the obligation of looking after anothers

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interest. These persons are called duciaries. While the term of duciary still awaits unambiguous denition it is accepted that a duciary is a person who has under- taken an obligation to look after anothers interest and who wields inuence over the other. As of now certain positions automatically attract the label of duciary. Common examples are the director of a company, an agent, partners in a partner- ship. It would seem that the mantle of a duciary would be dropped on a person where the courts feel that a person in such a position should owe the other person a duty on account of the obligation undertaken. Once a person is called a duciary he is under a duty not to prot from his position and he should not place himself in a position of conict. 1

1. See ftntes vii, viii & ix above.

IV. Possession and Title

53. The common law protects possession and the right to possess. The locus

classicus is Amory v. Delamirie. 1 As common law was received into Singapore this

is also the law in Singapore.

1. (1722) 1 Strata 505, 93 ER 664.

54. Prior to amendment in 1993, Section 9 Limitation Act 1 provided that twelve

years occupation of land of another nec vi, nec clam, nec precario barred the right of the owner of the land from any action to recover his land. 2 Moreover under

Section 18 Limitation Act the owners title to that land was statutorily extin- guished. The adverse possessor then became the owner of the land by virtue of his adverse possession. Thus in Singapore the link between possession and the right to possession and title to land was very clear.

1. Cap. 163 1985 Rev Ed.

2. Soon Peng Yam v. Maimon binte Ahmad [1996] 2 SLR 609; Jubilee Electronics Pte. Ltd. v. Tai Wah Garments & Knitting Factory Pte. Ltd. [1996] 2 SLR 39.

55. However with effect from the enactment of the Land Titles Act 1993 1 apart

from transitional provisions it is not possible for land to be acquired by adverse possession any more. 2 Title to land can only be acquired under one of the consen- sual methods by conveyance from one owner to another.

1. 15 March 1994.

2. Section 177 Land Titles Act 1993 amended Section 9 Limitation Act by the addition of subsec- tion (3) which provided that the section shall not apply to an action to recover land from a person by reason only of his authorized occupation of the land. The transitional provisions permitted claims to adverse possession to be made at most within 6 months of the commence- ment of the Land Titles Act 1993. This Act commenced on 15 March 1994. However, the Act did not affect land which was already in adverse possession for 12 years prior to the coming into force of the Act. See Bhalwant Singh v. Double L & T Pte. Ltd. [1996] 2 SLR 726; Tan Siok Gek v. Ng Kim Neo [1997] 2 SLR 691.

56. But in an action to evict a trespasser from land the plaintiff still has to

prove that he has possession or the right to possess. In short the law still protects

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General Introduction, Introduction to the Law

ownership by protecting possession. The amendment to Section 9 Limitation Act simply means that true owner can always sue the trespasser no matter how long the trespasser has been in possession.

57. The law relating to chattels remains as at common law.

30 Singapore

Property and Trust Law (February 2000)

Selected Bibliography

G.W. Bartholomew, Introduction in Tables of the Written Law of the Republic of Singapore: 18191981 Volume 1 Local Legislation Singapore. A.P. Bell, Modern Law of Personal Property in England and Ireland (1989).

M.

Bridge, Personal Property Law (2nd ed, 1996).

H.

Chan, The Legal System of Singapore (1995).

R.G. Hammond, Personal Property Commentary and Materials (1992). R.M. Goode, Legal Problems of Credit and Security (1988). F. Oditah, Legal Aspects of Receivables Financing (1991). W.J.M. Ricquier, Land Law (2nd ed, 1995). S.Y. Tan, Principles of Singapore Land Law (1994). S.Y. Tan, Private Ownership of Public Housing in Singapore (1988).

Property and Trust Law (February 2000)

Singapore 31

Selected Bibliography

32 Singapore

Property and Trust Law (February 2000)

58–60

Part I. Immovable Property and Real Property

Chapter 1. General Classification

§1. Classification

58. Although it is accepted that property comprises rights, what is owned are

rights over objects, yet generally the term property has come to be associated with the objects themselves. Thus in this sense traditionally property may be classified

in different ways: movable and immovable, tangible and intangible, corporeal and incorporeal.

59. The feudal concept of estates in land together with the doctrine of tenure

came to Singapore via the English common law. Property is thus also classified into real and personal property. Freehold estates in land are real property. But the leasehold estate is a chattel real and is personal property.

60. Since 1837, land, regardless of whether it is freehold (real property) or

leasehold (chattels real), for the purposes of devolution and transmission has de- volved to the deceased personal representatives where it is available, together with the personal property of the deceased, for the payment of the deceased’s debts. 1 After the payment of debts the practice developed whereby the personal representa- tives then distributed the estate regardless of whether it consisted of real or personal property to the deceased’s next of kin. 2 This has since been incorporated into Section 5 Intestate Succession Act. 3 Thus the concept of the heir is irrelevant in Singapore. Hence there is a doubt as to whether real property still exists in Singa- pore. 4 The debate is more of an academic one since the modern preference in legislation is to refer to land simply as such, e.g., the Land Titles Act or as immov- able property rather than to use the archaic term real property, e.g., the Intestate Succession Act.

1. Currently the provision is Section 35(1) Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.

2. Syed Ali bin Alsagoff v. Syed Omar bin Alsagoff (1918) SSLR 103.

3. Cap. 146 1985 Rev Ed.

4. Braddell, ‘Heirs and the Common Law’ (1941) MLJ xxxvi–xlv.

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§2. Land and Fixtures

Part I, Ch. 1, General Classication

61. Land bears the meaning as at common law unless a particular statute de-

nes it for that statute. Thus land is understood as covering the surface of the earth

together with the trees, buildings, minerals and airspace above it. 1 Section 6 Con- veyancing and Law of Property Act adopts the common law denition in that it provides that a conveyance of land is deemed to include buildings, erections,

xtures, hedges, ditches,

ning land also includes the structures afxed thereto. The only exception to this is traditional Malay houses on stilts which by custom are regarded as chattels. 3 The denition of land in Section 4 Land Titles Act includes airspace or subterranean space held apart from the surface of the earth delineated and described with cer- tainty. This makes it possible for such delineated air spaces or subterranean spaces to be owned under the Land Titles (Strata) Act. 4

.Likewise Section 4 Land Titles Act 2 in de-

1. Section 3 Application of English Law Act. Kim Beng Lee Pte. Ltd. v. Kosion Enterprise (S) Pte. Ltd. [1994] 1 SLR 700 where Selvam JC held that a Mass Rapid Transport viaduct over land would intrude on the ownership of the said land.

2. Cap. 157 1994 Rev Ed.

3. Kiah binte Hanapiah v. Som [1953] MLJ 82; Chua Sai Ngoh v. Beh Ai Meng [1955] MLJ 167 cf. Kwek Kim Hock v. Ong Boon Siong [1954] MlJ 253; and Khew Ah Bah v. Hong Ah Mye [1971] MLJ 86.

4. Cap. 158 1988 Rev Ed.

62. The maxim quid quid plantatur solo, solo cedit applies thus chattels xed

permanently to land or to a building on land as part of the land become xtures and so part of the land. 1 People’s Park Chinatown Development Pte. Ltd. v. Schindler Lifts (S) Pte. Ltd. 2 is the latest Court of Appeal decision which applied Holland v. Hodgson. 3 Taking into consideration the manner and degree of annexation as well as the purpose of annexation the Court of Appeal held that escalators which were resting on their own weight in specially created places in the building were xtures.

1. Van Santen v. Lim Jee Jing (1903) SSLR 3; Goh Chong Hin v. The Consolidated Malay Rubber Estates Ltd. (1926) 6 FMSLR 86, Gebreuder Buehler AG v. Peter Chi [1988] 3 MLJ 69.

2. [1993] 1 SLR 591.

3. (1872) LR 7 CP 328.

§3. State Lands

I. State Grants and State Leases

63. All land in Singapore unless alienated belongs to the State. The right of the

State to alienate land vested in it is not expressly provided in any statute. It is an inherent right of ownership. In providing for the terms under which individuals may be granted land by the State and by giving the President the power to make rules for the disposal of State land, the State Lands Rules, 1 the State Lands Act by necessary implication, recognizes the right of the State to dispose of State land. 2 No State land may be alienated without the approval of the President. While indivi- duals may apply under the State Lands Rules for land to be alienated to them the

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6466

Urban Redevelopment Authority, a statutory corporation, is the main agent respon- sible for releasing and allocating lands for development. 3

1. Cap. 314 R 1 1994 Rev Ed.

2. Cap. 314 1997 Rev Ed.

3. Section 3 Urban Redevelopment Authority Act Cap. 340 1990 Rev Ed.

64. The State may grant land to individuals in estates in perpetuity, leaseholds

or in fee simple. The estate in perpetuity is granted to the grantee forever. A State lease may be for any period and in the past terms for 999 years were not uncom- mon. In recent years the 99-year lease is the norm for land earmarked for residen- tial purposes. Both these types of estates, the estate in perpetuity and the State lease, are subject to conditions and covenants implied by the Act. These conditions and covenants provide for the payment of an annual rent and reserve to the State various rights such as the right to mine for minerals. 1 A breach of the covenant to pay rent empowers the State to sell the land and a breach of any other covenant entitles the State to re-enter and forfeit the land. Subject to this the grantee of an estate in perpetuity has the interest forever and the holder of a State lease has it until the expiration of the lease.

1. Sections 5 and 7 State Lands Act.

II. Grants in Fee Simple

65. The fee simple estate was granted by the East India Company before the

regularization of land grants under the rst Crown Lands Ordinance. However

since 1902 fresh State lands may not be granted by way of fee simples. The State Lands Act provides for the grants in fee simple only in these instances:

1. where existing grants of fee simples are defective or boundaries are disputed,

2. where for the convenience of the government, the owner of land held in fee sim- ple has to surrender the grant, he may be granted a new fee simple of the same or other land in lieu,

3. where a person applies for a strip of land adjacent to land which he already hold in fee simple, the grant of the strip may be in fee simple,

4. where the holder of a fee simple estate desires to develop and subdivide the land he may surrender the holding for a re-grant of one or more titles similar to the one surrendered.

III. Reversion to State

66. Alienated land may revert to the State in the following ways:

1. In the case of a State lease, on the expiration of the lease the land will revert to the State.

2. The State may exercise its right of re-entry and forfeit the estate in perpetuity

or the State lease where the grantee has breached a condition or covenant implied by the State Lands Act. 1 Where the breach is of payment of rent the

Property and Trust Law (February 2000)

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66

Part I, Ch. 1, General Classication

land may be sold by the State. In the event that the land cannot be sold to another individual the land reverts to the State. 2

3.

Where the grantee or lessee or his successor has abandoned the land for three years and above the land reverts to the State although the land may be in the actual occupation of some individual. 3

4.

Where land has been granted free from rent or at a nominal rent for religious or charitable purposes, it shall be forfeited and vest in the State should it be used for another other purposes. 4

5.

Where a person dies intestate his land together with all his other property will go to the State where no one is entitled to his estate. 5

6.

Aside from land reverting to the State in the circumstances given above all land is susceptible to compulsory acquisition by the State under the Land Acquisi- tion Act, 6 where it is required for a public purpose or for a public authority. Where land is acquired under the Land Acquisition Act compensation is payable. 7

1. Sections 7(1)(e) and 2(b) State Lands Act.

2. Sections 5, 6 and 16 Land Revenue Collection Act Cap. 155 1985 Rev Ed.

3. Sections 9, 10 and 12 State Lands Encroachment Act Cap. 315 1985 Rev Ed.

4. Section 10 State Lands Act.

5. Sections 7 & 9 Intestate Succession Act Cap. 146 1985 Rev Ed.

6. Cap. 252 1985 Rev Ed.

7. The quantum is assessed at the market value at January 1992 in respect of land acquired after January 1993. Land Acquisition (Amendment) Act 1993.

36 Singapore

Property and Trust Law (February 2000)

67–71

Chapter 2. Legal and Equitable Interests

67. Historically interests that are recognized by the common law courts are

legal interests. Such interests are created only when the required forms are used.

Currently the conveyance of all interests in land except for the lease of seven years and below has to be by deed in the English language. 1 Where this is complied with the legal interest is transferred. A legal title is good against the whole world. Thus

in

a situation where there is a conflict between two or more legal interests the first

in

time will prevail.

1. Section 53 Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.

68. English principles of equity together with equitable interests in land were

received into the law of Singapore by the Second Charter of Justice 1826. Fusion of

the administration of law and equity was first effected by Section 3 Civil Law Enact- ment 1878. 1 Section 3 Application of English law Act continues the reception up to the cut off date of 11 November 1993. Thus title to all property may be held in law

or

in equity and common law and equitable remedies are available in the Courts. 2

1. Now Sections 3 & 4 Civil law Act Cap. 43 1994 Rev Ed.

2. Sections 3 & 4 Civil law Act Cap. 43 1994 Rev Ed.

69.

At common law all conveyances of any interest in land except for leases

of

over seven years require deeds in the English language. Thus a lease of eight

years in writing in the Chinese language is void at law. However, in equity the lease is good. 1 Similarly if the legal owner of an interest in land were to create a mortgage in an informal manner, e.g., by deposit of title deeds the mortgage is an equitable one.

1. Parker v. Tarswell (1858) 2 De G & J 560; Walsh v. Lonsdale (1882) 21 Ch D 9; Bannerji v. Chin Cheng Realty (Pte.) Ltd. [1983] 2 MLJ 18; Khoo Keat Lock v. Haji Yusof & Ors (1929) SSLR 210.

70. Whether an interest in property is legal or equitable depends on factors

such as the interest owned by the grantor, the mode of transfer, or the nature of the transaction. For example, if A is the owner of an estate in perpetuity in Blackacre,

he can convey the estate by deed in the English language to B. B then has the legal

and equitable interest. Alternatively A can convey the estate by deed to T in trust for B. In this situation T has the legal title while B has the equitable interest. When

B then deals with his interest, e.g., by way of a mortgage, the interest that his

mortgagee gets is an equitable interest.

71. Equity looks at the substance and not the form. This maxim of equity is the

basis of some equitable interests, e.g., the equity of redemption. In form the legal mortgage takes the form of a conveyance with a proviso for redemption. But equity protects the right of redemption beyond the contractual date and recognizes the mortgagor as the real owner of the land. The mortgagor thus has an equitable

Property and Trust Law (February 2000)

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Part I, Ch. 2, Legal and Equitable Interests

interest in the land, the equity of redemption, 1 and not just a mere contractual right to redeem.

1. Casbourne v. Scarfe (1738) 1 ATK 603; Re Wells, Swinburne-Hanham v. Howard [1933] Ch 380; cf. DBS Finance Ltd. v. Prime Realty [1991] 3 MLJ 96 where by way of dicta the High Court stated that the mortgagor of an equitable interest in land did not have any estate legal or equitable in the land but had only an equity of redemption.

72. The maxim, equity looks on that as done which ought to have been done,

is yet another source of the recognition of equitable interests. Thus a valid and bind-

ing contract for the sale of land gives to the purchaser an equitable interest in the land. 1 Likewise an agreement for a lease gives rise to an equitable lease. 2 Another example of an equitable interest is that of the restrictive covenant developed by Equity to complement the common law easement. 3

1. Lysaght v. Edwards (1876) 2 Ch D 499; Christina Lee v. Eunice Lee [1993] 3 SLR 8; Chi Lung Sendiran Berhad v. Attorney General [1993] 2 SLR 629.

2. Walsh v. Lonsdale (1882) 2 Ch D 9.

3. Tulk v. Moxhay (1848) ER 114.

73. An equitable interest is enforceable against the whole world except for the

bona de purchase of the legal interest without notice. In the context of priorities notice means actual notice, imputed notice and constructive notice. 1 Except where otherwise provided by statute priorities of equitable interests are governed by the equitable maxims: where the equities are equal the rst in time prevails, and where the equities are equal the law prevails. Within the term equities are the factors of bona des, value and notice. Because of the stretch of constructive notice, notice which a person is deemed to have from that of which he has actual notice, statutes which provide for registration whether of deeds or of title expressly state that where the deed or title is registered the person who has registered has priority notwith- standing that he may have actual notice of the existence of the prior interest. 2

1. The equitable doctrine of notice has been incorporated in Section 70 Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.

2. E.g. Section 14(4) Registration of Deeds Act Cap. 269 Singapore Statutes 1989 Rev Ed., Section 47 Land Titles Act Cap. 57 1994 Rev Ed. See below Chapter 3 Registration Systems.

74. Aside from established equitable interests there are also rights commonly

referred to as equities. Essentially an equity is a right recognized by equity to recover property transferred, to enforce a right of occupation or to set aside a transaction. The basis for the existence of such a right can be fraud, undue inuence or mistake. While such rights are in the nature of personal rights sometimes re- ferred to as personal equitiesyet in certain circumstances they may be enforceable against third parties. In terms of priorities an equity is not equal to an equitable interest. 1 Thus in a contest between an earlier equity and a purchaser of a later equitable interest the earlier equity will not bind the later equitable interest unless the purchaser was without notice of the equity. In spite of its lesser range of enforceability there is growing support for the view that an equity is within the realm of proprietary interests. 2 Where the equity is in the form of a right to occupy land, e.g., in the case of a licence based on an estoppel the extent to which it will

38 Singapore

Property and Trust Law (February 2000)

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7576

affect a third party is still in some doubt, although the better view may be that it should only bind a subsequent purchaser only if he has been guilty of actual fraud or where he has given an express undertaking to honour the licence. 3

1. Phillips v. Phillips (1862) 4 De GF & J 208; Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd. (1965) 113 CLR 265.

2. See footnote above and Wade, [1955] CLJ 482, Crane (1955) 19 Conv (NS) 346; Jackson, Principles of Property Law, 1967.

3. Ives Investment v. High [1967] 2 QB 379; Inwards v. Baker [1965] 2 QB 29; Binions v. Evans [1972] Ch D 359; Ashburn Anstaldt v. Arnold [1989 ] Ch 1. See also Ricquier and Soon, The Licence coupled with an Equity in Singapore and Malaysia(1981) 23 Mal LR 123, Battersby, Contractual and Estoppel licences as Proprietary Interests(1991) Conv. 36.

75. As is discussed in Chapter 3 below there is in place in Singapore a system

of registration of titles under the Land Titles Act. 1 Under this regime all transfers of land under the Act must be by way of registration. The question that arises is whether equitable interests exist under this system. It would seem that it is accepted that the Land Titles Act recognizes the existence of equitable interests. Section 115 permits a person who claims an interest in land to lodge a caveat and Section 4 denes an interest in land by reference to the general law. 2 Further it would seem that in spite of the explicit provisions of the statute even personal equities may adversely affect third parties who have registered interests. 3

1. Cap. 157 1994 Rev Ed.

2. See also Jackson, Equity and the Torrens System: Statutory and other interests(1964) 6 Mal L R 146.

3. See below Chapter 3 Registration Systems.

76. The list of equitable interests is not closed. But while there are rights which

are enforced against some third parties, until the recognition goes to the extent of enforceability against the whole world except for the bona de purchaser of the legal interests, such rights are called mere equities. 1 As discussed above, equities are personal rights which may be enforceable against a party other than the imme- diate party concerned on account of some element of fraud or unconscionability.

1. There are also personal rights which do not affect any third party on policy grounds, e.g. National Provincial Bank v. Ainsworth [1965] AC 1175.

Property and Trust Law (February 2000)

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77–79

Chapter 3. Registration Systems

§1. Registration of Deeds

I. In General

77. Currently there are two systems of registration applicable to transactions

relating to land. First there is the registration of deeds system which was introduced

into Singapore in 1886 with the enactment of the Registration of Deeds Ordinance based on the English Yorkshire Registry and Middlesex Registry Acts. 1 The statute in force is the Registration of Deeds Act. 2 This Act applies to dealings in land to which the general law of conveyancing applies. This is all land except those which are under the Land Titles Act. 3

1. Yorkshire Registry Act 1703, Middlesex Registry Act 1708.

2. Cap. 281 1989 Rev Ed.

3. Cap. 157 1994 Rev Ed. Discussed below.

78. Under the general law conveyances of interests in land except for the lease

of seven years and below have to be by deed in the English language. 1 While the deed is required to pass the legal interest, equitable interests are created with no formality since equity works on intention, on substance rather than the form. Under this system of conveyancing dealings in land are completely private acts and secrecy prevails. Where conflicting interests arise in respect of the same interest in land the priorities are regulated by the equitable maxims: where the equities are equal the first in time has priority, where the equities are equal the law prevails. Under these maxims the protected person is the bona fide purchaser for value of the legal interest without notice. Thus in this regime of conveyancing and regulation of priorities there is much opportunity for fraud to be practised.

1. Section 53 Conveyancing and law of Property Act Cap. 61 1994 Rev Ed.

II. Reasons for Registration

A. Admissibility as Evidence of Title

79. Under the Registration of Deeds Act, deeds relating to land may be regis-

tered in the Registry of Deeds. Deeds which may be registered include the convey- ance, lease and agreement for lease by deed and the memorandum of a lien or charge. 1 Registration of a deed is not required for validity but under Section 4 unless a deed relating to land is registered it shall not be admissible in court as evidence of title. 2 This provision caused many problems such as that in Ho Hong Bank v. Teo Chin Chay and the cases that preceded it. In Ho Hong Bank a mort- gagor tried to get out of the mortgage by deposit of title deeds by pleading that the mortgagee could not sue on the mortgage as the memorandum of the mortgage had

40 – Singapore

Property and Trust Law (February 2000)

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8082

not been registered so that it could not be used as evidence in court. The court held that the document was admissible as evidence of the contract of the mortgage. Section 4 has little to do with the prevention of fraudulent dealings. Instead it was enacted to enable the then colonial administrators to keep a record of land dealings for collection of taxes and other administrative reasons.

1. Section 2 Registration of Deeds Act.

2. Ho Hong Bank Ltd. v. Teo Chin Chay (1929) SSLR 195.

B. Priority

80. Another reason for registration is to secure priority. Where there are two

deeds relating to the same interest in land the rst to be registered has priority except where there is actual fraud. 1 This advantage accrues only to the purchaser. But where a deed is invalid or void registration does not make it valid. Under the Registration of Deeds Act the importance of the equitable doctrine of notice is diminished and the equitable maxims of regulating priority are no longer relevant except in the rare situations where the transactions are not in deed form and so are not registrable under the Act. 2

1. Section 14 Registration of Deeds Act.

2. Rodger v. Harrison [1893] 1 QB 161; Khoo Keat Lock v. Haji Yusop (1929) SSLR 176; Syed Omar v. Somasundram Chitty (1910) 11 SSLR 38.

81. By giving priority to the rst to be registered of two or more deeds relating

to land the objective of preventing fraud is partially met. However, not all dealings affecting land require a deed. For example, equitable interests created under a contract for sale, equitable leases may be effected without any formality. Where this is the case there is no deed to be registered. In such cases the Registration of Deeds Act is not applicable. Priority then is still regulated by the equitable maxims. An exception is made in the case of the equitable mortgage, lien or charge where Section 6 provides that a memorandum of the lien or charge must be registered to be effective against a subsequent purchaser for value. 1

1. Chung Khiaw Bank Ltd. v. United Overseas Bank Ltd. [1970] 1 MLJ 185.

82. However, recently by providing for caveats of interests in land to be reg-

istered the equitable interests are now capable of being reected in the Registry of Deeds. 1 Although the provisions for the caveat sit uncomfortably in the context of the other provisions, yet if the caveat can be construed as an instrumentwithin Section 14 it can be said that the equitable interest which has a registered caveat has priority over a deed which is registered after it. 2 In any event the very fact of the existence of the caveat would give notice to all the world of its existence thereby even in this limited way, removing one of the weaknesses of the system. But in any event this system of registration of deeds is being replaced by a more comprehensive system of registration, viz., title registration.

1. Section 8 Registration of Deeds Act.

2. See S.Y. Tan, (1988) 30 Mal. LR 371376.

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Part I, Ch. 3, Registration Systems

III. Problems

83. Some of the difculties with the Registration of Deeds Act stem from the

fact that registration of the deed relating to land is not compulsory. For example, doubts have been raised as to whether a second conveyance of the same interest in land which is registered but the