Can Property Held Under a Joint Tenancy Be Subject to a Writ of Seizure and Sale?
Published on 19th March, 2019 by Benjamin Li Yong Le
In recent times, there have been several conflicting High Court decisions dealing with the question of whether a joint tenant’s interest in immovable property can be subject to a writ of seizure and sale (“WSS”).
The Singapore Courts in Malayan Banking Bhd v Focal Finance Ltd (“Malayan Banking”) and Chan Lung Kien v Chan Shwe Ching (“Chan Lung Kien”) decided that a WSS cannot attach to property held under joint tenancy.
However, two other High Court decisions, namely, Chan Shwe Ching v Leong Lai Yee (“Leong Lai Yee”) and Peter Low LLC v Higgins, Danial Patrick took a contrary position.
On 12 March 2019, in a decision of the High Court (delivered by Justice Chan Seng Onn) held that allowing a joint tenant’s interest to be attached to a WSS would be consistent with the intention of John Baalman (“Baalman”), the draftsman of the Land Titles Ordinance (the predecessor of the present-day Land Titles Act).
In his commentary on the Land Titles Ordinance, Baalman wrote that, in Australia, the interest of a joint tenant could be taken under a writ, and that there was nothing in the Ordinance which made the Australian decisions inapplicable.
The Court stated that the WSS may attach to a joint tenant’s interest in land independent of severance of the joint tenancy.
This was supported by the broad wording of the relevant statutory provisions, which do not indicate the need for severance of the joint tenancy before the WSS may be attached for the purposes of enforcing a judgment.
There was no judicial overreach in allowing for such attachment despite the lack of express statutory wording enabling the seizure of a joint tenant’s interest under a WSS; the Canadian and Australian statutes which expressly provided for the attachment of the interest of a joint tenant under a writ were clarificatory rather than enabling provisions.