Newbie
I like to ask anyone who has any information on this or can point me to somewhere i can search on the topic of tenancy in common. Assuming i buy a property with tenancy in common with my uncle and due to some reasons if the relationship sour, can i pull my share out and either ask him to buy over my share or sell the property? Many thanks to those of you who take the time to reply.
Newbie
under both "tenancy in common" and "joint tenancy", you can pull out and sell your share to the other party, the question is whether they are party wants to buy your share. Also, bear in mind that the property can't be sold, unless both parties agrees to sell.Originally Posted by tericia
the difference between the 2 is, under "Tenancy in Common" if A passes away, the shares will automatically go to B. However, under "Joint Tenancy" A's share will be subjected to will and probate, and does not automatically go to B.
hope this helps
Newbie
Sorry, you have got it the wrong way round.
In joint tenancy, each owns the whole with right of survivorship between the two.
In tenancy in common, a percentage share is specified and therefore there is no right of survivorship. In case of death, the interest is either willed to someone or if no will is done, passes in accordance with intestacy rules.
In the case of a joint venture to buy property, a tenancy in common in proportion to the respective capital and contribution is more appropriate.
If in doubt, the threadstarter should consult a qualified lawyer to advise.
DN
I believe your legal interpretation ofthe Land Titles Act (Cap 157) is flawed. It should be the other way round.
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.
Newbie
Thank you for your contribution. I did consider asking my lawyer but i decided to ask anyone here for help first and it would be good for this information to be available to everyone else.
The issue for me isn't death but whether i can sell the property as and when i want if it is under a tenancy in common, much like selling your share of a business away if you don't want to be part of it anymore.
So far there isn't much information concerning the area of sale under tenancy in common.
If both parties need to agree before a sale can be done, then my next question is what happens if one party becomes a bankrupt or he doesn't have funds to sustain the property and i'm unwilling to sell because of good rental income. Would that situation force a sale then?
Many thanks for your kind contributions.
Junior
Those who need will ask mah. Dun have to ask you ask then information will be available. You can talk to your lawyer first and post here.
DN
Dear Tericia,
To completely address your concerns, you should structure your joint venture by contract and clearly identify and address the concerns you have with structures as would be necessary for your comfort.
I think this is something you should seek independent legal advice for your reliance; particularly when there are all sorts of odd balls here, whom at times (no names mentioned), give you advice which are completely incorrect or a fatally wrong understanding of the Singapore legal basis. Anyway, good luck!!
Newbie
thanks for the advice. Would speak with my lawyer. Based on what i read for Land Law in singapore, the only way seems like a personal contract between parties. The only issue is whether the contract translates into a fixed debt situation (because there is a property) or a floating debt situation (because it's just payments) and if i'm a tenant in common would i have first say to what to do with the property. If it turns out that i'm just one of the floating debtors (or even a fixed debtor) then most probably i would be still be low priority in compared to the bank debt he owes.
The date of the contracts may make a difference in this case as we may make the contract earlier then the purchase of the property so that may give me priority. If that is the case, then it is possible the banks may be instructed to defer to my opinion as to how to handle the property.
Well, the whole thing sounds messy if it turns bad though... sign...
Newbie
Tericia,
I think talking to your lawyer as you plan is very important.
Sharing in any joint venture gives rise to quite a lot of problems.
Your issues about fixed debt or floating debt are irrelevant (I think you are confusing this with the mortgagee's type of security over the property). As far as the mortgagee is concerned, they have first right. You can only do what you want with the property after you pay them off. The Bank won't care what the tenancy in common respective share is. Please also ask your lawyer to read your mortgage documents carefully. Most if not all banks will ensure that both co-owners are jointly and severally liable for the debt, not just limited to their tenancy in common share.
Whether you do it by tenancy in common or joint venture, without your uncles agreement, you will have problems which cannot be resolved without going to court.
If say you uncle goes bankrupt under a tenancy in common, his share will go to the official assignee. You then have to seek their consent to sell.
The above is just some friendly thoughts for you to consider in your discussion with your lawyer.
Newbie
Hi all, first i want to thank all of you for taking the time out to discuss the issue with me. Despite what some may say, i personally feel forums like these are really heavenly compared to my parent's time where investing is really a trial and (sometimes big) error situation.
Second, i usually read the comments on this forum but i don't usually contribute cuz am most times not sure about the topics so i think it's good that i can give something back.
As for the issue of tenancy in common, i've checked with my lawyer that i'm currently using for a re - financing.
Tenancy in common
1) i can sell my share anytime without the consent of my partner. The lawyer so far has only seen parties selling their shares to the other partner but not to a 3rd party. However, she said both can sell to anyone they like at anytime. The only issue is the re - financing of the property once the ownership changes hands. The existing owners after the sale of shares need to make sure they can get financing for the property together. If not, the sale is a no deal unless the new buyer pays 100% of his/ her share.
2) if either party becomes bankrupt, they can sell their share to the existing partner before bankruptcy occurs. If they don't do anything until they're declared bankrupt, the banks'll usually come in to consult and negotiate with the existing partner (who is not bankrupt) to get him to buy over the share. Based on the lawyer's experience, usually the banks in these situations would prefer the non - bankrupt party to buy over the share and they're more willing to give loans to accomodate the situation (if they can). If the bankrupt has back payments due, then whatever price the bank sells his share for, they'll deduct all payments owed and give the rest to him (if there's any). So far my lawyer hasn't seen a case where the banks has to sell the bankrupt share to a 3rd party.
*Note: Please do double check again if you wish to use this method to acquire more property. I'm giving the above information as a layman contributor to Condosingapore, not as a professional and/ or expert.
Please seek appropriate professional advice to further clarify the above issues.
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