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Legal Issues

Discuss about the Conveyancy and Land Law.

The Conveyance and Law of Property Act Part 1 section 2 defines conveyance as an activity that involves the appointment, assignment, the settlement and lease that is made by deed on a sale of property.Basing on these facts, it is possible to denote that conveyancing is a legal term that refers to the transfer of a legal title, of a property from one party to another.It can also include the granting of encumbrances, such as mortgages. This notion of conveyancy is better defined in the 2006 case of United Overseas Bank v Bebe Mohammed. While defining conveyancy, the judge noted that conveyancy refers to a legal process that involves the transfer of the title of a property from one party to another (Wu & Chung, 2013) Furthermore, the court ruled that for the process of conveyancy to be complete, the seller must submit the deed of conveyance together with a title deed to the purchaser.Therefore, it is important to assert that this definition of conveyancy by the case is derived from Part 1 (2) of the Conveyancy and Law of Property Act.

Furthermore, Part II (6)of Conveyancy and Law of Property Act explains the concepts of the conveyancy of land and buildings.The act defines a conveyance of land as a legal acquisition of hedges, erections, buildings, watercourses and ditches that appertain to the given and identified land. Furthermore, before the transfer of land to the new owner, there is a need of registering the title of the land at the land registration office (Chen & Cui, 2014).This is a provision contained in Chapter 269 of the Registration of Deeds Actsection 4.For instance, this law explains that a registration deed that has not been registered by the registration office cannot be produced in a court, as an evidence of the ownership of land.

Therefore, it is possible to assert that the process of conveyancy cannot be complete without the registration of the deed. Additionally,the importance of registering the deed is the priority that the registered deed has, over the unregistered one, in case a conflict arises that concerns the purchased land (Alexander, 2014). Therefore, failure to follow the provisions of section 4 of the Registration of Deeds Act may lead to the loss of the purchased land, or failure of the court to recognize the conveyancy process. On this basis, this paper provides an analysis of the Land Laws and Conveyance in Singapore.

Relevant Law and Procedures

The legal Issue in relation to land law and conveyancy is, whether failure to register a title of deed at the land registration office, after the process of conveyancy is complete, makes the process to be null and void?

The legal process of buying land in Singapore is long and frustrating.Section 144 of the Land Titles Actrecognizes the fact that it is possible to sale land for purposes of revenue or rates.For instance, section 144 (1) denotes that the comptroller of property tax may execute a transfer of land, in the form that is approved, and the purchaser or the registrar of land shall not inquire on whether the relevant provisions of a relevant act, in regard to the transfer of land has been met (Haila, 2015).

From this law, it is possible to assert that the person selling the land, can either sale it, in order to acquire revenue or he can sale it for purposes of rates. It is important to denote that section 144 (3) of the Land Titles Act, makes it mandatory for an individual to register with the Land Registration office, after the purchase of the land (Li, 2014). For instance, the section denotes that, if the purchaser has not presented the certificate of transfer to the land registration office, then the registrar of the land has the power and authority to cancel the transfer, and create a new register that favors the person who has transferred the land.

From this section, it is possible to denote that the transfer of land, without the registration of the title at the land registration office is null and void. This is because it has not led to the completion of the conveyancy process (Agarwal et al, 2014). Moreover, it is important to note that even the Registration of Deeds Act recognizes the importance of registering a transferred title, and the advantages that comes with it (Lee, 2015). Just as the Land Titles Act, the Registration of the Deeds Act does not recognize a title that has not been registered, even if the full conveyancy process has been followed (Asher, Bali & Kwan, 2015).Therefore, it is important to assert that the complete conveyanceprocess ends with the registration of the title at the land registration office.

Basing on these facts, the sub-legal issue is;

Is there an exception to the failure to register the title of the transferred land to the person who has acquired it, from the transferee?

Another sub-issue that this paper aims at looking at, are,

If there is an exemption to the above rule, what are they, and what are the tests established by courts to identify the existence of the given interventions?

While coming up with a solution to the identified issue, there are a number of laws that the paper will rely on. The first law is the Conveyance and Law of Property Act.This law will identify the various processes of conveyancy and transfer of property to the buyer. For instance in Part 1 section 2 of the law, it identifies the concept of conveyancy (Tu, 2016). It identifies this notion as a legal process responsible for the sale of properties within the country. Therefore, an understanding of this notion will play a role in determining the validity of a transaction of properties and land in Singapore (Hopkins, 2013). For instance, it may be illegal to engage in the transfer of a property that has been placed under a caveat.This is because there may be legal issues that the property is currently under; hence, the seller of the property may be prevented to sale it.Another important law to rely on, is, the Registration of the Deeds Act. Of important concern to this law is section 4 of the act.

Section 4 of the Registration of Deeds act makes it mandatory for the title of land to be registered, at the land registration office. The registration of this title is the last process during the conveyancy process (Teo, 2015). For instance, section 4 denotes that, “as under to this act and rules, every purchase executed and the letter of administration granted, in which every land in Singapore is affected, and which have not been registered, shall not be admissible in any court of law, as evidence to the title of the given land”.Basing on the provisions of this law, the application of this law, while discussing the legal issues identified is important, because it gives the position of the law, regarding the registration of land titles (Penner, 2016). Furthermore, the act is important because it explains the process of registration, and the importance of carrying out a complete process in the sale and purchase of land.       

Another important law that is to be relied on is the Lands Title Act. This is a very important law that provides guidance on the manner which land is bought and registered in Singapore (Waldorff, 2016). This law provides information on who qualifies to own and buy land in Singapore, the conditions that must be present for the purchase of land and the importance of registering the land at the lands registration office (Bridge, 2015). Furthermore, section 144 (3) of the Lands Title Act makes it important for the title of land to be registered. This is because the act denotes that in circumstances where the certificate of title for land has not been presented for registration, during the transfer process, the registrar of the lands has the power of cancelling the process and creating a new portfolio that favors the transferee (Rajah, 2012). Therefore, the registration of the title is an important process that guarantees the success of the conveyancy process.

A common law principle that this paper will rely on is established in Zulaika Bee Binte v QuekChekKhiang (2014). This is a case law that was looking at the validity of a property that is not registered by the registrar of lands, and whether the property under consideration can be used in court as evidence. From this case, the judge ruled that unregistered property can be used as evidence in court, but there are tests that it must pass (Shatkin, 2014). One of such tests is that during the process of transfer, there was an intention to create a legal obligation.Other common law principles to be used are,Tan PohBeng v Choo Mei (2014) and Chong PohSiew v Chong Poh Hen (1994). 

According to the Conveyance and Property Act, the process of conveyancy involves a situation whereby there is a legal transfer of property, specifically land, and everything that is on that land. This is a provision contained in Part 1 Section 2 of the law. Basing on these facts, the legal transfer of tile of land is a process in conveyancy (Gill, 2013). The issue of the case is whether the failure to register a purchased property makes the process of conveyancy to be null and void.Section 144 (3) of the Lands Title Act and section 4 of the Registration of Deeds Actdeals with this notion of registering a title of property after it has been purchased or legally transferred.

 For instance, section 4 of the Registration of Deeds Actdenotes that it is important for a title to property to be registered. Failure to register the title, will lead to its inadmissibility in a court (Chen, 2013). From this section, it is possible to denote that the process of conveyancy will not be complete, if the title to the property has not been registered. This is a position that is taken in the Lands Title Act section 144 (3).

In Zulaika Bee Binte v QuekChekKhiang (2014), the court was of the opinion that all instruments that affect the registration of land must beregistered. That is before or after 30th of November 1988. In coming up with this decision, the court invoked section 2 (1) of the Registration of Deeds Act (RODA).The court was of the opinion that section 4 of RODA was aimed at assurances which are defined in section 2 of RODA. Basing on these facts,section 2 defines an assurance as a conveyance, discharge, memorandum of charge, deed of consent for purposes of discharging a trustee, etc. On this note, it is possible to use Part 1 (2) of the Conveyance and Property Act to define what a conveyance is.   

Therefore, in the definition of a conveyance, the court denoted that it an appointment, lease, assignment that is made by a deed of sale. Therefore, the sale of land or property is conveyance, and in the decision of the court, any product of conveyance, the title of such property must be registered (Tambunan, 2016). Therefore, unregistered object of conveyance cannot be used in court as evidence. However, the court explained that there is an exemption to this rule. This exemption only occurs if the properties under consideration are trust deeds.

In coming up with a decision on the exemptions of trust deeds from being registered, the court relied on Chong PohSiew v Chong Poh Hen (1994).Under this case, trust deeds do not satisfy the conditions established in section 2 of RODA; hence, section 4 of RODA does not apply to them. Furthermore, any title of the property that was acquired before the enactment of the laws can be transfeered, without the purchaser or person acquiring the property registering with the land officer. However, for this to apply and be recognized by the courts there is a need of the parties to the process, to prove that there was an intention to create a legal obligation or relationship between the people who are involved in the process.

Basing on these facts, it is possible to denote that engaging in a conveyancy process, without registering the deed of transfer, will make the process to be null and void. This is because the courts will not recognize the unregistered deed, and the document cannot be produced in a court of law as evidence (Zhou & Zhao, 2016). Furthermore, the exemptions to this principle are narrow, and it falls on titles that are acquired through trust deeds and titles acquired before the enactment of the law. Titles acquired through trust deeds are not targeted under section 4 of RODA act and section 144 of the Land Titles Act.

Conclusion

The process of conveyancy and buying land is a complex process in Singapore, and it requires a number of legal steps to be followed, so that the process is recognized by a competent court of law. Some of the laws that are applicable to the purchase and transfer of land are the Lands Title Act and the Registration of Deeds Act. One of the important provisions in these two laws, is the fact that there is a need of registering a title of land, after the process of conveyancy is complete. This is a provision that is contained in section 4 of the  Registration of  Deeds Act and Section 144 of the Lands Title Act. Zulaika Bee Binte v QuekChekKhiang (2014) is a case that confirms the importance of these clauses in the process of conveyancy. However, the precedent established in this case, is that title of trust deeds must not be registered with the registrar of lands.

References

Agarwal, S., He, J., Liu, H., Png, I. P., Sing, T. F., & Wong, W. K. (2014). Superstition and asset markets: Evidence from Singapore housing. Available at SSRN 2416832.

Asher, M. G., Bali, A. S., & Kwan, C. Y. (2015). Public Financial Management in Singapore:  Key Characteristics and Prospects. The Singapore Economic Review, 60(03), 1550032.

Alexander, E. R. (2014). Land-property markets and planning: A special case. Land Use Policy, 41, 533-540.

Bridge, M. (2015). Personal property law. OUP Oxford.

Chen, S. (2013). Limits on Prosecutorial Discretion in Singapore: Past, Present, and Future, The. Int'l Rev. L., 1.

Chen, J., & Cui, J. (2014). More market-oriented than the United States and more socialist than China: a comparative public property story of Singapore.Pacific Rim Law & Policy Journal, 23, 1-55. Li, R. Y. M. (2014). Law, Economics and Finance of the Real Estate Market: A Perspective of Hong Kong and Singapore. Springer Science & Business Media.

Gill, C. (2013). Open Access to Legal Materials in Singapore.

Haila, A. (2015). Urban land rent: Singapore as a property state. John Wiley & Sons.

Hopkins, N. (Ed.). (2013). Modern studies in property law (Vol. 7). Bloomsbury Publishing.

Lee, J. T. T. (2015). We Built This City: Public Participation in Land Use Decisions in Singapore. Asian Journal of Comparative Law, December, 18. Tu, G. (2016). Law of Property. In Private International Law in China (pp. 61-63). Springer Singapore.

Penner, J. (2016). The law of trusts. Oxford University Press.

Rajah, J. (2012). Authoritarian rule of law: Legislation, discourse and legitimacy in Singapore. Cambridge University Press.

Shatkin, G. (2014). Reinterpreting the meaning of the ‘Singapore Model’: state capitalism and urban planning. International Journal of Urban and Regional Research, 38(1), 116-137.

Tambunan, T. (2016). Identifying Stakeholders in the Land Use Management Process and Related Critical Factors in ASEAN.

Teo, K. S. (2015). Land law. Singapore Academy of Law Annual Review of Singapore Cases, (Annual Review 2015), 540.

Waldorff, P. (2016). ‘The law is not for the poor’: Land, law and eviction in Luanda. Singapore Journal of Tropical Geography, 37(3), 363-377.

Wu, T. H., & Chung, L. K. (2013). “A law which favours forgers”?: Land fraud in two Torrens jurisdictions.

Zhou, Y., & Zhao, J. (2016). Assessment and planning of underground space use in Singapore. Tunnelling and Underground Space Technology, 55, 249-256.

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