Beruflich Dokumente
Kultur Dokumente
Rules
- Common law
o Law of Contract
o Land Law
Joint ownership
Mortgages
Landlord & Tenant
Others
o Law of Trusts
- Statutes
o Civil Law Act
o CLPA
o LTA / LTSA
o RPA – impt. Law that prohibits foreigners fr ownng landed property. Rules relaxed last yr to some
extent, be aware!
o Planning Act
o Stamp Duty Act – ad valorem: commensurate with transaction price ie the more expenseive the
property the more stamp duty pay
o HD(C&L)A
o Sale of commercial properties Act
o CPF Act
o Others
- Subsidiary Legislation
- Rules
- Practice Directions (see Singapore Land Authority (SLA))/ Stamp Office/ Property Tax Department/ Courts
(rarely)
o From various government departments, like SLA, IRAS (stimes GST also – commercial properties
not exempt fr GST), ACRA, CPFB, URA, HDB, MAS etc – issues guidelines to banks as to how
much money they can gant in form of loans
TRANSFER =>
Sale
Gift
Assent (under a will)
Mortgage
Others – eg transfer of leasehold interest with reversionary interest/ grant of easement etc
INTEREST =>
Types of interest
Legal
Equitable
Whole
Part
Reversionary
Others
PROPERTY =>
Types of real property
Residential
Commercial
Landed property
Strata title
Leases, and others
Knowledge of conveyancing is useful in
- Litigation involving property. After all, the main reason why people go to court is to fight over money and property.
- Corporate deals such as mergers and acquisitions and securitization. Reason – many companies own property. In finance
and banking, one invariably finds that security includes real property
- Rule 2 Legal Profession (Solicitors’ Remuneration) Order mandates that the remuneration of a solicitor
other than contentious business “shall be such sum as is fair and reasonable having regard to all the
circumstances of the case”
Non-contentious business
2. The remuneration of a solicitor in respect of business other than contentious business shall be such sum
as is fair and reasonable having regard to all the circumstances of the case, and in particular the following
circumstances:
(a) the importance of the matter to the client;
(b) the skill, labour, specialised knowledge and responsibility involved on the part of the solicitor;
(c) the complexity of the matter and the difficulty or novelty of the question raised;
(d) where money or property is involved, the amount or value thereof;
(e) the time expended by the solicitor;
(f) the number and importance of the documents prepared or perused, without regard to length; and
(g) the place where, and the circumstances under which, the services or business or any part thereof are
rendered or transacted.
A1.Solicitor for an intending vendor is to ensure that the client does not get himself into a big bundle of
trouble by committing himself to a contract which he is going to have difficulty performing
- Failure to complete in time or at all will render the client liable for financially painful damages
- Common law rule in Bain v. Fothergill (1974) LR 7 HL 158, where the vendor breaks a contract owing
to an irremovable defect in title, the purchaser can only recover the cost of investigating the title and
not for loss of bargain has been statutorily abolished in Singapore for several years now
3) Discussing with the client issues like GST; getting approval from JTC or HDB; how long the
process of getting approval could be expected to take
A2.solicitor then draws up the draft sale agreement, which is sent over to the intending purchaser’s solicitor
B1.solicitor for the intending purchaser will not waste his time and money and suffer opportunity costs in
negotiating with a prospective vendor who really is not able to contract the sale for one reason or
another
- checks would be:
a) making a preliminary bankruptcy/winding up search on the intending vendor, an option fee is
usually paid to the vendor and in other cases, the vendor may insist that a 10% deposit be paid to
the vendor directly and not to a stakeholder pending completion. Purchaser’s solicitor would want
to ensure at the very least that the vendor is not insolvent
b) preliminary title search
c) ascertaining that the client is eligible to purchase the property
B2.
a) advise the client on some basic tax,
b) inheritance and
c) estate duty laws and financial planning;
d) whether property would best be purchased in is own name or jointly with his spouse’s or his
children’s;
e) implications of holding the property as joint tenants or tenants in common
B3.advises and assists the purchaser to negotiate the terms and conditions of the sale contract, the necessary
provisions to ask for which would enable the client to rescind the sale contract, if investigations made
after the signing of it reveal title or other problems which materially affect the value of the property
A3.vendor’s solicitor:
a) helping his client to give notice of redemption to the client’s mortgagee and/or CPF Board;
b) getting in the title deeds;
c) ensuring that property tax and outgoings are paid up to date;
d) answering requisitions on title and other queries served on him by the purchaser’s solicitor;
e) approving the draft transfer prepared by the purchaser’s solicitor;
f) preparing discharge papers for the mortgagee or CPF Board’s approval and execution;
g) settling the completion account with the purchaser’s solicitors;
h) attending to his client’s execution of the transfer and other documents
A+B. solicitors from both sides eventually meet up to carry out the completion
B5.Purchaser’s solicitor updates his bankruptcy/winding-up and title searches to confirm that there has been
no change from his initial searches, also pays over the balance of the purchase price to the vendor’s
solicitor
A4.And the vendor’s solicitor delivers to the purchaser’s solicitor the transfer, the title deeds and the keys to
the premises or serving notice of the change of ownership to the sitting tenant
B6.Purchaser’s solicitor either by himself or through the mortgagee’s/CPF Board’s solicitors arrange to have
the transfer and security documents stamped and lodged at the Land Titles/Deeds Registry for
registration
B7.When the Land Titles/Deeds Registry releases the title deeds the purchaser or the mortgagee/CPF
Board’s solicitor collects them and delivers them to the purchaser or mortgagee or CPF Board
Objective
- Transfer of interest in real (immovable) property
- deals with the conveyance and registration of real estate, mortgages, securitisation, and whole prospectus of
land dealings
- importance of conveyancing: land and the priorities accorded by registration (first in time prevails); therefore,
have to be efficient in registration process
ILLUSTRATION
Parties negotiate terms ----- Option is granted (= offer in contract)(a piece of paper: CLA – must be evidence
in writing) (specific date, does not span over period of time)( eg 19 Jul) ----option period usu two weeks (for
buyer to decide whether to buy) ------Option is exercised (acceptance of offer)(also happens on particular date
eg 2 Aug -------(commonly 8-12 weeks during which lawyers do searches, prepare security documents, check that
everything in order, check title)-------------Completion takes place (27 Sep)(event that affects the legal transfer,
in lawyer’s office)
2 Aug Option is exercised. Only release when paid. Purchaser then vendor.
- Hold deposit as stakeholders or release to V – note not ur money!!!!
- Send notice of redemption
- In between, purchaser does searches, vendor will tend to redemption of existing mortgages.
- Send title deeds to P’s sols
- Approve draft Transfer
- Prepare completion account – apportion maintenance fees, etc. have to master the accounts!!!!
EXAM!!!!!!!!!!!!!!!!!!!!
27 Sep Completion takes place. Occurs at same time in one party’s office, usually at chargee’s office. where CPF
board involved, on vendor’s side, then at CPF side. If not vendor’s solicitor’s office.
- Arrange & oversee Completion
- Pay redemption money, file e-Notice of Transfer & report Completion
Option is granted
- Ensure signed Option is received in exchange for payment. MAKE SURE THAT NO MISTAKE!
Option is exercised
- Exercise Option according to terms. Stimes must exercise before 4pm, so need to exercise sharply before 4! Or
by cashier’s order. So personal cheque will not do
- Update searches & lodge Caveat
- Investigate title, send Reqs on Title READ MANUAL FOR THESE TOPICS
- Send legal reqs & prepare draft Transfer
- Apply to use CPF, P signs CPF & loan docs
- Vet completion account, prepare bills
- Arrange for funds for completion
- Arrange & oversee Completion
After Completion
V’s sols
- Report completion
- Hand balance sale
- proceeds to V [including stakeholder $, if any]
- [Notice to Tenant / Management Corporation (MC) – if strata title. So that MC can send maintenance fees bills
to new owner.]
- Wait for P’s sols to report registration particulars & forward to V + mortgagee’s [& chargee’s] sols
- Bill paid? Make sure that there is consent. Cannot deduct otherwise. Close file. Impt to close the file. The
faster you close, the faster time starts to run. Take old files and store them away somewhere. Be diligent, close
the file with date there. So that can destroy soon (period of time stated by law soc after which files can be
destroyed)
P’s sols
- Report completion
- Hand keys to P [or Tenancy Agmt]
- Pay stamp duty on Option [& mortgage] – check if bills paid
- Lodge documents
- Report registration particulars
- Send title deeds to mortgagee for safekeeping – rules determining who shld have title deeds. Where min sum
involved, CPF rather than bank shld have it
- Close file
(a) age- contracting with minor – contract is still enforceable by the minor but not against him
(b) mental capacity
(c) individual- bankrupt?
Company – has it been wound up?
Others
“Subject to contract”
- most clients will come to you with options fees paid but not yet exercised
- it will be better that the client sees the lawyer before he pays any fees so that you the lawyer can incorporate
the proper terms and conditions
FORM OF CONTRACT
Residential property act
Housing developers (control and licensing) act
Sale of commercial properties act
Mary ann case
Daiman development case
(b) Bankruptcy/ Company winding up/ Writ of Seizure and Sale/ Index Book Searches
Common law
(b) Recitals contained in Deeds more than 12 years old can be taken on their face value – s3 CLPA
Section 3(3) CLPA - Recitals, statements and descriptions of facts, matters and parties contained in deeds,
instruments, Acts or statutory declarations 12 years old at the date of the contract shall, unless and except so far as
they are proved to be inaccurate, be taken to be sufficient evidence of the truth of those facts, matters and
descriptions.
(c) Where personal representative selling more than 6 years after death of the owner – order of court required –
s35(2) CLPA
S 35(2) CLPA: No sale or mortgage of land belonging to the estate of a deceased person shall be made by the legal
personal representative of that person after the expiration of 6 years from his death unless with the sanction of the
court, or unless the sale or mortgage is made in pursuance of a power of sale or trust for sale or mortgage which is
expressly contained in or may be implied from the terms of the will of the deceased.
(d) Trustees selling under trustees Act – see s18 Trustees Act which provides that:
18. —(1) Where trustees are authorised by the instrument, if any, creating the trust or by law to pay or apply capital
money subject to the trust for any purpose or in any manner, they shall have and shall be deemed always to have
had power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust
property for the time being in possession.
(2) This section shall apply notwithstanding anything to the contrary contained in the instrument, if any, creating
the trust, but shall not apply to trustees of property held for charitable purposes.
Torrens system
- indefeasible title
Statutory prohibition
- s79(1) Legal Profession Act: Acting for housing developer and purchaser prohibited
79. —(1) Where a solicitor acts for a housing developer in a sale of immovable property developed under a
housing development, no specified person shall, in the sale of any immovable property developed under the
same housing development, act for the purchaser of the property unless a certificate of fitness for occupation in
respect thereof has been issued by the Commissioner of Building Control or other relevant authority. Until the
certificate of fitness received, cannot act for both the housing developer and the purchaser
- cf: in Hong Kong and other jurisdictions, acting for both to facilitate the contract
10,4 To provide that Option/Agreement is subject to The Singapore Law Society’s Conditions of Sale 1989
- if acting for Purchaser, to propose the risk only passes after completion of the purchase or that the Vendor is to
hold the proceeds of insurance policies for the benefit of the purchaser
10.6 Subject to satisfactory replies to legal requisitions, including Road and Drainage Interpretation
Plans and Land Transport Authority (Rapid Transit)
(b) Solicitor’s duty to client as regards legal requisition replies: Is the solicitor’s duty discharged by merely passing
over the legal requisition replies to the client?
- e.g. early completion date … to state that request is without prejudice to Purchaser’s rights under Option or
Agreement
- 12.Requisitions
Matters pending completion
on title
- Draft indenture of conveyance/transfer to be sent to V’s sols for approval.
- Mortgage and CPF docs finalised and signed by P.
- Completion account and mode of payment furnished by V.
- Writing to Bank & CPF Board to draw down on banking facilities / CPF funds.
- Final searches to be conducted.
- 13.stamping
Post completion:
of documents
- Registration of documents.
- Reporting on registration particulars.