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Q MY HOME is currently under joint tenancy between me and my mother.

I am planning to get married next year and my wife-to-be will be helping me repay the mortgage loan, which I am now repaying alone.

My bank has advised it is not possible to include my fiancee’s name in the mortgage documents without her being a tenant/owner of the property. I was told she would be required to purchase a portion of the estate and pay stamp duty on it. How will this affect the joint tenancy arrangement?

Since we are not selling the property but merely putting an additional owner’s name on the land title, why must she pay stamp duty?

What is the cheapest way to achieve our objective of giving her part ownership and allowing her to help with the repayment?

A Your mother and you can transfer a specified share in the property to your fiancee and continue to hold the balance untransferred share as joint tenants. For example, if 1 per cent is transferred to your fiancee, the end result is that your mother and you own 99 per cent of the property as joint tenants while your fiancee holds 1 per cent as a tenant-in-common.

Hence your joint tenancy arrangement with your mother need not be affected except that you become joint tenants of a reduced share in the property. A joint tenancy is a form of ownership where all co-owners have an equal interest in the property regardless of how much each co-owner contributed to the purchase of the property.

A tenancy-in-common is a form of ownership whereby each co-owner holds a separate and definite share in the property.

On the question of stamp duty, according to the Stamp Duties Act, a transfer of any interest (part or whole) in an immovable property is chargeable with stamp duty. Stamp duty is calculated based on the greater of the purchase price or the market value of the share transferred.

The transfer of a nominal share in the property (say, 1 per cent) to your fiancee will attract less stamp duty and enable you to achieve your objective with the lowest cost.

Lie Chin ChinPartner Lie Kee Pong Partnership

Changing hands

Types of home ownership

A joint tenancy is a form of ownership where all co-owners have an equal interest in the property regardless of how much each one paid.

A tenancy-in-common is a form of ownership whereby each co-owner holds a separate and definite share. Stamp duty A transfer of any interest in an immovable property is chargeable with stamp duty. It is calculated based on the greater of the purchase price or the market value of the share transferred. The transfer of a nominal share in the property will attract less stamp duty.

Q I AM currently living with my mum. After my dad died, my elder brother became the joint owner of the flat with my mum. He has since gotten married and moved out and I am now the joint owner of this flat with my mum. All my elder siblings are married and have bought their own houses.

My mum is in her 80s. When she dies, will I become the sole owner of the flat? Can HDB allow a flat to be owned by only one person? Do my siblings have legal rights to force me to sell the flat since I became the joint owner by way of a ‘gift’ (as stated in the house deed) from my dad?

A Co-ownership of property can be either as a joint tenancy or as a tenancy-in-common. In the latter case, each co-owner’s share in the property is predetermined and known from the very start.

The most significant and important difference between these two types of co-ownership is that in a joint tenancy, after the death of a co-owner, the remaining survivors take the dead person’s share and eventually the last and sole survivor takes all.

For a tenant-in-common, he can pass on his share by way of a will or according to the rules of intestacy. A co-owner who wants to pass on his interest in the property and not let the surviving co-owner take all, should therefore sever the joint tenancy, converting it into a tenancy-in-common.

You will first of all have to ascertain from the HDB lease whether you are a joint tenant or a tenant-in-common with your mother. I take it that when you use the word ‘joint owner’, you actually mean co-owner. If you are a joint tenant, you will become the sole owner upon her death.

If you are a tenant-in-common and it is your mother’s wish that you should be the sole owner upon her death, then your mother should make a will to that effect, so that there is no room for future ambiguity or dispute.

As you became an owner by way of a gift, that does not weaken your ownership. So long as there is an outright intention to make a gift together with delivery of the property, then that is an outright gift in every sense of the word unless there was an agreement behind the making of the gift to you.

In law, it is possible to make a gift to someone on the face of it but at the same time, if the recipient is told of a purpose or of some beneficiaries whom the maker of the gift really wants to benefit, you would then be said to be holding the property on trust. As this property is an HDB flat, no trust can be created without HDB’s prior approval and if so created, such a trust is void.

The HDB Act says there shall be no resulting or constructive trust of an HDB property as would arise if money is, say, contributed by one person but someone else is the owner of the HDB flat. This is understandable because the objective of the HDB is to provide affordable public housing and not to allow those with money to ‘invest’ in HDB flats behind a trust by using other people’s names.

Finally, although there has been a significant relaxation of HDB’s rules for singles to own flats, you should check with HDB about your eligibility to hold the flat as a single lessee. Much would depend on such factors as your age and the type of flat.

Source : Sunday Times - 2 Apr 2006