1 Overview

Lecture 1 Overview of Conveyancing Rules Common law o Law of Contract o Land Law

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Joint ownership Mortgages Landlord & Tenant

Others 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 A client will choose you over others because you are competent are efficient are able to anticipate and resolve problems charge reasonable fees – abolition of scale fees, previously conveyancers base fees on property price. So earn more the higher the price. But now scale removed. Pay money for service now merely. So clients pay depending on quality of service and experience provide value added services o (e.g. tell client after he dies, what happens to his property, tell client about issues like income tax and GST) o eg recommend other ancillary professionals that client may need in connection with purchase. Eg travel to client’s office, stay back to see client treat the client with respect, keep him informed and give him your personal attention. Being a good conveyancer is NOT merely doing and checking off what is in the checklists. You have to UNDERSTAND why what you are doing is in the checklist. THE SERVICES OF CONVEYANCING LAWYERS (undervaluation of conveyancing solicitor) -

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 -

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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 Solicitor carries out a series of checks and actions: 1) A title check, in case unknown to the client there has been a hostile caveat or two lodged against the property, if discovered after the sale agreement is signed, there may not be enough time for the vendor to get it uplifted • For eg. Property was transferred to the client in his capacity as the administrator of the estate of the person who owed the property and that 6 years have passed since the person died, thereby necessitating a court order under s. 35(2) of the Conveyancing & Law of Property Act (Cap. 61)

Land to devolve on death as chattels real. 35. —(2) 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. 2)

Asking pertinent questions: a) Whether he has mortgaged or charged his property b) Can he produce the title deeds if not earlier at least on completion c) Whether there is any dispute over the property between him and anyone else d) Any objection e) Check with the mortgagee or CPF Board what are the sums owed so that the client can work out whether the proceeds of the sale would be sufficient to enable him to transfer the title to the property to the purchaser free of the mortgage or charge f) Whether there are any problems regarding the title or condition of the property g) Whether there are tenants or other occupiers whom he may have trouble evicting in time for completion

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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) b) c) d) e)

advise the client on some basic tax, inheritance and estate duty laws and financial planning; whether property would best be purchased in is own name or jointly with his spouse’s or his children’s; 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 B4.purchaser’s solicitor, apart from doing some of the above, also:

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files a caveat to preserve his client’s interests in the property pending completion, sends to legal requisitions receives the original title deeds from the vendor’s solicitor and checks them checks completion account rendered by the vendor’s solicitor if sale is subject to an existing tenancy, takes care that the security deposit aid by the tenant is transferred to his client ensures that the client’s arrangements for payment of the purchase money are made including completing all security documents required by the mortgagee and/or CPF Board, all in time for release of the money on the completion date

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 Whole process goes on for a stretch of 6 to 12 weeks as a norm 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 Procedure follows a Timeline Pre-contract to conclusion of Contract - Post-contract to Completion & after (post completion – stamping, registration f documents, keeping of title deeds). o Completion – event tt occurs. Preparation for this takes place early, very thorough, so that actual transfer is properly done 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) What Vendor’s sols must do Parties negotiate terms Take instructions Prepare terms of sale (Option). Prepare your own! Different firms have different forms. Liaise with P’s sols – negotiate back and forth

19 Jul Option is granted. Vendor then purchaser. Ensure Option signed by V is granted in exchange for payment. Only can release when paid! 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  What Purchaser’s sols must do Parties negotiate terms Take instructions Vet terms of sale (Option) & advise P. make sure that eligible to buy the property! Eg residential property act – foreigner not allowed to purchase landed property. Also to ask whether they own HDB flat, this may preclude them fr purchasing private property. Will have to pay fine and may have flat confiscated. Also to check capacity. 21 to own real property! Liaise with V’s sols Advise P on financing – have access to a lot of information, so you need to know this. Service comes in here. 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 Completion takes place Hand keys to P & report 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

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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

(1) Categories of land 3 categories of land in Singapore (a) (b) (c)

freehold land leasehold land Statutory land grant: for perpetuity until the land is acquired by the government

(2) Systems of Registration of Land -

very important: first in time prevails 2 systems (1) the Common law system. Governed by CLPA. (2) the Torrens system. Governed by LTA and LTSA. all interests will be accorded priority according to time of registration

(3) Formation of contract

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most important thing is to note s6(d) of the Civil Law Act • i.e. contract for sale of land must be in writing sometimes where there is no formal contract, but a memorandum signed instead, the question is whether that memorandum is sufficient to enforce the bargain between the parties under S6 of CLA. Even if the memorandum is insufficient to satisfy S6 of CLA, part performance will enable the plaintiff to seek equitable remedies such as specific performance and injunction. Contracts which must be evidenced in writing 6. No action shall be brought against — • (d) any person upon any contract for the sale or other disposition of immovable property, or any interest in such property; or unless the promise or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person lawfully authorised by him.

(4) Capacity to form contract (a) (b) (c)

age- contracting with minor – contract is still enforceable by the minor but not against him mental capacity individual- bankrupt? Company – has it been wound up?

(5) Legal impediments Housing & Development Act (HDA): disqualifications Board may compulsorily acquire property sold subject to the provisions of this Part 56. —(1) The Board may compulsorily acquire any flat, house or other living accommodation sold subject to the provisions of this Part, whether before or after 2nd June 1975 — (a) if the owner thereof and his spouse, if any, has, in the opinion of the Board, ceased to occupy the same;

(b) if the owner thereof, his spouse or any authorised occupier has at any time, whether before or after 2nd June 1975, acquired whether by operation of law or otherwise any title to or an estate or interest in any other flat, house or building or land; (c) if the flat, house or other living accommodation has, without the prior written approval of the Board, been used otherwise than for the purpose permitted by the lease; (d) if the owner thereof has permitted any person other than an authorised occupier to reside or stay in the flat, house or other living accommodation; (e) if the owner thereof has failed to perform or observe any condition contained in the lease to be performed or observed on the part of the owner after a notice in writing has been sent by the Board drawing his attention to the non-performance or non-observance of the condition in the lease; (f) if the owner thereof has made a misleading or false statement in his application to the Board for the purchase of the same; (g) if the owner thereof has made a misrepresentation of a material fact, whether innocently or otherwise, to the Board relating to the purchase of the flat, house or other living accommodation; (h) if the owner thereof assigns, underlets or parts with the possession of the same or any part thereof without obtaining the prior written consent of the Board as required by the lease; (i) if, in the opinion of the Board, the flat, house or other living accommodation is not being occupied by such minimum number of persons or by such persons as the Board may require; (j) if the owner thereof has at any time, whether before or after 2nd June 1975, ceased to be a citizen of Singapore or if the owner thereof has, at any time whether before or after 1st May 1982, ceased to be a permanent resident of Singapore; (k) if the rent or any payment or any part thereof due to the Board reserved under the lease or mortgage remains unpaid for 3 calendar months after it is due and payable and the Board has sent a notice of demand in writing to the owner thereof; (l) if the purchase price or any loan for the purchase of the flat, house or other living accommodation has been paid in full or partially with any cash grant made by the Government to the owner and paid into the owner’s account with the Central Provident Fund pursuant to section 14 of the Central Provident Fund Act (Cap. 36) and the owner refuses or fails to return the money to the Government when he is required to do so under the terms of the grant; (m) if the owner thereof, his spouse or any authorised occupier above the age of 14 years has on or after 1st March 1984 been convicted of an offence under section 304A, 336, 337 or 338 of the Penal Code (Cap. 224) in connection with the throwing of any matter or thing from any property belonging to, sold by or leased from, the Board; or (n) if the owner thereof, his spouse or any authorised occupier has been convicted of an offence under any written law relating to immigration for giving food or shelter to any person who has entered, remained or stayed in Singapore in contravention of any written law relating to immigration or for assisting such person in any way to evade apprehension. [13/75;25/79; 12/82;21/86; 31/2002] (2) Subsection (1) (b) shall not apply to any owner or his spouse or any authorised occupier who has purchased or acquired, with the prior written consent of the Board, any commercial property not exceeding in value $250,000 or such higher value as the Minister may allow, and that commercial property is used or intended to be used by any such person for business purposes. [25/79] (3) Where the Board intends to exercise its powers of compulsory acquisition conferred by this section, the Board shall serve a notice in writing on the owner of the flat, house or other living accommodation and all persons known or believed to be interested in claiming all or any part of the compensation to be paid for the flat, house or other living accommodation (referred to in this Part as an interested person) stating the intention of the Board to acquire the premises and the compensation to be paid therefor. [13/75] (4) Any owner or interested person who objects to a proposed acquisition by the Board may, within 28 days after the service of a notice referred to in subsection (3), submit in writing to the Board precisely the grounds upon which he objects to the acquisition and the compensation offered by the Board. (5) The Board shall consider the objection and may either disallow it or allow it either wholly or in part, and shall serve the owner or interested person by post or otherwise with a written notice of its decision. (6) Any appeal by any owner or interested person aggrieved by the decision of the Board shall be made to the Minister within 28 days after the date of service of such decision on the owner or interested person and the decision of the Minister shall be final and not open to review or challenge on any ground whatsoever. (7) This section shall not limit or affect the powers conferred upon the Board by any other provision of this Act or under any other written law to exercise its right of forfeiture and right of re-entry for a breach of the conditions of a lease.

(8) The compensation to be paid by the Board for any flat, house or other living accommodation compulsorily acquired by the Board under this section shall be determined by the Board. (9) The Minister may direct the Board to exempt any person or class of persons from all or any of the provisions of this section. Executive Condo Housing Scheme Act – Disqualifications in s9 Compulsory acquisition of housing accommodation and vesting in Board 9. —(1) Where any housing accommodation under the executive condominium scheme has been purchased and the Minister is satisfied that — (a) any purchaser thereof or his spouse has ceased to occupy the housing accommodation within the minimum occupation period; (b) subject to subsection (10), any purchaser thereof or his spouse has at any time acquired, by operation of law or otherwise, any title to or an estate or interest in any flat, house, building or land; (c) the housing accommodation has been used otherwise than as a housing accommodation within the minimum occupation period; (d) any purchaser thereof has assigned, underlet or parted with the possession of the housing accommodation within the minimum occupation period without obtaining the prior written consent of the Minister; (e) any purchaser thereof has failed to perform or observe any term or condition contained in the agreement for the sale and purchase of the housing accommodation after a notice in writing has been served on him by the Board or the developer drawing his attention to the non-performance or non-observance of such term or condition; (f) any purchaser thereof has made a misleading or false statement in his application for the purchase of the housing accommodation; (g) any purchaser thereof has made a misrepresentation of a material fact, whether innocently or otherwise, relating to the purchase of the housing accommodation; (h) any purchaser thereof has contravened section 7 (1) (b); (i) any purchaser thereof has, within the minimum occupation period, ceased to be a citizen of Singapore; or (j) any purchaser thereof has failed to pay to the Board any premium under section 10, the Minister may direct the Board to compulsorily acquire the housing accommodation. (2) Where the Minister has made a direction under subsection (1) to compulsorily acquire a housing accommodation under the executive condominium scheme, the Board shall serve a notice in writing on the owner of the housing accommodation and all persons known or believed to be interested in claiming all or any part of the compensation to be paid for the housing accommodation stating the Board’s intention to acquire the housing accommodation and the compensation to be paid therefor. (3) The Board may — (a) lodge an instrument with the Registrar of Titles for the vesting in the Board of the title to or the estate or interest in the housing accommodation on the expiry of a period of 28 days after the date of service of the notice referred to in subsection (2); and (b) in the case where no assurance has been registered in favour of the owner, serve a written notice on the owner of the housing accommodation to terminate the sale and purchase agreement and to repossess the housing accommodation. (4) The Registrar of Titles shall register any instrument lodged under subsection (3) without being concerned to inquire into its regularity or validity, and upon its registration — (a) the title to or the estate or interest in the housing accommodation shall vest in the Board free from all encumbrances (save such subsisting covenants, conditions or restrictions, if any, as may be binding on the Board); and (b) the Registrar of Titles shall cancel the registration of any mortgage, charge or assurance thereby overreached and any caveat protecting a mortgage, charge or assurance registered or notified on the land-register. (5) The Board may deduct, from any compensation payable under this section, any administrative and legal costs reasonably incurred, and shall hold the remainder in trust to be paid according to the order of priority prescribed by the Minister. (6) The amount of compensation to be paid by the Board for any housing accommodation compulsorily acquired by the Board under this section shall be prescribed by the Minister. (7) Where any person entitled to any compensation payable under this section refuses to accept it or cannot with due diligence be found or where there is any dispute as to the apportionment of the compensation, the Board shall apply to the High Court ex parte by originating summons, supported by an affidavit, for an order to deposit the amount of compensation or any part thereof in court and, notwithstanding anything to the contrary in the Rules of Court for the time being in force, the High Court may make such an order. (8) Where any housing accommodation has been vested in the Board under this section, the Board may proceed to take possession of the housing accommodation on the expiry of a period of 30 days after the date of service of a

notice on the owner thereof and if any of the officers or agents of the Board is opposed or impeded in taking possession under this section of any housing accommodation, the Board may take such measures as are necessary to have the occupiers evicted from the housing accommodation and to enforce the surrender of the same and to remove all things and other movable property found therein. (9) For the purpose of ascertaining whether subsection (1) has been contravened, the Minister may direct the Board to enter upon any housing accommodation under the executive condominium scheme at any reasonable time upon production of its authority in writing. (10) Subsection (1) (b) shall not apply to a purchaser of any housing accommodation or to his spouse who has purchased or acquired, with the prior written consent of the Minister, any commercial property not exceeding in value $250,000, or such higher value as the Minister may allow, at the time of purchase. (11) For the purpose of this section, “purchaser” includes any sub-purchaser unless the context otherwise requires. Others (6) Pre-contractual negotiations stage “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 Tan Chwee Boon v Koh Peng Moh [1962] MLJ 353 Facts: Vendor’s solicitors forwarded the contract to the Purchaser’s solicitors for signature by the P. The sale was subject to contract. The P signed the contract and P’s solicitors returned the signed contract to the V’s solicitors with 10% deposit. V refused to sign the contract. P applied to ct for specific performance. Held (J Tan Ah Tah), applying Eccles v Byrant: • firstly no concluded contract between the parties; • secondly, no qn of any exchange of contract in Singapore as both parties signed both copies of the contract. ( in England, each of the parties signed only one copy of the contract and the solicitors then exchanged contract – concluded contract.) Tiverton Estates Ltd v Wearwell [1974] 2 WLR 177 FORM OF CONTRACT Residential property act Housing developers (control and licensing) act Sale of commercial properties act Mary ann case Daiman development case (7) Pre-contract searches (a)

Lot Base/ Title Searches – STARS, LAWNET, INLIS

(b)

Bankruptcy/ Company winding up/ Writ of Seizure and Sale/ Index Book Searches

(c)

Investigation of title

(8) Investigation of title Common law (a) 15 years search – s 3 CLPA Section 3(4) of CLPA: A purchaser of land shall not be entitled to require a title to be deduced for a period of more than 15 years or for a period extending further back than a grant or lease by the Crown or the State, whichever period is the shorter. (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 Qualified title – See s 25 of LTA Cautions and lapsing of cautions 25. —(1) Upon the creation of a qualified folio, the Registrar shall enter thereon a caution warning persons dealing with the registered proprietor therein named that the land comprised therein is held subject to any interest which affected it at the date of the creation of that folio, and so long as the caution remains on that folio that land shall be so held. (2) A caution recorded on any qualified folio (whether created under this Act or the repealed Land Titles Act (Cap. 157, 1985 Ed.)) shall lapse in one of the following ways: (a) if, after the crea Lim Kay Lip and Another v Lee Chee Peng and Another (Management Corp Strata Title Plan No 301, Third Party) [1994] 2 SLR 71tion of the qualified folio, a purchaser for valuable consideration and without fraud becomes registered as proprietor of an estate or interest in the land comprised in the folio, the caution shall lapse as regards the estate or interest on the expiration of 5 years after the date of the last deed which was cancelled by the Registrar on the creation of the folio; or (b) if, immediately before the expiration of 10 years after the creation of the qualified folio, the caution affecting the folio has not lapsed as regards all estates and interests in the land comprised in the folio or has not been cancelled, the caution shall lapse — (i) on the expiration of that period; or (ii) on the expiration of 24 months after 20th August 2001*, whichever is the later. *Date of commencement of section 8 of the Land Titles (Amendment) Act 2001 (Act 25 of 2001). (3) A mortgagee or chargee shall not be regarded as a purchaser for the purposes of subsection (2). (4) When a caution lapses under subsection (2), the lapsed caution shall constitute a defunct entry and the Registrar shall, of his own motion or after the lodgment of an application in the approved form made by the proprietor of the land, cause an entry to be made in respect of the lapsing of the caution. (5) Upon the lapsing of a caution under subsection (2), the folio shall cease to be qualified and the land comprised therein shall thenceforth be held subject only to such interests as are registered or notified on the folio and to such interests as are otherwise excepted by section 46. (6) Any person deprived of land by the operation of this section shall not by reason of that deprivation have any claim against the assurance fund. -

Cases mentioned in Manual (Under Investigation of Common law title)

(9) Formation of contract stage (a) Legal Professional (Professional Conduct) Rules 1998

S23 [Authority of client’s agent] Authority of client’s agent 23. An advocate and solicitor shall ensure that an agent giving instructions on behalf of a client has the required authority to do so and, in the absence of evidence of such authority, the advocate and solicitor shall, within a reasonable time thereof, confirm the instructions with the client., Conflict of interest 25. During the course of a retainer, an advocate and solicitor shall advance the client’s interest unaffected by — (a) any interest of the advocate and solicitor; (aa) where the advocate and solicitor is a director or an employee of a law corporation, any interest of the law corporation; (b) any interest of any other person; or (c) the advocate and solicitor’s perception of the public interest except where accepting the instructions may make it difficult for him to maintain his professional independence or would make it incompatible with the best interests of the administration of justice. s28 [Potential conflict of interests] Potential conflict of interests 28. When accepting instructions to act for more than one party in any commercial or conveyancing transaction where a diversity of interests exists between the parties, an advocate and solicitor shall advise each party of the potential conflict of interests and of the advocate and solicitor’s duty if such conflict arises.s29 [not to act for both parties], s30, s31 [not to act against client’s interests and not to act against client] problem when you leave a firm and go on to another firm the latter is acting the formers’ client it is not safe to act against the client 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. -

Terms and Conditions see the more important clauses

10.1 Price, whether subject to GST Price (whether it is inclusive of GST) if commercial property, to provide for GST clause if residential property, then it is exempted See Condition of Lawsoc conditions. 10.2 Expiry of option Another important term to be cautious is the expiry date of the option the money has to be paid in good time before the expiration of the option normally, the options are in standard form 10.3

Vacant possession or subject to tenancy?

10,4

To provide that Option/Agreement is subject to The Singapore Law Society’s Conditions of Sale 1989

10.4 Stakeholding clause (if acting for purchaser) benefit to purchaser of having such a clause. 10.5 -

Passing of risks When does the risk in the property pass?

10.6

• when possession given to the purchaser? • At the time the contract is made? it is an anomaly… the risk passes when the deposit is paid over and the contract is made… possession and completion may take another 7 to 8 weeks so the risk passes to the purchaser before he has possession of the property ==> when the option is exercised and the deposit is paid over 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 Subject to satisfactory replies to legal requisitions, including Road and Drainage Interpretation Plans and Land Transport Authority (Rapid Transit)

(a) What is unsatisfactory? -

there are lots of case law on this subject matter the problem is that the lawyers have been accepting formats by Housing Agents Various tests by the Courts, Must land actually be acquired for a reply to be unsatisfactory? What about safeguard line of road reserve?

(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? See Yeo Yoke Mui v Ng Liang Poh [1999] 3 SLR 529 Facts: The appellant Yeo was granted an option to purchase a property by Kong Hoo Pte Ltd (‘KH’). She instructed Ng to act for her. On 26 March 1997, Ng enclosed a copy of the road interpretation plan to Yeo informing her that the property was ‘affected by Categories 4 and 5 Road Proposal’. He did not say anything as to how the property would be affected. On 2 May 1997, Yeo entered into a sale and purchase agreement with KH and paid the balance of the 10% deposit to KH directly. On 30 May 1997, Yeo annulled the transaction on the ground that it was affected by the road reserves which required a buffer zone of 7.6 metres between the property and the side of the road to be set aside. Yeo sued KH and Ng. As against KH, the trial judge held that she was not entitled to annul the sale and purchase agreement and allowed KH’s counterclaim for damages for breach of contract. As against Ng, the judge held that Ng did not breach his duty. Yeo only appealed against the decision in Ng’s favour. Held: Allowing the appeal: (1) The only issue on appeal was whether Ng was in breach of his duty in failing to advise Yeo of the meaning of Category 4 road and the effect such a road had on the property. On the facts, Ng had a duty to advise Yeo on the effect of the road reserves as shown on the road interpretation plan. He would not be required to advise on whether the property could be redeveloped. His duty was to interpret the explanatory notes. (3) Even if he had advised Yeo on 2 May 1997, he would still fail in his duty as Yeo’s solicitor. He had almost six weeks to advise her but left such material advice till the last stage when she was about to sign the agreement to purchase the property, leaving Yeo with no opportunity to make an informed decision as to whether to proceed with the sale and purchase. (4) The standard of care expected of Ng was that of the reasonably competent conveyancing lawyer. Ng was clearly in breach of his duty to use reasonable care and skill in giving the necessary advice to Yeo. In a nutshell, this case stands for the authority that if interpretation plans are received by the lawyer, he should forward it to the clients and give them enough time to interpret it for themselves … otherwise, the lawyer would be in breach. very onerous duties: may even have to advise clients to get help from architects would be good for lawyer to state clients’ tolerance e.g. state that the client would not accept it if the front of the house if acquired. 10.7

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10.8

Type of property if landed or flat in a building of less than 6 storeys and not a “condominium” development, to provide for either warranty by Purchaser that he is a Singapore Citizen or that sale is subject to the Purchaser obtaining clearance form the Land Designs (Approval) Unit. Sale by vendor or vendor’s legal representatives:

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ensure that vendors are empowered to sell the property (if they are executors or administrators of a deceased), check S 35(2) CLPA, failing which to provide that completion subject to approval of the cts being obtained, and the completion period should take into account the same.

10.9 Estate Duty Clearance See EDA s 29(1) – Unless the estate duty is paid as provided in this Act, the estate duty payable in respect of any property passing on the death of a deceased person shall be a first charge on all the immovable property of the deceased coming to an executor or being under his control, so far as the duty payable by such executor is concerned, and on the property passing to any other person, so far as the duty payable by such other person is concerned. 10.10 Acquisition by State provide that property sold free of any notice of acquisition or intended acquisition by the state. In the event of any acquisition or intended acquisition, P has the right to elect not to complete the purchase. All monies paid under the contract to be refunded accordingly. 11.

Post contract amendments to option/ agreement

11.1

To specify further terms required to facilitate the transaction

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e.g. early completion date … to state that request is without prejudice to Purchaser’s rights under Option or Agreement on title 12.Requisitions Matters pending completion

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.