by Prof. Sook Yee Tan
This text is up to date as of May 1998
Kluwer Law International
The Hague • London • Boston
Property and Trust Law (February 2000) Singapore – 1
Tan Sook Yee B.A. (Mod) Trinity College Dublin,
LL.B. Trinity College Dublin, Barrister Middle Temple
and Advocate and Solicitor of the Supreme Court Sin-
gapore, Associate Professor at the National University
of Singapore, Faculty of Law was Dean of the Faculty
of Law, National University of Singapore from 1980 to
1987. She has taught Land Law and Equity and Trusts
for many years and has written extensively on these
subjects, including two books, Principles of Singapore
Land Law and Private Ownership of Public Housing in
Singapore. She is currently a member of the Strata Titles
Board and the Tenants Compensation Board.
Hans Tjio B.A. (Hons) Cambridge, UK; LL.M. Harvard,
USA, Barrister (Middle Temple) and Advocate and
Solicitor of the Supreme Court Singapore, Senior
Lecturer and Sub-Dean at the Faculty of Law, National
University of Singapore. He has taught at the Faculty
of Law, National University of Singapore since 1990
in areas such as banking, company, commercial and
contract law, and equity and trusts. He has also pub-
lished in local and overseas journals, including the Law
Quarterly Review and Journal of Business Law.
Property and Trust Law (February 2000) Singapore – 3
4 – Singapore Property and Trust Law (February 2000)
Table of Contents
The Authors 3
Table of Contents 5
List of Abbreviations 13
General Introduction 15
§1. General Background 15
I. Geography, History and Climate 15
II. Cultural Composition 16
III. Political System 16
§2. Legal Background of the Country 17
I. Constitutional Framework 17
II. Parliament and Legislative Process 18
III. Common Law and Judicial Process 19
IV. Executive Powers and Administrative Law 20
§3. Introduction to the Law of Property and Trust 21
I. Historical Origins and Evolution 21
II. Concept of Ownership 23
A. Unity and Fragmentation 23
B. Immovable and Real Property 25
C. Movable and Personal Property 26
III. Trust and Fiduciary Mechanisms 27
A. Trusts and Equitable Interests 27
B. Fiduciaries 28
IV. Possession and Title 29
Selected Bibliography 31
Part I. Immovable Property and Real Property 33
Chapter 1. General Classiﬁcation 33
§1. Classiﬁcation 33
§2. Land and Fixtures 34
Property and Trust Law (February 2000) Singapore – 5
Table of Contents
§3. State Lands 34
I. State Lands and State Leases 34
II. Grants in Fee Simple 35
III. Reversion to State 35
Chapter 2. Legal and Equitable Interests 37
Chapter 3. Registration Systems 40
§1. Registration of Deeds 40
I. In General 40
II. Reasons for Registration 40
A. Admissibility as Evidence of Title 40
B. Priority 41
III. Problems 42
§2. Land Titles Act 42
I. Bringing Land under the Land Titles Act 42
II. Qualiﬁed Titles 43
III. Effect of Registration 43
IV. Indefeasible Title 44
A. Assurance Fund 44
B. Overriding Interests 44
C. Exceptions 44
V. Unregistered Interests and Caveats 45
Chapter 4. Limited Interests 47
§1. Leases 47
I. Kinds of Leases 47
A. Fixed Term Lease 47
B. Periodic Lease 48
C. Tenancy by Estoppel 48
D. Reversionary Lease 48
II. Requirements for Validity 49
A. Exclusive Possession 49
B. Certainty of Duration 49
C. Formalities 50
III. Assignment and Sublease 50
A. Assignment 50
B. Sublease 51
IV. Determination of Leases 51
A. Expiration of Term 51
B. Notice to Quit 52
C. Surrender 52
D. Merger 52
E. Frustration 53
F. Forfeiture 53
6 – Singapore Property and Trust Law (February 2000)
Table of Contents
V. Rights of Landlord and Tenant 53
A. Implied Terms 53
1. By the Landlord 53
2. By the Tenant 54
B. Usual Covenants 54
C. Other Commonly Expressed Covenants 54
VI. Remedies for Breach of Covenant 55
A. Damages 55
B. Forfeiture 55
C. Distress 55
VII. Covenants and Successors in Title 56
§2. Licences 56
I. Nature and Types of Licences 56
II. Distinction Between a Licence and a Lease 57
III. Rights of Licensees 58
A. Gratuitous Licence 58
B. License Coupled with a Grant 58
C. Contractual Licence 58
D. Licence Coupled with an Equity 58
§3. Easements 59
I. Easement Distinguished from Other Rights 59
II. Characteristics of an Easement 60
III. Under General Law 61
A. Acquisition of Easements 61
B. Extinguishment of Easements 62
IV. Under the Land Titles Act 62
A. Acquisition of Easements 62
B. Extinguishment of Easements 63
V. Proﬁts a Prendre 64
§4. Restrictive Covenants 64
I. At General Law 64
A. Running of the Burden 64
B. Annexation of the Beneﬁt 65
C. Discharge of Restrictive Covenants 66
II. Under the Land Titles Act 66
A. Running of Burden 66
B. Annexation of Beneﬁt 67
C. Discharge 67
III. Remedies for Breach of Restrictive Covenant 67
Chapter 5. Security Interests 68
Property and Trust Law (February 2000) Singapore – 7
Table of Contents
Chapter 6. Joint Ownership 70
§1. Joint Ownership of Immovable Property 70
I. In General 70
A. Joint Tenancy 70
B. Tenancy in Common 71
C. Termination of Co-ownership 72
II. Co-ownership Applied to Apartment Buildings 73
A. In General 73
B. Strata Title Plan 74
C. Management Corporation 75
D. Maintenance and Sinking Funds 76
E. Meetings 76
F. Rights and Liabilities of Management Corporation Re
Common Property 76
G. By-laws 77
H. Rights and Obligations of Subsidiary Proprietors 78
I. Termination of the Strata Title Plan 79
§2. Joint Ownership of Movable Property 80
Chapter 7. Persons Who May Own Interests in Land 81
§1. General 81
I. Infants 81
II. Mentally Disordered Persons 81
III. Societies 81
IV. Partnerships 82
V. Married Women 82
§2. Under the Residential Property Act 82
Chapter 8. Planning and Development 85
§1. Under the Planning Act 85
§2. Land Acquisition 86
§3. De-control of Rent Control Premises 86
§4. Statutory Authorities Involved in Development 87
I. Urban Redevelopment Authority 87
II. Housing and Development Board 87
III. Jurong Town Corporation 87
IV. The Preservation of Monument Board 88
Chapter 9. Public Housing 89
§1. Housing and Development Board 89
I. General 89
II. Home Ownership Policy 89
A. Eligibility 90
B. Rights and Obligations of Owners 91
III. Management of Common Property 91
8 – Singapore Property and Trust Law (February 2000)
Table of Contents
§2. Middle Income Public Housing 92
I. Housing and Urban Development Corporation 92
II. Executive Condominium Housing Scheme 93
Part II. Movable Property and Personal Property/Chattels 95
Chapter 1. General Classiﬁcation 95
§1. Tangible Movable Property and Choses in Possession 95
§2. Intangible Movable Property and Choses in Action 95
I. General 95
II. Documentary Intangibles 96
§3. Funds 97
I. Money 97
II. Mixed Funds or Assets 98
§4. Chattels Real 98
Chapter 2. Legal Interests 100
§1. Ownership and Possession 100
§2. Sanctity of Legal Interests 100
§3. Special Property 101
§4. Bailment 101
§5. Co-ownership 102
Chapter 3. Equitable Interests 103
Chapter 4. Security Interests 104
Part III. Acquisition of Property Rights 105
Chapter 1. Transfer of Property by Contract INTER VIVOS 105
§1. Importance of Ownership 105
§2. Land 105
I. Sale by Non-developers 105
II. Sale of Units by Developers in Developments for Residential
and Commercial Purposes 107
A. Residential Developments 107
B. Commercial Developments 108
§3. Tangible Property: Chattels 109
I. General 109
II. Speciﬁc Goods 109
III. Unascertained Goods 110
Property and Trust Law (February 2000) Singapore – 9
Table of Contents
Chapter 2. Transfer of Property by Death 111
§1. Law Applicable to Adherents of the Muslim Faith 111
§2. In General 111
I. By Will 111
II. Intestate Succession 111
III. By Nomination 112
IV. Right of Survivorship 112
V. Donatio Mortis Causa 112
§3. Personal Representatives 113
I. Executors 113
II. Administrators 113
III. Estate Duty 114
Chapter 3. Possession 115
§1. General 115
§2. Constructive Possession 115
§3. Finding 116
Chapter 4. Gifts 117
§1. General 117
§2. Delivery 117
Chapter 5. Accession 118
§1. Land 118
§2. Chattels 118
Chapter 6. Expropriation 119
§1. Compulsory Acquisition of Land 119
I. Purposes for Acquisition 119
II. Compensation 119
III. Appeal 120
IV. Vesting of Title in State 120
§2. Other Forms of Expropriation 120
Chapter 7. Insolvency 122
Part IV. Trust and Fiduciary Mechanism 123
Chapter 1. Administration of Property/Trusts 123
§1. General 123
§2. Resulting Trust 124
10 – Singapore Property and Trust Law (February 2000)
Table of Contents
§3. Express Trusts 124
I. Certainty 125
II. Discretionary Trusts 125
III. Constitution 126
Chapter 2. Trusts Arising by Operation of Law 127
§1. Constructive Trust 127
I. Prevention of Fraud or Unconscionable Conduct 127
II. Breach of Fiduciary Duty 128
III. Constructive Trusteeship 129
Part V. Security 131
Chapter 1. Securities in Immovable Property 131
§1. Liens and Charges 131
I. Under General Law 131
II. Under the Land Titles Act 132
§2. Mortgages 132
I. Under General Law 132
A. Formalities 132
B. Equity of Redemption 133
C. Mortgagee’s Remedies 133
D. Discharge of Mortgages 134
II. Under the Land Titles Act 134
III. Priority of Mortgages and Charges 135
A. Under General Law 135
B. Under the Land Titles Act 135
IV. Transfers of Mortgages and Sub-mortgages 135
V. Reverse Mortgages 135
Chapter 2. Securities in Movable Property 136
§1. General 136
I. Rationale for Security 136
II. Types of Security 136
§2. Charges 137
I. General 137
II. Charge over One’s Own Indebtedness 138
III. Registration and the Perfection of Security 139
A. Individuals 139
B. Companies 140
IV. Floating Charge 140
A. Conceptual Basis 140
B. Characteristics 141
Property and Trust Law (February 2000) Singapore – 11
Table of Contents
C. Fixed or Floating? 141
D. Priority of the Floating Charge 142
V. Negative Pledge 143
§3. Pledge 143
I. General 143
II. Creation of a Valid Pledge 144
III. Usual Settings for Pledges 145
IV. Attornment 145
V. Registration 146
VI. Continuance of Pledge 146
VII. Trust Receipts and Letters of Hypothecation 146
§4. Quasi-security 147
I. General 147
II. Retention of Title 147
III. Direct Payments 148
IV. Flawed Asset and Netting (Set-off ) Arrangements 148
V. Quistclose Trust 149
§5. Assignments of Choses in Action 149
I. General 149
II. Statutory Assignments 150
III. Assignment in Equity 151
IV. Unassignable Choses in Action 153
V. Subject to Equities 153
VI. Priorities 154
12 – Singapore Property and Trust Law (February 2000)
List of Abbreviations
AC Appeal Cases
All ER All England Law Reports
Cap. Chapter in the Singapore Statutes
CLR Commonwealth Law Reports
Ch/Ch D Reports of the Chancery Division
DLR Dominion Law Reports
ER English Reports
FMSLR Federated Malay States Law Reports
KB Reports of the King’s Bench Division
Ky. Kyshe Reports
LQR Law Quarterly Review
MLJ Malayan Law Journal
Mal. LR Malayan Law Review
Modern LR Modern Law Review
QB/QBD Reports of the Queen’s Bench Division
SAc.LJ Singapore Academy of Law Journal
SJICL Singapore Journal of International and Comparative Law
SJLS Singapore Journal of Legal Studies
SLR Singapore Law Reports
SSLR Straits Settlements Law Reports
WLR Weekly Law Reports
Property and Trust Law (February 2000) Singapore – 13
List of Abbreviations
14 – Singapore Property and Trust Law (February 2000)
§1. General Background1
I. Geography, History and Climate
1. Singapore is a tiny Southeast Asian city-state of only 648 km2, with a total
population of about 3 million citizens and permanent residents, giving an average
population density of 4,630 inhabitants per km2 living in a 100 per cent urban
environment. The country consists of one main island and about 60 other much
smaller ones. Most of the population lives on the main island of Singapore which
lies at the southern end of the Malay Peninsula, at the very southern-most point of
the European-Asian continent. To the south lies its giant neighbour Indonesia, and
to its north is Malaysia, with which country Singapore shares a great part of its
history. Inhabited possibly as early as the 3rd century, Singapore acquired its present
name (which means ‘Lion City’) by the end of the 14th century. In 1819, the British
claimed possession of Singapore as a colonial trading post.
1. This section and the one that follows immediately is an amended version reproduced from
Medical Law by Terry Kaan International Encyclopaedia of Laws (Singapore).
2. Except for the Japanese Occupation of the city from 1942 to 1945, Singa-
pore remained under British rule until self-government was granted by the British
in 1959. Four years later, the British relinquished all remaining claims to Singapore
when it voluntarily entered into a federal union with the states of the then Federa-
tion of Malaya, and two other British territories in Borneo to form the new Fed-
eration of Malaysia. This merger with Malaysia was, however, to last for only two
years. As a result of unresolved political tensions, Malaysia and Singapore decided
to go their own separate ways, and Singapore became an independent sovereign
republic on 9 August 1965. A month later, Singapore was admitted to the United
Nations as a Member State in its own right. This constitutional devolution from
Malaysia was achieved peacefully, and with the agreement of the Malaysian federal
government, with which it retains close and cordial relations, both bilaterally and
in the context of the regional grouping, the Association of South East Asian Nations
3. Situated only about 137 km from the equator, Singapore is in the equatorial
rain forest climatic zone, and enjoys constant tropical climate conditions the year
Property and Trust Law (February 2000) Singapore – 15
4–6 General Introduction, General Background
round, with high levels of rainfall (2,300 mm annually) and average daily temperature
varying little from 26˚C: the daily variation between 24˚C and 31˚C is greater than
the annual variation.
II. Cultural Composition
4. Singapore is an atypical Asian country on many counts: its tiny size, its
population density, its wholly urban environment, its high level of economic and
social development, but most of all, the diversity of its peoples, races, cultures and
religions. The great majority of its inhabitants are descendants of immigrants from
other Asian lands who came to Singapore during British colonial rule. The result
is a country which is ethnically and culturally very diverse. About 77 per cent of
the population is of Chinese descent, 14 per cent of Malay or Indonesian descent,
7 per cent of Indian descent and the remaining 2 per cent of other ethnic groups.
Most of the ethnic groups in Singapore retain to a large degree their cultural
heritage (including their native languages), helped by the government policy of
encouraging Singaporeans to retain their cultural roots and languages.
5. The country has four national languages: Mandarin (Chinese), Malay, Tamil
and English. The language of law, government and public life is English. The
literacy rate for men is about 96 per cent, and about 87 per cent for women. All
school children receive their education primarily in English, but are also required
to study their mother tongue under the long-standing government policy of bilin-
gualism. Given the degree of cultural and ethnic diversity, it is not surprising that
there is also a high degree of diversity in the religions practised by its inhabitants:
more than half (54 per cent) of Singaporeans subscribe to either Buddhism or
Taoism (or both), 15 per cent are of the Islamic faith, 13 per cent are Christians,
3 per cent are Hindus, with about 0.5 per cent being adherents of other faiths such
as Judaism. A signiﬁcant proportion of the population (14.5 per cent) profess to
having no religion at all. This diversity of the population is signiﬁcant from the
perspective of the formulation of many policies and laws, as laws have to accom-
modate the beliefs and values of diverse cultures and religions.
III. Political System
6. In common with many members of the British Commonwealth of Nations
(now simply the ‘Commonwealth’) which achieved independence from Britain
between the 1950s to the 1970s, Singapore inherited a written Constitution of the
‘Westminster’ model, which establishes the structure of government and legal
authority, and of the organs of state. It provides for the division of the organs of
state into the President and Parliament, the Executive and the Judiciary. This writ-
ten Constitution is the ‘supreme law of the Republic of Singapore’, and further
provides that any inconsistent law enacted by the legislature after the coming into
force of the Constitution should be void to the extent of the inconsistency.
16 – Singapore Property and Trust Law (February 2000)
Legal Background of the Country, General Introduction 7–11
7. In general, the constitutional framework ordained by the Constitution bears
many points of resemblance to its unwritten British model, with a democratic
system of government centred about the free election through universal adult suf-
frage of members to an unicameral Parliament which is the sole legislature. Follow-
ing a constitutional amendment in 1991, the ofﬁce of the elected President (who is
the Head of State) was introduced, so that Singapore citizens now vote for their
members of Parliament and for the President in separate elections.
8. The assent of the elected President is required for the passage of certain
measures by Parliament, but otherwise the legislative powers and functions of the
state is largely in the hands of Parliament. As in the British model, the Executive
branch comprises the Prime Minister and his Cabinet. By the terms of the Consti-
tution, the President is to appoint as Prime Minister a Member of Parliament ‘who
in his judgement is likely to command the conﬁdence of the majority of the Mem-
bers of Parliament’. The members of the Prime Minister’s Cabinet are then ap-
pointed by the President acting in accordance with the advice of the Prime Minister.
9. The life of each Parliament is for a maximum of ﬁve years, after which fresh
general elections must be held to elect a new Parliament. Since independence, the
People’s Action Party have been re-elected to power in every general election. The
ﬁrst (and current) elected President, Mr. Ong Teng Cheong, was elected in 1993.
Under the Constitution, all judicial power is vested in the Supreme Court and in
such subordinate courts as may be provided by law.
§2. Legal Background of the Country
I. Constitutional Framework
10. The legal background of Singapore is unusually complex because of Singa-
pore’s somewhat complex legal history during the colonial era. At various times,
it has been governed from the Colonial Ofﬁce in British India, and has been a part
of the Straits Settlements (which linked various British possessions along the Straits
of Malacca), Japanese occupied territory, British Military Administration territory,
a British Crown Colony, a self-governing British dependency, a component state of
the Federation of Malaysia, and ﬁnally a sovereign and independent republic. The
Constitution itself is derived from the old pre-independence State constitution, the
Federal Constitution of Malaysia and other constitutional documents, and was not
issued in its current single-document form until 1979.
11. Except for the Japanese Occupation during World War II, every phase of
Singapore’s legal history has left its mark on the country’s legal inheritance and
contributed to its sources of laws. The Constitution recognizes as valid laws not
only those laws enacted by the Singapore Parliament, but also ‘any legislation of
the United Kingdom or other enactment or instrument whatsoever which is in opera-
tion in Singapore and the common law in so far as it is in operation in Singapore
and any custom or usage having the force of law in Singapore’. Consequently,
Property and Trust Law (February 2000) Singapore – 17
12–15 General Introduction, Legal Background of the Country
unlike in civil law countries, the source of law is not restricted primarily to the acts
of the national legislature but encompasses a wide range of other sources of law,
which are now discussed below.
II. Parliament and Legislative Process
12. Currently, the primary body of written law in Singapore comprises the Acts
of Parliament and the enactments, instruments, ordinances or other written law
which were part of the formal body of colonial laws at the time of independence.
All federal laws of the Federation of Malaysia which were in force at the time of
Singapore’s separation from Malaysia in 1965 continue to apply, unless of course
13. Most regulatory Acts and other written laws vest the relevant Minister in
charge with the power to make rules relating to the objects of the Act or other
written law in question without the rules having to be approved directly by Parlia-
ment. Although these rules (known as subsidiary legislation) are formulated and
laid down by the Executive branch of the government, they nonetheless have the
status of written law under the Constitution as they are issued under the general
authority of Parliament in the governing Act or other written law. These rules may
also be changed or revoked without the consent of Parliament.
14. A large number of the current Acts of Parliament are statutory instruments
(enactments, ordinances, instruments and the like) which were enacted by the co-
lonial government before independence, and these continue in force as law unless
they are repealed by Parliament. Few of them have been. One hallmark of the
constitutional and legal system in Singapore has been its remarkable pragmatism,
continuity and stability – Singapore has in its current body of written law statutory
instruments from every phase of its history except the Proclamations and Decrees
issued by the Japanese Occupation Forces during World War II.
15. Apart from written laws made in or for Singapore, the Constitution also
refers to ‘legislation of the United Kingdom . . . which is in operation in Singapore’
as also forming part of the body of the written law of Singapore. Prior to 1993,
there was some difﬁculty in determining exactly what British legislation was cov-
ered under this provision. Firstly, English law statutes in force in England as at
1826 became part of the law of Singapore by virtue of the Second Charter of
Justice which was issued in that year. In consequence, Singapore today retains
some statutory provisions which have long since vanished in England. Secondly, by
virtue of the Civil Law Act in its pre-1993 amendment form, it was provided that
English law statutes relating to certain speciﬁed areas of law (notably banking,
commercial and mercantile law) should have application to Singapore. The laws
which were to be applicable were not speciﬁed by name, resulting in some un-
certainty as to whether a given English statute applied in Singapore or not. In
1993, matters were considerably cleared up by the enactment of the Application of
English Law Act 1993, which speciﬁed the English statutes having application in
18 – Singapore Property and Trust Law (February 2000)
Legal Background of the Country, General Introduction 16–20
Singapore, as well as the necessary consequential amendments for their adoption to
the local context.1
1. Cap. 7A 1994 Rev Ed.
16. Since the enactment of the Application of English Law Act in 1993 hardly
any English statutes are applicable. Nonetheless, the continued (and continuing)
reception of English law has had a signiﬁcance inﬂuence on the shape of the
development of the common law, which continues to be a primary source of prop-
erty law in Singapore.
III. Common Law and Judicial Process
17. Like most other member nations of the Commonwealth, Singapore has a
common law legal system like its English parent and model. By this is meant that
the courts not only apply written laws in deciding a case, but also the huge body
of judicial precedents (previous decisions by courts in Singapore, England and
other applicable jurisdictions) that constitute the body of the common law. In the
common law tradition, legislation enacted by Parliament only provide for a general
framework: the constitutional assumption is that it is for the courts to ﬂesh out this
general framework into a more detailed one with each precedent that they set and
add to the body of the common law.
18. Some very important and large areas of Singapore law lie almost entirely
in the realm of common law, in that there is little or almost no governing legisla-
tion. Instead, the common law is the only law in such areas – examples of such
areas of law include the entire ﬁelds of contract law and tort law. Traditionally, in
the absence of a local precedent on a given point of common law, the Singapore
courts have looked to English common law: this approach had its basis not only in
judicial custom, but also as a result of express provisions under the pre-1993 Civil
Law Act and also by virtue of the 1826 Second Charter of Justice, both of which
effectively provided that English common law was to be applied in Singapore as
it was in England at the relevant time.
19. The position may now be different with the passage in 1993 of the Appli-
cation of English Law Act, which has a consolidating effect on the application and
reception of English law in Singapore. Firstly, the Act provides (in Section 3(1) )
that the ‘common law of England . . . so far as it was part of the law of Singapore
immediately before 12th November 1993, shall continue to be part of the law of
Singapore’. However, the Act goes on (in Section 3(2) ) to specify that after that
date, English common law shall continue to be in force in Singapore ‘so far as it
is applicable to the circumstances of Singapore and its inhabitants and subject to
such modiﬁcations as those circumstances may require’.
20. The net result of these provisions is that the Singapore courts are now
expressly authorized to reject English common law precedents if they think that the
Property and Trust Law (February 2000) Singapore – 19
21–24 General Introduction, Legal Background of the Country
English doctrines would be inappropriate for Singapore. In recent years, the Sin-
gapore courts have signalled a willingness to consider Canadian or Australian
precedents instead of English ones. A recent signiﬁcant example in the ﬁeld of tort
occurred when the highest court in Singapore, the Court of Appeal, expressly
declined to follow English approach to the awarding of damages for defects in
property causing pure economic loss in the case of RSP Architects Planners &
Engineers v. Ocean Front Pte. Ltd.  1 SLR 113. Instead, the court drew on
precedents established in Australia, New Zealand and Canada for its decision.
21. Under Article 93 of the Constitution, all judicial power in Singapore is
vested in the Supreme Court and in such subordinate courts as may be provided for
by law. There are basically two levels to the national court system. At the higher
level is the Supreme Court, which consists of the High Court, and the Court of
Appeal. The High Court has original jurisdiction (it is a court of ﬁrst instance) as
well as appellate jurisdiction (it hears appeals from the Subordinate Courts) in both
civil and criminal matters. The Court of Appeal hears appeals in both civil and
criminal matters from the High Court, and is the highest court of appeal in the
country. The High Court and the Court of Appeal have unlimited competence and
jurisdiction. The High Court also exercises general supervisory and revisionary
jurisdiction and powers over the Subordinate Courts.
22. The Subordinate Courts consists of the District Courts, Magistrate Courts,
Juvenile Courts, Coroners’ Courts and Small Claims Tribunals. In civil matters, the
District Courts are limited to hearing claims for sums not exceeding S$100,000
(about US$65,000), and the Magistrate Courts to claims not exceeding S$30,000
(about US$19,500), unless the parties to the action agree otherwise. Until recently,
the highest court of appeal for civil matters was the Privy Council in England – this
route of appeal was repealed by the Judicial Committee (Repeal) Act 1994, leaving
the Singapore Court of Appeal as the ﬁnal court of appeal in Singapore.
IV. Executive Powers and Administrative Law
23. In the Westminster constitutional model, the Executive power of the state
lies in the hands of the Prime Minister and his Cabinet. Ministers of the Cabinet
are given charge of various ministries whose jurisdiction is delimited not by the
legislation but by the Executive. The role of the Executive branch in the day-to-day
regulation and supervision in Singapore is signiﬁcantly enhanced by the legislative
practice of generally including in each Act of Parliament an empowering clause
giving the relevant Minister the power to make rules and regulations for the achieve-
ment of the objects of the Act of Parliament in question.
24. These powers to frame rules and regulations are generally granted in broad
terms, and the rules and regulations are known as subsidiary regulations and have
the same force of law as the parent Act (known as the primary legislation). The
enabling Acts generally provide for the subsidiary legislation to take effect simply
by being gazetted or published in the required statutory form by the Minister. Such
20 – Singapore Property and Trust Law (February 2000)
Introduction to the Law, General Introduction 25–27
subsidiary legislation generally ﬂesh out the regulatory framework or machinery
broadly spelt out in the parent Acts.
§3. Introduction to the Law of Property and Trust1
I. Historical Origins and Evolution
25. Singapore having been a colony of Great Britain from 1824 to 1959 is a
common law country. The reception of English law is attributed to the Letters
Patent issued on 27 November 1826 more commonly known as the Second Charter
of Justice 1826. This established a system of courts in the then Straits Settlements
of Penang, Singapore and Malacca with jurisdiction to hear and determine civil and
criminal cases similar to that possessed by the English courts and to ‘give and pass
judgement according to justice and right’ in civil cases. This has been interpreted2
to mean that the law of England (common law and statutes) and equity as they
stood on 27 November 1826 were part of the law of Singapore. The English law
that was received was subject to modiﬁcation by local legislation and custom.3 The
reception of pre-1826 English law accounts for the land law in Singapore being
based on the doctrines of estate and tenure.
1. For a fuller account of the reception of English law into Singapore see H. Chan, The Legal
System of Singapore, 1995; G.W. Bartholomew, Introduction in Tables of the Written law of the
Republic of: 1819–1971 Volume 1-Local Legislation Singapore. E. Srinivasagam (ed.) Law
library University of Singapore, 1972.
2. Regina v. Willans (1858) 3 Ky. 16.
3. Yeap Cheng Neo and Ong Cheng Neo (1875) LR 6 PC 381.
26. Although it was established that the Second Charter of Justice only brought
in pre-1826 English common law, statutes and equity nevertheless in practice post-
1826 English statutes continued to be applied in commercial matters because the
local judges and lawyers were English trained. This was regularized by Section 6
Civil Law Ordinance 1878 which became Section 5 Civil Law Act.1 This provision
directed the courts to apply the current English law in all mercantile issues unless
there was local legislation on the matter. The section expressly excluded the appli-
cation of English law relating to the tenure or conveyance or succession to any
immovable property or any estate or interest therein. In addition to Section 5 Civil
law Act sections incorporating current English law appeared in certain local statutes,
e.g., Section 101(2) Bills of Exchange Act.2 Thus while in regard to commercial
law which concerns personal property post-1826 English statutes were part
of Singapore law, in regard to land this was not the case. No post-1826 English
statute relating to land applied in Singapore. This was the position until the enact-
ment of the Application of English Law Act in 1993.
1. Cap. 43 1988 Rev Ed. before the enactment of the Application of English law Act 1993.
2. Cap. 23 1985 Rev Ed.
27. The Application of English Law Act removed the uncertainty surrounding
the question as to what English statute was still applicable. This was a particularly
Property and Trust Law (February 2000) Singapore – 21
28–29 General Introduction, Introduction to the Law
vexing issue in regard to commercial law.1 In land law the irritation was having old
archaic English statutes as part of the law when in England the statutory provisions
had been modernized.2 The Application of English Law Act addressed these prob-
(i) repealing Section 5 Civil Law Act and stating clearly that no English statute
was applicable except as provided in the Act itself,
(ii) providing for the continued reception of English common law and equity as
it stood on 12 November 1993,
(iii) providing a list of English statutes that still form part of Singapore law,3
(iv) stating the extent of their applicability and
(v) incorporating modernized versions of old English statutes that were applica-
ble into existing local statutes.4
But although the Application of English Law Act has ended the automatic reception
of English commercial statutes yet Singapore commercial law is very much based
on English law since many of the local legislation are drawn from their English
counterparts and in any event some of the English statutes formed part of Singapore
law under the Application of English Law Act itself until they were re-enacted,5
with some modiﬁcations, as local legislation. These factors combined with the
continued reception of English common law and equity have the consequence that
in commercial matters Singapore law generally reﬂects English law.
1. Much has been written on this subject e.g. G.W. Bartholomew, ‘The Singapore Statute Book’
(1984) 26 Mal LR 1, Chan Sek Keong, ‘The Civil Law Ordinance Section 5(1): A Re-appraisal’
 MLJ lvii; Soon and Phang, ‘Reception of English Commercial Law in Singapore – A
Century of Uncertainty’ in The Common Law in Singapore and Malaysia, ed. Harding at pp.
34–70; Phang, ‘Thereotocal Conundrums and Practical Solutions in Singapore Commercial Law:
A Review and Application of Section 5 of the Civil Law Act (1988) 17 Anglo-Am L R 251.
2. E.g. the provisions of the Statute of Frauds were incorporated into the Law of Property Act 1925
England which was not applicable in Singapore.
3. These concern commercial law, e.g. Unfair Contract Terms Act 1977, Misrepresentation Act
1967, Sale of Goods Act 1979, Partnership Act 1890, Carriage of Goods by Sea Act 1992. Some
of these have been re-enacted as Singapore Acts, e.g. Sale of Goods Act Cap. 393 1994 Rev
Ed., Partnership Act Cap. 391 1994 Rev Ed.
4. Section 6bB Civil law Act Cap. 43 1994 Rev Ed. replaces Sections 7, 8, and 9 Statute of Frauds
5. E.g. Partnership Act Singapore Statutes Cap. 391 1994 Rev Ed., Unfair Contract Terms Act
Cap. 396 1994 Rev Ed., Misrepresentation Act Singapore Statutes Cap. 390 1994 Rev Ed., Sale
of Goods Act Cap. 393 1994 Rev Ed.
28. The continuous reception of English principles of equity from 1826 caused
the whole body of trusts law and equitable remedies to be part of Singapore law.
However as apart from commercial law English legislation enacted after 1826 did
not apply, English statutes such as the Trustees Act 1925 and the Trustees Invest-
ments Act 1961, Charities Act 1960 are not applicable in Singapore. There are local
statutes which in the main follow the English counterparts covering these topics.1
1. Trustees Act Cap. 337 Rev Ed., Charities Act Cap. 37 1985 Rev Ed.
29. Thus in regard to both immovable and movable property English law and
equity form the basis of the law in Singapore. Generally the local statutes follow
22 – Singapore Property and Trust Law (February 2000)
Introduction to the Law, General Introduction 30–33
counterparts in England, e.g., the Sale of Goods Act1 and the Conveyancing and
Law of Property Act.2 There is however one main exception in regard to land.
Instead of following the English system of land registration, Singapore adopted the
Torrens system which originated in New South Wales Australia. This is the Land
Titles Act3 and its sister Act the Land Titles (Strata) Act.4 On this account case law
from other jurisdictions which also have the Torrens system of land registration are
of persuasive authority.
1. Cap. 393 1994 Rev Ed.
2. Cap. 61 1994 Rev Ed.
3. Cap. 157 1994 Rev Ed.
4. Cap. 158 1988 Rev Ed.
30. To sum up, the law in Singapore with regard to land and personal property
is based on English common law and equity. Certain English statutes were part of
the law of Singapore and after the enactment of the Application of English Law Act
in 1993 those English statutes which are listed in the Second Schedule of the Act
remain on our statute book, others have been incorporated into relevant local statutes.
II. Concept of Ownership
A. Unity and Fragmentation
31. Ownership is the term for rights which the law recognizes in the person
who is called the owner of the object. The law protects the rights of the owner of
the object, e.g., a car in regard to his rights of possession and exclusive user. The
content of rights that make up ownership varies with whether the object owned is
movable property or land. In regard to chattels there is absolute ownership.
32. In regard to land the object of rights is not directly the land itself but as
estate in the land. This is feudal concept which is at the very root of land law. An
individual owns an estate in fee simple, or an estate in perpetuity or a leasehold.
The law protects with its trespassory rules the rights of the owner of these different
periods of time in the land. All land belongs to the State which alienates parcels
to individuals either in perpetuity under the State lands Act or by way of leases
under the State Lands Act. Fee simple estates which were granted before 1902 still
1. See below Part I Chapter 1 General Classiﬁcation.
33. Thus there are three types of estates in land in Singapore, viz., the fee simple
estate, the estate in perpetuity and the leasehold. The rights of the owners of these
estates vary. For example, the fee simple estate is not affected by the conditions and
covenants set out in the State Lands Act1 as are the estate in perpetuity and the
State lease. Nevertheless the owners of all these types of estates would have rights
of (i) exclusive possession, (ii) transfer inter vivos and (iii) transmissibility on
death. The content of ownership rights also depends on whether the property are
Property and Trust Law (February 2000) Singapore – 23
34–36 General Introduction, Introduction to the Law
leaseholds of Housing and Development property2 or come under the special
1. Cap. 314 1985 Rev Ed.
2. Housing and Development Act Cap. 129 1997 Rev Ed. and see below Part I Chapter 8 Public
3. Executive Condominium Housing Scheme Act 10 of 1996. See below Part I Chapter 8 Public
34. Because of the doctrine of estates in land, interests in land may be alienated
as interests in possession or as future interests. Thus assuming that A has a fee
simple interest in Blackacre, A may grant a life interest to B with remainder to C
absolutely. In law, the fee simple being the largest estate in land lesser estates such
as the life estate may be carved out of it.
35. The divisibility of ownership of property into present and future ownership
depends on the nature of the property, i.e., real or personal and on whether the
context is common law or equity. At common law the concept of estates is not
applicable to personalty (which would include the leasehold), hence at law no
future interests can be created out of personalty. But in Equity, using the trust,
future interests may be created in all forms of property. Thus in Singapore with the
doubt as to whether real property exists and with the prevalence of grants in
perpetuity and leases, future interests in immovable as well as movable property are
created under trusts.1
1. See above.
36. The restriction on the capability to create future interests lies in the rule
against perpetuities which was held to be part of the law in Singapore in Choa
Choon Neo v. Spottiswode.1 Thus in regard to the vesting of an interest in any
property the rule requires that the interest must vest if it vests at all within the
perpetuity period of a life or lives in being plus 21 years and a period of gestation
if any.2 The rule against perpetuities has two other aspects, viz., the rule against
perpetual trusts and the rule against accumulations. All three aspects of the rule use
the same measurement for the perpetuity period. The rule against perpetual trusts
requires that all trusts must not last for a period longer than the perpetuity period.
Thus a trust of an estate in perpetuity in Blackacre to be used for the worship of
my ancestors will be bad unless it is restricted to the perpetuity period. Similarly
where a settlor has instructed his trustees to accumulate income from capital and
to pay the accumulated income and capital to beneﬁciaries the accumulation must
not exceed the permitted period. While the rule against perpetuities has been re-
tained in England as in most of the common law countries, it has been modernized
and placed in legislative form with some of the anomalies removed.3 However in
Singapore there has been no modernization of the rule by statute except for the
companion rule against accumulations.4
1. (1868) 1 Ky 216, afﬁrmed by the Privy Council in Ong Cheng Neo v. Yap Cheng Neo (1872)
1 Ky 326.
2. Cadell v. Palmer (1833) 1 Cl & Fin 372.
24 – Singapore Property and Trust Law (February 2000)
Introduction to the Law, General Introduction 37–39
3. E.g. the Perpetuities and Accumulations Act 1964 in England which inter alia allows for an
alternative ﬁxed period of 80 years and for the wait and see approach to vesting.
4. Section 69A Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.
B. Immovable and Real Property
37. The traditional common law classiﬁcation of property is real and personal.
By the Second Charter of Justice 1826 the doctrine of estates in land, the division
of property into real and personal, were received into Singapore. Thus as stated
above, ownership of land is more accurately described as ownership of estates in
land. While estates in fee simple historically form part of realty, because of a quirk
of English legal history leasehold interests in land are personal property rather than
1. See above Historical Origins and Evolution.
38. However Section 35(1) Conveyancing and Law of Property Act1 which
deems all land as chattels real for the purposes of devolution to the personal
representatives and which replaces heirs with personal representatives, altered the
devolution of real property on the death of the person. Henceforth all property real
or personal devolved on the personal representatives of the deceased and were
ultimately distributed by the personal representatives either according to the will of
the deceased or according to the laws of intestate succession. At this point the
practice developed of interests in land being treated similarly as personal property
and accordingly were given to the next of kin of the deceased rather than the heir.
This practice was upheld by the courts2 and eventually in 1970 the Intestate Suc-
cession Act, endorsed decades of practice.3 Thus the concept of heirs was relegated
to history. The fundamental differences between real and personal property are thus
1. Cap. 61 1994 Rev Ed. This provision superseded Section 1 Indian Act 20 of 1837.
2. Syed Ali bin M Alsagoff v. Syed Omar bin M Alsagoff (1918) SSLR 103.
3. Sections 5 & 7 Intestate Succession Act Cap. 146 1985 Rev Ed. repealed the Statutes of
Distribution and set out the classes of persons who are entitled to the estate movable and
immovable of the deceased intestate.
39. Consequent to the removal of the concept of heirs there is doubt as to
whether real property exists in Singapore.1 In any event as is discussed below most
of the land in Singapore is held by individuals under leaseholds or the estate in
perpetuity which is a creation of the State Lands Act and not a common law
freehold estate like the fee simple.2 For all these reasons and, notwithstanding
that the term real property is still commonly used when referring to interests in
land, the more useful classiﬁcation of property is that of movable and immovable
1. See Braddell, ‘Heirs and the Common Law’ (1941) MLJ xxxvi–xlv.
2. See Part I Immovable and Real Property Chapter 1 General Classiﬁcation.
3. See below.
Property and Trust Law (February 2000) Singapore – 25
40–43 General Introduction, Introduction to the Law
40. By common law and by statute land and all things permanently attached to
land are classiﬁed as immovable property.1 All interests in land, including lease-
holds, are immovable property while all other forms of property, chattels, choses
in action, and intellectual property fall into the category of movables.
1. E.g. Section 2 Interpretation Act Cap. 1 1984 Rev Ed., Section 4 Land Titles Act Cap. 157 1994
C. Movable and Personal Property
41. In general, the common law draws a distinction between real and personal
property, not between movable and immovable property. One exception lies in the
conﬂict of laws, where the distinction is made in an attempt to achieve greater
harmony with the property rules of civilian jurisdictions. Consequently, our courts
apply a different choice of law rule to immovable and movable property. However,
in its determination of whether property situated in Singapore is an immovable or
movable, the court will utilize its own notions of ownership, such as the equitable
doctrine of conversion. Consequently, land over which there is an enforceable
agreement to sell is considered money and hence movable property, even prior to
completion of the sale, as equity deems done that which ought to be done.1
1. MTT ARSAR Meyammai Achi v. Valliammai (OS 659/1992, S/C 2137/94, 23 March 1995), cf.
TM Yeo  SJICL 560.
42. Our statutes also refer to immovable and movable property, the deﬁnition
of which is provided in the Section 2(1) of the Interpretation Act.1 ‘Immovable
property’ includes land, beneﬁts to arise out of land and things attached to the earth
or permanently fastened to anything attached to the earth. ‘Movable property’
means property of every description except immovable property. These deﬁnitions
reﬂect the residual character of movable property. These deﬁnitions do not, how-
ever, apply where ‘there is something in the subject or context inconsistent with
such construction or unless it is therein otherwise expressly provided.’ In the MTT
case above, for example, the High Court of Singapore did not refer to the deﬁni-
tions in the Interpretation Act when examining the provisions of the Intestate Suc-
cession Act,2 Section 4 of which states that disposal of movable property is governed
by the lex domicilii and immovable property by the lex situs.
1. Cap. 1 1985 Rev Ed.
2. Cap. 251 1985 Rev Ed.
43. Again, there are statutes which contain their own deﬁnitions of ‘movable
property’. For example, Section 22 of the Penal Code1 provides that ‘The words
“movable property” are intended to include corporeal property of every description,
except land and things attached to the earth, or permanently fastened to anything
which is attached to the earth.’ In these instances, movable property loses its
residual status. Given such a restrictive deﬁnition, the criminal laws of Singapore
do not, in general, cover dealings with choses in action. There can, for example,
be no theft of a bank account even where value has been abstracted from the
26 – Singapore Property and Trust Law (February 2000)
Introduction to the Law, General Introduction 44–47
account by a direct withdrawal, and a fortiori where there is only an electronic
funds transfer.2 Partly for this reason, jurisdictions like the UK, NZ and India have
introduced speciﬁc legislation to cover intangible property like electricity.3
1. Cap. 224. 1985 Rev Ed.
2. See R v. Preddy  3 WLR 255 (HL), where a direct withdrawal would otherwise have been
caught by the UK legislation.
3. Section 13 UK Theft Act 1968; Section 218 NZ Crimes Act 1961; Section 39 Indian Electricity
Act 1910. There is no equivalent provision in Singapore.
44. Personal Property can be divided into chattels personal and chattels real.
The latter are leasehold interests in land. Chattels personal divide into choses in
possession and choses in action.1
1. Colonial Bank v. Whinney (1885) 30 Ch D 261. See Part II below.
III. Trust and Fiduciary Mechanisms
A. Trusts and Equitable Interests
45. Equity evolved a highly developed form of conscience through its doctrine
of notice and thus elevated the right of a beneﬁciary under a trust from a mere
personal right to a proprietary interest. The equitable interest exists in all forms of
property immovable and movable, real and personal. It is good against the whole
world except for the bona ﬁde purchaser without notice,1 while the legal interest is
enforceable against the whole world.2
1. The equitable doctrine of notice refers to actual notice, imputed notice and constructive notice,
Hunt v. Luck  1 Ch 428. It has been enacted in Section 70 Conveyancing and Law of
property Act Cap. 61 1994 Rev Ed.
2. This is reﬂected in the maxim nemo dat quod non habet. However in regard to legal interests
in land the order of priorities has been affected by the registration systems. See below Part I
46. English principles of equity together with equitable interests in land were
received into the law of Singapore by the Second Charter of Justice 1826. Fusion
of the administration of law and equity was effected by Section 3 Civil law Enactment
1878.1 Section 3 Application of English law Act continues the reception up to the
cut off date of 11 November 1993. Thus title to all property may be held in law
or in equity and common law and equitable remedies are available in the Courts.2
1. Now Sections 3 & 4 Civil Law Act Cap. 43 1994 Rev Ed.
2. Sections 3 & 4 Civil Law Act.
47. In Singapore ownership of property may be divided into legal and equita-
ble. Equity follows the law. Thus the equitable estate in land may be in fee simple
or in perpetuity or a it may be a lease. The split of ownership into legal and
equitable ownership in different persons may be voluntary and expressed, e.g., an
express trust. For example, S the owner of the legal fee simple estate may transfer
it to T in trust for B for life remainder to C in fee simple. T is the trustee having
Property and Trust Law (February 2000) Singapore – 27
48–52 General Introduction, Introduction to the Law
the legal fee simple. B and C have the beneﬁcial interest, B taking a life interest
and C taking the fee simple on B’s death.
48. The split into legal and equitable ownership may also occur by operation of
the rules of equity, e.g., the purchaser’s interest and the vendor’s lien in a contract
for the sale of land. In a contract for the sale of land where the remedy of speciﬁc
performance is available the purchaser is regarded as the equitable owner. The legal
title is with the vendor so that he is called a constructive trustee. To ensure that he
is paid the full purchase price equity imposes in his favour the vendor’s lien. Unless
the ownership is split the legal interest carries with it the equitable interest but the
equitable interest cannot exist on its own independent of the legal interest.
49. Once the equitable interest is in existence it may be disposed of inter vivos
or by will, e.g., transferred by way of gift or sale, mortgaged or charged. The
difference in the manner of disposal in inter vivos dealings lies in the formalities.
A disposition of an equitable interest requires only writing.1 A trust may also be
created out of an equitable interest; the trustee would have the equitable title and
the beneﬁciary the beneﬁcial interest.
1. Section 6B Civil Law Act.
50. The remedies of the owner of an equitable interest are the injunction,
tracing and also the erstwhile common law remedy of damages.1 For example, if
T the trustee of property were to transfer it to X by way of a gift in breach of trust,
B the beneﬁciary would have several remedies at his disposal. He may sue T in a
personal action for breach of trust. He may also trace his property to X and recover
it from X through the constructive trust. Should X no longer have the property B
may sue him in a personal remedy and recover from him the equivalent value of
his property in compensation.2
1. Section 18(2) Supreme Court of Judicature Act Reprint Singapore Statutes Cap. 322 Rev Ed.
2. Nocton v. Lord Ashburton (1918) AC 932; Ohm Paciﬁc v. Ng Hwee Cheng  2 SLR 576
at pp. 585–6.
51. A trustee of an express trust has all the duties and powers given to him in
the trust deed. But all trustees must not proﬁt from his position of trustee. Where
he does so the beneﬁciary may sue him for the proﬁts.1 He must not place himself
in a position where his duties as a trustee may possibly conﬂict with his own
personal interest2 or where he is a trustee of two trusts his duties to each of the trust
must not conﬂict.
1. Sumitumo Bank v. Kartika Ratna Thahir  1 SLR 735; AG for Hong Kong v. Reid 
2. Keech v. Sandford (1726) 25 ER 223; Phibbs v. Boardman  2 AC 46; Hytech Builders
v. Tan Eng Leong  2 SLR 795.
52. The trustee is the model for equity pinning liability on other persons who
are entrusted with or who have undertaken the obligation of looking after another’s
28 – Singapore Property and Trust Law (February 2000)
Introduction to the Law, General Introduction 53–56
interest. These persons are called ﬁduciaries. While the term of ﬁduciary still awaits
unambiguous deﬁnition it is accepted that a ﬁduciary is a person who has under-
taken an obligation to look after another’s interest and who wields inﬂuence over
the other. As of now certain positions automatically attract the label of ﬁduciary.
Common examples are the director of a company, an agent, partners in a partner-
ship. It would seem that the mantle of a ﬁduciary would be dropped on a person
where the courts feel that a person in such a position should owe the other person
a duty on account of the obligation undertaken. Once a person is called a ﬁduciary
he is under a duty not to proﬁt from his position and he should not place himself
in a position of conﬂict.1
1. See ftntes vii, viii & ix above.
IV. Possession and Title
53. The common law protects possession and the right to possess. The locus
classicus is Amory v. Delamirie.1 As common law was received into Singapore this
is also the law in Singapore.
1. (1722) 1 Strata 505, 93 ER 664.
54. Prior to amendment in 1993, Section 9 Limitation Act1 provided that twelve
years occupation of land of another nec vi, nec clam, nec precario barred the right
of the owner of the land from any action to recover his land.2 Moreover under
Section 18 Limitation Act the owner’s title to that land was statutorily extin-
guished. The adverse possessor then became the owner of the land by virtue of his
adverse possession. Thus in Singapore the link between possession and the right to
possession and title to land was very clear.
1. Cap. 163 1985 Rev Ed.
2. Soon Peng Yam v. Maimon binte Ahmad  2 SLR 609; Jubilee Electronics Pte. Ltd. v. Tai
Wah Garments & Knitting Factory Pte. Ltd.  2 SLR 39.
55. However with effect from the enactment of the Land Titles Act 19931 apart
from transitional provisions it is not possible for land to be acquired by adverse
possession any more.2 Title to land can only be acquired under one of the consen-
sual methods by conveyance from one owner to another.
1. 15 March 1994.
2. Section 177 Land Titles Act 1993 amended Section 9 Limitation Act by the addition of subsec-
tion (3) which provided that the section shall not apply to an action to recover land from a
person by reason only of his authorized occupation of the land. The transitional provisions
permitted claims to adverse possession to be made at most within 6 months of the commence-
ment of the Land Titles Act 1993. This Act commenced on 15 March 1994. However, the Act
did not affect land which was already in adverse possession for 12 years prior to the coming
into force of the Act. See Bhalwant Singh v. Double L & T Pte. Ltd.  2 SLR 726; Tan
Siok Gek v. Ng Kim Neo  2 SLR 691.
56. But in an action to evict a trespasser from land the plaintiff still has to
prove that he has possession or the right to possess. In short the law still protects
Property and Trust Law (February 2000) Singapore – 29
57 General Introduction, Introduction to the Law
ownership by protecting possession. The amendment to Section 9 Limitation Act
simply means that true owner can always sue the trespasser no matter how long the
trespasser has been in possession.
57. The law relating to chattels remains as at common law.
30 – Singapore Property and Trust Law (February 2000)
G.W. Bartholomew, Introduction in Tables of the Written Law of the Republic of
Singapore: 1819–1981 Volume 1 – Local Legislation Singapore.
A.P. Bell, Modern Law of Personal Property in England and Ireland (1989).
M. Bridge, Personal Property Law (2nd ed, 1996).
H. Chan, The Legal System of Singapore (1995).
R.G. Hammond, Personal Property Commentary and Materials (1992).
R.M. Goode, Legal Problems of Credit and Security (1988).
F. Oditah, Legal Aspects of Receivables Financing (1991).
W.J.M. Ricquier, Land Law (2nd ed, 1995).
S.Y. Tan, Principles of Singapore Land Law (1994).
S.Y. Tan, Private Ownership of Public Housing in Singapore (1988).
Property and Trust Law (February 2000) Singapore – 31
32 – Singapore Property and Trust Law (February 2000)
Part I. Immovable Property and
Chapter 1. General Classiﬁcation
58. Although it is accepted that property comprises rights, what is owned are
rights over objects, yet generally the term property has come to be associated with
the objects themselves. Thus in this sense traditionally property may be classiﬁed
in different ways: movable and immovable, tangible and intangible, corporeal and
59. The feudal concept of estates in land together with the doctrine of tenure
came to Singapore via the English common law. Property is thus also classiﬁed into
real and personal property. Freehold estates in land are real property. But the
leasehold estate is a chattel real and is personal property.
60. Since 1837, land, regardless of whether it is freehold (real property) or
leasehold (chattels real), for the purposes of devolution and transmission has de-
volved to the deceased personal representatives where it is available, together with
the personal property of the deceased, for the payment of the deceased’s debts.1
After the payment of debts the practice developed whereby the personal representa-
tives then distributed the estate regardless of whether it consisted of real or personal
property to the deceased’s next of kin.2 This has since been incorporated into
Section 5 Intestate Succession Act.3 Thus the concept of the heir is irrelevant in
Singapore. Hence there is a doubt as to whether real property still exists in Singa-
pore.4 The debate is more of an academic one since the modern preference in
legislation is to refer to land simply as such, e.g., the Land Titles Act or as immov-
able property rather than to use the archaic term real property, e.g., the Intestate
1. Currently the provision is Section 35(1) Conveyancing and Law of Property Act Cap. 61 1994
2. Syed Ali bin Alsagoff v. Syed Omar bin Alsagoff (1918) SSLR 103.
3. Cap. 146 1985 Rev Ed.
4. Braddell, ‘Heirs and the Common Law’ (1941) MLJ xxxvi–xlv.
Property and Trust Law (February 2000) Singapore – 33
61–63 Part I, Ch. 1, General Classiﬁcation
§2. Land and Fixtures
61. Land bears the meaning as at common law unless a particular statute de-
ﬁnes it for that statute. Thus land is understood as covering the surface of the earth
together with the trees, buildings, minerals and airspace above it.1 Section 6 Con-
veyancing and Law of Property Act adopts the common law deﬁnition in that it
provides that a conveyance of land is deemed ‘to include buildings, erections,
ﬁxtures, hedges, ditches, fences. . . .’ Likewise Section 4 Land Titles Act2 in de-
ﬁning land also includes the ‘structures afﬁxed thereto’. The only exception to this
is traditional Malay houses on stilts which by custom are regarded as chattels.3 The
deﬁnition of land in Section 4 Land Titles Act includes airspace or subterranean
space held apart from the surface of the earth delineated and described with cer-
tainty. This makes it possible for such delineated air spaces or subterranean spaces
to be owned under the Land Titles (Strata) Act.4
1. Section 3 Application of English Law Act. Kim Beng Lee Pte. Ltd. v. Kosion Enterprise (S) Pte.
Ltd.  1 SLR 700 where Selvam JC held that a Mass Rapid Transport viaduct over land
would intrude on the ownership of the said land.
2. Cap. 157 1994 Rev Ed.
3. Kiah binte Hanapiah v. Som  MLJ 82; Chua Sai Ngoh v. Beh Ai Meng  MLJ 167
cf. Kwek Kim Hock v. Ong Boon Siong  MlJ 253; and Khew Ah Bah v. Hong Ah Mye
 MLJ 86.
4. Cap. 158 1988 Rev Ed.
62. The maxim quid quid plantatur solo, solo cedit applies thus chattels ﬁxed
permanently to land or to a building on land as part of the land become ﬁxtures and
so part of the land.1 People’s Park Chinatown Development Pte. Ltd. v. Schindler
Lifts (S) Pte. Ltd.2 is the latest Court of Appeal decision which applied Holland v.
Hodgson.3 Taking into consideration the manner and degree of annexation as well
as the purpose of annexation the Court of Appeal held that escalators which were
resting on their own weight in specially created places in the building were ﬁxtures.
1. Van Santen v. Lim Jee Jing (1903) SSLR 3; Goh Chong Hin v. The Consolidated Malay Rubber
Estates Ltd. (1926) 6 FMSLR 86, Gebreuder Buehler AG v. Peter Chi  3 MLJ 69.
2.  1 SLR 591.
3. (1872) LR 7 CP 328.
§3. State Lands
I. State Grants and State Leases
63. All land in Singapore unless alienated belongs to the State. The right of the
State to alienate land vested in it is not expressly provided in any statute. It is an
inherent right of ownership. In providing for the terms under which individuals
may be granted land by the State and by giving the President the power to make
rules for the disposal of State land, the State Lands Rules,1 the State Lands Act by
necessary implication, recognizes the right of the State to dispose of State land.2 No
State land may be alienated without the approval of the President. While indivi-
duals may apply under the State Lands Rules for land to be alienated to them the
34 – Singapore Property and Trust Law (February 2000)
General Classiﬁcation, Part I, Ch. 1 64–66
Urban Redevelopment Authority, a statutory corporation, is the main agent respon-
sible for releasing and allocating lands for development.3
1. Cap. 314 R 1 1994 Rev Ed.
2. Cap. 314 1997 Rev Ed.
3. Section 3 Urban Redevelopment Authority Act Cap. 340 1990 Rev Ed.
64. The State may grant land to individuals in estates in perpetuity, leaseholds
or in fee simple. The estate in perpetuity is granted to the grantee forever. A State
lease may be for any period and in the past terms for 999 years were not uncom-
mon. In recent years the 99-year lease is the norm for land earmarked for residen-
tial purposes. Both these types of estates, the estate in perpetuity and the State
lease, are subject to conditions and covenants implied by the Act. These conditions
and covenants provide for the payment of an annual rent and reserve to the State
various rights such as the right to mine for minerals.1 A breach of the covenant to
pay rent empowers the State to sell the land and a breach of any other covenant
entitles the State to re-enter and forfeit the land. Subject to this the grantee of an
estate in perpetuity has the interest forever and the holder of a State lease has it
until the expiration of the lease.
1. Sections 5 and 7 State Lands Act.
II. Grants in Fee Simple
65. The fee simple estate was granted by the East India Company before the
regularization of land grants under the ﬁrst Crown Lands Ordinance. However
since 1902 fresh State lands may not be granted by way of fee simples. The State
Lands Act provides for the grants in fee simple only in these instances:
1. where existing grants of fee simples are defective or boundaries are disputed,
2. where for the convenience of the government, the owner of land held in fee sim-
ple has to surrender the grant, he may be granted a new fee simple of the same
or other land in lieu,
3. where a person applies for a strip of land adjacent to land which he already
hold in fee simple, the grant of the strip may be in fee simple,
4. where the holder of a fee simple estate desires to develop and subdivide the
land he may surrender the holding for a re-grant of one or more titles similar
to the one surrendered.
III. Reversion to State
66. Alienated land may revert to the State in the following ways:
1. In the case of a State lease, on the expiration of the lease the land will revert
to the State.
2. The State may exercise its right of re-entry and forfeit the estate in perpetuity
or the State lease where the grantee has breached a condition or covenant
implied by the State Lands Act.1 Where the breach is of payment of rent the
Property and Trust Law (February 2000) Singapore – 35
66 Part I, Ch. 1, General Classiﬁcation
land may be sold by the State. In the event that the land cannot be sold to
another individual the land reverts to the State.2
3. Where the grantee or lessee or his successor has abandoned the land for three
years and above the land reverts to the State although the land may be in the
actual occupation of some individual.3
4. Where land has been granted free from rent or at a nominal rent for religious
or charitable purposes, it shall be forfeited and vest in the State should it be
used for another other purposes.4
5. Where a person dies intestate his land together with all his other property will
go to the State where no one is entitled to his estate.5
6. Aside from land reverting to the State in the circumstances given above all land
is susceptible to compulsory acquisition by the State under the Land Acquisi-
tion Act,6 where it is required for a public purpose or for a public authority.
Where land is acquired under the Land Acquisition Act compensation is
1. Sections 7(1)(e) and 2(b) State Lands Act.
2. Sections 5, 6 and 16 Land Revenue Collection Act Cap. 155 1985 Rev Ed.
3. Sections 9, 10 and 12 State Lands Encroachment Act Cap. 315 1985 Rev Ed.
4. Section 10 State Lands Act.
5. Sections 7 & 9 Intestate Succession Act Cap. 146 1985 Rev Ed.
6. Cap. 252 1985 Rev Ed.
7. The quantum is assessed at the market value at January 1992 in respect of land acquired after
January 1993. Land Acquisition (Amendment) Act 1993.
36 – Singapore Property and Trust Law (February 2000)
Chapter 2. Legal and Equitable Interests
67. Historically interests that are recognized by the common law courts are
legal interests. Such interests are created only when the required forms are used.
Currently the conveyance of all interests in land except for the lease of seven years
and below has to be by deed in the English language.1 Where this is complied with
the legal interest is transferred. A legal title is good against the whole world. Thus
in a situation where there is a conﬂict between two or more legal interests the ﬁrst
in time will prevail.
1. Section 53 Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.
68. English principles of equity together with equitable interests in land were
received into the law of Singapore by the Second Charter of Justice 1826. Fusion of
the administration of law and equity was ﬁrst effected by Section 3 Civil Law Enact-
ment 1878.1 Section 3 Application of English law Act continues the reception up to
the cut off date of 11 November 1993. Thus title to all property may be held in law
or in equity and common law and equitable remedies are available in the Courts.2
1. Now Sections 3 & 4 Civil law Act Cap. 43 1994 Rev Ed.
2. Sections 3 & 4 Civil law Act Cap. 43 1994 Rev Ed.
69. At common law all conveyances of any interest in land except for leases
of over seven years require deeds in the English language. Thus a lease of eight
years in writing in the Chinese language is void at law. However, in equity the
lease is good.1 Similarly if the legal owner of an interest in land were to create a
mortgage in an informal manner, e.g., by deposit of title deeds the mortgage is an
1. Parker v. Tarswell (1858) 2 De G & J 560; Walsh v. Lonsdale (1882) 21 Ch D 9; Bannerji v.
Chin Cheng Realty (Pte.) Ltd.  2 MLJ 18; Khoo Keat Lock v. Haji Yusof & Ors (1929)
70. Whether an interest in property is legal or equitable depends on factors
such as the interest owned by the grantor, the mode of transfer, or the nature of the
transaction. For example, if A is the owner of an estate in perpetuity in Blackacre,
he can convey the estate by deed in the English language to B. B then has the legal
and equitable interest. Alternatively A can convey the estate by deed to T in trust
for B. In this situation T has the legal title while B has the equitable interest. When
B then deals with his interest, e.g., by way of a mortgage, the interest that his
mortgagee gets is an equitable interest.
71. Equity looks at the substance and not the form. This maxim of equity is the
basis of some equitable interests, e.g., the equity of redemption. In form the legal
mortgage takes the form of a conveyance with a proviso for redemption. But equity
protects the right of redemption beyond the contractual date and recognizes the
mortgagor as the real owner of the land. The mortgagor thus has an equitable
Property and Trust Law (February 2000) Singapore – 37
72–74 Part I, Ch. 2, Legal and Equitable Interests
interest in the land, the equity of redemption,1 and not just a mere contractual right
1. Casbourne v. Scarfe (1738) 1 ATK 603; Re Wells, Swinburne-Hanham v. Howard  Ch
380; cf. DBS Finance Ltd. v. Prime Realty  3 MLJ 96 where by way of dicta the High
Court stated that the mortgagor of an equitable interest in land did not have any estate legal or
equitable in the land but had only an equity of redemption.
72. The maxim, equity looks on that as done which ought to have been done,
is yet another source of the recognition of equitable interests. Thus a valid and bind-
ing contract for the sale of land gives to the purchaser an equitable interest in the
land.1 Likewise an agreement for a lease gives rise to an equitable lease.2 Another
example of an equitable interest is that of the restrictive covenant developed by
Equity to complement the common law easement.3
1. Lysaght v. Edwards (1876) 2 Ch D 499; Christina Lee v. Eunice Lee  3 SLR 8; Chi Lung
Sendiran Berhad v. Attorney General  2 SLR 629.
2. Walsh v. Lonsdale (1882) 2 Ch D 9.
3. Tulk v. Moxhay (1848) ER 114.
73. An equitable interest is enforceable against the whole world except for the
bona ﬁde purchase of the legal interest without notice. In the context of priorities
notice means actual notice, imputed notice and constructive notice.1 Except where
otherwise provided by statute priorities of equitable interests are governed by the
equitable maxims: where the equities are equal the ﬁrst in time prevails, and where
the equities are equal the law prevails. Within the term equities are the factors of
bona ﬁdes, value and notice. Because of the stretch of constructive notice, notice
which a person is deemed to have from that of which he has actual notice, statutes
which provide for registration whether of deeds or of title expressly state that where
the deed or title is registered the person who has registered has priority notwith-
standing that he may have actual notice of the existence of the prior interest.2
1. The equitable doctrine of notice has been incorporated in Section 70 Conveyancing and Law of
Property Act Cap. 61 1994 Rev Ed.
2. E.g. Section 14(4) Registration of Deeds Act Cap. 269 Singapore Statutes 1989 Rev Ed., Section
47 Land Titles Act Cap. 57 1994 Rev Ed. See below Chapter 3 Registration Systems.
74. Aside from established equitable interests there are also rights commonly
referred to as ‘equities’. Essentially an equity is a right recognized by equity to
recover property transferred, to enforce a right of occupation or to set aside a
transaction. The basis for the existence of such a right can be fraud, undue inﬂuence
or mistake. While such rights are in the nature of personal rights sometimes re-
ferred to as ‘personal equities’ yet in certain circumstances they may be enforceable
against third parties. In terms of priorities an equity is not equal to an equitable
interest.1 Thus in a contest between an earlier equity and a purchaser of a later
equitable interest the earlier equity will not bind the later equitable interest unless
the purchaser was without notice of the equity. In spite of its lesser range of
enforceability there is growing support for the view that an equity is within the
realm of proprietary interests.2 Where the equity is in the form of a right to occupy
land, e.g., in the case of a licence based on an estoppel the extent to which it will
38 – Singapore Property and Trust Law (February 2000)
Legal and Equitable Interests, Part I, Ch. 2 75–76
affect a third party is still in some doubt, although the better view may be that it
should only bind a subsequent purchaser only if he has been guilty of actual fraud
or where he has given an express undertaking to honour the licence.3
1. Phillips v. Phillips (1862) 4 De GF & J 208; Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd.
(1965) 113 CLR 265.
2. See footnote above and Wade,  CLJ 482, Crane (1955) 19 Conv (NS) 346; Jackson,
Principles of Property Law, 1967.
3. Ives Investment v. High  2 QB 379; Inwards v. Baker  2 QB 29; Binions v. Evans
 Ch D 359; Ashburn Anstaldt v. Arnold [1989 ] Ch 1. See also Ricquier and Soon, ‘The
Licence coupled with an Equity in Singapore and Malaysia’ (1981) 23 Mal LR 123, Battersby,
‘Contractual and Estoppel licences as Proprietary Interests’ (1991) Conv. 36.
75. As is discussed in Chapter 3 below there is in place in Singapore a system
of registration of titles under the Land Titles Act.1 Under this regime all transfers
of land under the Act must be by way of registration. The question that arises is
whether equitable interests exist under this system. It would seem that it is accepted
that the Land Titles Act recognizes the existence of equitable interests. Section 115
permits a person who claims an interest in land to lodge a caveat and Section 4
deﬁnes an interest in land by reference to the general law.2 Further it would seem
that in spite of the explicit provisions of the statute even personal equities may
adversely affect third parties who have registered interests.3
1. Cap. 157 1994 Rev Ed.
2. See also Jackson, ‘Equity and the Torrens System: Statutory and other interests’ (1964) 6 Mal
L R 146.
3. See below Chapter 3 Registration Systems.
76. The list of equitable interests is not closed. But while there are rights which
are enforced against some third parties, until the recognition goes to the extent of
enforceability against the whole world except for the bona ﬁde purchaser of the
legal interests, such rights are called mere equities.1 As discussed above, equities
are personal rights which may be enforceable against a party other than the imme-
diate party concerned on account of some element of fraud or unconscionability.
1. There are also personal rights which do not affect any third party on policy grounds, e.g.
National Provincial Bank v. Ainsworth  AC 1175.
Property and Trust Law (February 2000) Singapore – 39
Chapter 3. Registration Systems
§1. Registration of Deeds
I. In General
77. Currently there are two systems of registration applicable to transactions
relating to land. First there is the registration of deeds system which was introduced
into Singapore in 1886 with the enactment of the Registration of Deeds Ordinance
based on the English Yorkshire Registry and Middlesex Registry Acts.1 The statute
in force is the Registration of Deeds Act.2 This Act applies to dealings in land to
which the general law of conveyancing applies. This is all land except those which
are under the Land Titles Act.3
1. Yorkshire Registry Act 1703, Middlesex Registry Act 1708.
2. Cap. 281 1989 Rev Ed.
3. Cap. 157 1994 Rev Ed. Discussed below.
78. Under the general law conveyances of interests in land except for the lease
of seven years and below have to be by deed in the English language.1 While the
deed is required to pass the legal interest, equitable interests are created with no
formality since equity works on intention, on substance rather than the form. Under
this system of conveyancing dealings in land are completely private acts and secrecy
prevails. Where conﬂicting interests arise in respect of the same interest in land the
priorities are regulated by the equitable maxims: where the equities are equal the
ﬁrst in time has priority, where the equities are equal the law prevails. Under these
maxims the protected person is the bona ﬁde purchaser for value of the legal
interest without notice. Thus in this regime of conveyancing and regulation of
priorities there is much opportunity for fraud to be practised.
1. Section 53 Conveyancing and law of Property Act Cap. 61 1994 Rev Ed.
II. Reasons for Registration
A. Admissibility as Evidence of Title
79. Under the Registration of Deeds Act, deeds relating to land may be regis-
tered in the Registry of Deeds. Deeds which may be registered include the convey-
ance, lease and agreement for lease by deed and the memorandum of a lien or
charge.1 Registration of a deed is not required for validity but under Section 4
unless a deed relating to land is registered it shall not be admissible in court as
evidence of title.2 This provision caused many problems such as that in Ho Hong
Bank v. Teo Chin Chay and the cases that preceded it. In Ho Hong Bank a mort-
gagor tried to get out of the mortgage by deposit of title deeds by pleading that the
mortgagee could not sue on the mortgage as the memorandum of the mortgage had
40 – Singapore Property and Trust Law (February 2000)
Registration Systems, Part I, Ch. 3 80–82
not been registered so that it could not be used as evidence in court. The court held
that the document was admissible as evidence of the contract of the mortgage.
Section 4 has little to do with the prevention of fraudulent dealings. Instead it was
enacted to enable the then colonial administrators to keep a record of land dealings
for collection of taxes and other administrative reasons.
1. Section 2 Registration of Deeds Act.
2. Ho Hong Bank Ltd. v. Teo Chin Chay (1929) SSLR 195.
80. Another reason for registration is to secure priority. Where there are two
deeds relating to the same interest in land the ﬁrst to be registered has priority
except where there is actual fraud.1 This advantage accrues only to the purchaser.
But where a deed is invalid or void registration does not make it valid. Under the
Registration of Deeds Act the importance of the equitable doctrine of notice is
diminished and the equitable maxims of regulating priority are no longer relevant
except in the rare situations where the transactions are not in deed form and so are
not registrable under the Act.2
1. Section 14 Registration of Deeds Act.
2. Rodger v. Harrison  1 QB 161; Khoo Keat Lock v. Haji Yusop (1929) SSLR 176; Syed
Omar v. Somasundram Chitty (1910) 11 SSLR 38.
81. By giving priority to the ﬁrst to be registered of two or more deeds relating
to land the objective of preventing fraud is partially met. However, not all dealings
affecting land require a deed. For example, equitable interests created under a
contract for sale, equitable leases may be effected without any formality. Where
this is the case there is no deed to be registered. In such cases the Registration of
Deeds Act is not applicable. Priority then is still regulated by the equitable maxims.
An exception is made in the case of the equitable mortgage, lien or charge where
Section 6 provides that a memorandum of the lien or charge must be registered to
be effective against a subsequent purchaser for value.1
1. Chung Khiaw Bank Ltd. v. United Overseas Bank Ltd.  1 MLJ 185.
82. However, recently by providing for caveats of interests in land to be reg-
istered the equitable interests are now capable of being reﬂected in the Registry of
Deeds.1 Although the provisions for the caveat sit uncomfortably in the context of
the other provisions, yet if the caveat can be construed as an ‘instrument’ within
Section 14 it can be said that the equitable interest which has a registered caveat
has priority over a deed which is registered after it.2 In any event the very fact of
the existence of the caveat would give notice to all the world of its existence
thereby even in this limited way, removing one of the weaknesses of the system.
But in any event this system of registration of deeds is being replaced by a more
comprehensive system of registration, viz., title registration.
1. Section 8 Registration of Deeds Act.
2. See S.Y. Tan, (1988) 30 Mal. LR 371–376.
Property and Trust Law (February 2000) Singapore – 41
83–85 Part I, Ch. 3, Registration Systems
83. Some of the difﬁculties with the Registration of Deeds Act stem from the
fact that registration of the deed relating to land is not compulsory. For example,
doubts have been raised as to whether a second conveyance of the same interest in
land which is registered but the ﬁrst conveyance is not, is an issue of priority or
one of validity.1 This is one aspect of the main problem which is the extent to
which the general law of conveyancing has been superseded by the provisions of
1. Ng Boo Bee v. Khaw Joo Choe (1921) 14 SSLR 90, Bank of China v. The First National Bank
of Boston  1 SLR 441.
2. See Chia Guan Chip v. Dunlop (1901) 6 SSLR 98.
§2. Land Titles Act
I. Bringing Land under the Land Titles Act1
84. In 1956 the Land Titles Act was enacted which introduced into Singapore
the Australian Torrens system of title by registration. Under this system a Registry
of Land Titles was established.2 Dealings in land under the Act have to be regis-
tered in the Registry of Titles in order to effect the transfer of the interest in land.3
Registration is required for validity. Deeds are no longer relevant and there is no
more secrecy of dealings with land. The register is conclusive evidence of title.4
The objective of this transparent system of dealings in land is to facilitate dealings
especially for purchasers.
1. Cap. 157 1994 Rev Ed.
2. Sections 5–7, 28(1) & (2) Land Titles Act.
3. Section 45 Land Titles Act.
4. Section 36 Land Titles Act.
85. Land is brought under this system in many ways. New State grants or
leases of land are made under the Land Titles Act.1 There is provision for voluntary
conversion of land to the ‘new’ system.2 Then there are situations for effecting the
‘conversion’ compulsorily. Owners who intend to develop land are required to
submit the titles to the Registrar for conversion to the Land Titles system.3 Since
the whole scheme of strata titles rest on registration of titles and is only available
to land under the Land Titles Act this is an effective method of conversion. Finally
as a catch all provision the Registrar may elect to bring a piece of land under the
Act under Section 22. It is anticipated that all land would be governed by the Land
Titles Act within the next few years.
1. Section 8 Land Titles Act.
2. Section 19 Land Titles Act. A person who has a fee simple, or an estate in perpetuity or a State
lease with at least ten years to run may apply to have the land brought under the Act.
3. Sections 9, 10 & 23 Land Titles Act.
42 – Singapore Property and Trust Law (February 2000)
Registration Systems, Part I, Ch. 3 86–87
II. Qualiﬁed Titles
86. In order to facilitate conversion without immediately wiping out existing
encumbrances a ‘qualiﬁed’ title may be registered.1 This involves the Registrar
endorsing a ‘caution’ on the title when the title is issued.2 With this ‘qualiﬁed’ title
the land is brought under the Act and all subsequent dealings are governed by the
Act.3 However, existing encumbrances are protected and the registered title would
be subject to them for a limited period.4 A purchaser of a qualiﬁed title may apply
to have his title made unqualiﬁed on the expiration of ﬁve years from the date of
the last conveyance cancelled by the Registrar upon creation of the qualiﬁed title.5
Otherwise the proprietor may apply after 12 years from the issuance of the qualiﬁed
title.6 On the lapsing or cancellation of the caution the title would become an
unqualiﬁed one and all erstwhile encumbrances would be wiped out unless they are
protected by caveats.7
1. Section 21 Land Titles Act.
2. Section 25 Land Titles Act.
3. Section 21(3) Land Titles Act.
4. Section 25(1) Land Titles Act.
5. Section 25(3) Land Titles Act.
6. Section 26 Land Titles Act.
7. Section 25(5) Land Titles Act.
III. Effect of Registration
87. Once land is governed by the Land Titles Act certain dealings to be effec-
tive and valid must be registered.1 The owner of an interest in land is called the
registered proprietor. Subject to the other provisions of the Act the register is
conclusive evidence that the person registered is the proprietor.2 Dealings which
have to be registered include transfers, leases of over seven years, mortgages and
charges, transmissions and easements.3 On registration not only is the interest passed
to the new registered proprietor, he also has a title which is indefeasible subject
only to for registered interests and notiﬁcations and a list of overriding interests.4
The registered title is defeasible where there is actual fraud by the registered pro-
prietor himself or his agent.5 Other grounds for defeating a registered title include
trust and contractual obligations entered into by the registered proprietor himself.6
As between two or more registered interests the ﬁrst to be registered has priority.7
1. Section 45 Land Titles Act.
2. Sections 36 & 46 Land Titles Act.
3. Sections 63, 68, 107, 96, 97, 110 & 132 Land Titles Act.
4. Section 46 Land Titles Act.
5. Sections 46, 47, 154 & 157 Land Titles Act.
6. Section 46(2) Land Titles Act.
7. Section 48 Land Titles Act.
Property and Trust Law (February 2000) Singapore – 43
88–90 Part I, Ch. 3, Registration Systems
IV. Indefeasible Title
A. Assurance Fund
88. As stated above the registered proprietor has an indefeasible title subject
only to such overriding interests and exceptions as set out in the Act. As with all
other Torrens systems only purchasers have the beneﬁt of indefeasibility of title.1
There is also an Assurance Fund which persons who have suffered loss as a result
of the provisions of the Act may apply to for compensation.2 To date there has been
no payment out of this Fund.
1. Section 46(3) Land Titles Act.
2. Section 151 Land Titles Act.
B. Overriding Interests
89. The list of overriding interests consists of the usual provisions, e.g., existing
reservations, conditions in State grants, subsisting easements, short term tenancies,
the right of the Registrar to correct for mistake. More unusually Section 46 Land
Titles Act also includes as an overriding item, a power in the court to correct the
register on grounds of mistake, omission and fraud caused or substantially contrib-
uted to by the act, neglect or default of the proprietor.1 Unless these terms are given
a narrow construction the concept of indefeasibility of title could be rendered a
shadow of what it was intended to be.
1. Sections 46(1)(e), & 160 Land Titles Act.
90. The main exception to the title of the registered proprietor being indefea-
sible is where there is actual fraud.1 Even where the registration is based on a
forged or void instrument the registered title is good and indefeasible.2 Moreover
Section 47 clearly states that mere notice of the existence of a prior unregistered
interest will not affect the indefeasible title. Case law has established that only
actual fraud, dishonesty of some sort, by the registered proprietor or his agent will
defeat the registered title.3 However, just as the registered title is subject to contrac-
tual or trust claims against the registered proprietor so it should also be subject to
‘personal equities’, viz., in personam actions based on equity.4
1. Section 47 Land Titles Act, Assets Company v. Mere Roihi  AC 176.
2. Section 46 Land Titles Act, Frazer v. Walker  1 AC 569; Alrich Development Co. Ltd.
v. Jumabhoy  2 SLR 401. Cf. UOF Ltd. v. Sakayanary  3 SLR 211 where the High
Court held that a conveyance by personal representatives more than six years after the death of
the deceased without the sanction of the court as prescribed by Section 35(2) Conveyancing and
law of Property Act was within the Court’s powers of rectiﬁcation under Section 160.
3. Assets Co. v. Mere Roihi  AC 176; Waimiha v. Waione Sawmilling Co. Ltd.  AC
101; Loke Yew v. Port Swettenham Rubber Co. Ltd.  AC 491; United Overseas Finance
44 – Singapore Property and Trust Law (February 2000)
Registration Systems, Part I, Ch. 3 91–94
Ltd. v. Yew Siew Keen  3 SLR 207, United Overseas Finance Ltd. v. Sakayanary 
3 SLR 211.
4. Frazer v. Walker  AC; Bahr v. Nicolay (1988) 62 ALJR 268; Mercantile Mutual Life
Insurance Co. Ltd. v. Gosper (1991) 25 NWSLR 32; Goh Swee Fang v. Tiah Juah Kim 
3 SLR 881. Cf. Section 160 Land Titles Act.
V. Unregistered Interests and Caveats
91. Where a registered proprietor deals with his interest in a manner which at
general law would have created an equitable interest such interest being in an un-
registrable form cannot be registered. However, it is still capable of being protected
under the Act by way of the caveat.1 So interests under trusts and other equitable
interests, e.g., vendor’s lien may be protected by lodging caveats.
1. Section 115 Land Titles Act.
92. A caveat may be lodged by any person who has a claim to an interest in
land.1 The registrar is not required to verify the claim.2 The caveat may be in terms
which prohibit the registration of a subsequent dealing without the caveator’s con-
sent or unless it is expressly subject to the interest caveated.3 When a prohibited
dealing is lodged for registration the caveator is notiﬁed and he could then respond
either by withdrawing his caveat or taking the matter to court.4 Where he fails to
respond or where the court does not favour him with its judgement, the registrar
will register the subsequent dealing and the caveat will lapse. Procedures also exist
for the caveatee to ask the caveator to show cause as to why his caveat should not
be removed.5 The caveat has been likened to a statutory injunction.6
2. Section 117(4) Land Titles Act.
3. Section 115(2) Land Titles Act.
4. Section 120 Land Titles Act.
5. Section 127 Land Titles Act.
6. Eng Mee Yong v. Letchumanan  2 MLJ 212; Alrich Development Co. v. Jumabhoy 
2 SLR 441.
93. A caveat takes effect from the date of lodgement and lasts for ﬁve years
unless it has been removed or cancelled.1 It may also be extended for another
period of ﬁve years where the interest it protects still exists.2 The lodging of caveats
is important also because in determining the priority between two or more unreg-
istered interests, the ﬁrst to lodge the caveat has priority.3
1. Section 121 Land Titles Act.
2. Section 122 Land Titles Act.
3. Section 49 Land Titles Act.
94. Where the caveatee has suffered loss on account of the caveat being
allowed to remain ‘wrongfully, vexatiously, or without reasonable cause’ the court
may require the caveator to compensate the caveatee.1 As currently interpreted by
the High Court ‘wrongfully’ simply means without any legal right requiring no mens
rea at all. Such an approach could undermine the rationale of caveats as it may
Property and Trust Law (February 2000) Singapore – 45
94 Part I, Ch. 3, Registration Systems
lead to a disinclination of persons having claims to interests in land from lodging
1. Section 128 Land Titles Act.
2. Tan Soo Leng v. Wee Saktu & Kumar Pte. Ltd.  3 SLR 569; Eng Bee Properties Pte. Ltd.
v. Lee Foong Fatt  3 SLR 837. Cf. Beca Developments v. Idameneo (No. 92) Pty. Ltd.
(1990) 21 NSWLR 459.
46 – Singapore Property and Trust Law (February 2000)
Part II. Movable Property and Personal
Chapter 1. General Classiﬁcation
§1. Tangible Movable Property and Choses in Possession
244. Tangible movable property is not a recognized legal term. It is, however,
often used interchangeably with choses in possession, which are personal property
that can be possessed and do not require the taking of a personal legal action to
vindicate. However, common law possessory actions reside in tort (actionable per
se) for trespass, conversion or detinue (where money is concerned, the action is
normally one in restitution for money had and received) and they therefore have
certain personal traits, since they only give rise to a claim for damages. Singapore
has not imported the Torts (Interference with Goods) Act 1977 from England, and
there is no speciﬁc mechanism to order delivery up at law. A defendant has the
choice of making speciﬁc delivery or paying the assessed value of the property.
However, courts have exercised an equitable discretion to order delivery up.1 If the
claim is purely personal, there may drawbacks in insolvency in that the claimant
will not have any priority over the claims of other unsecured creditors, unless
continued identiﬁcation of the chattel is possible such that it does not vest in the
trustee in bankruptcy (personal insolvency) or the liquidator (corporate insolvency).
Alternatively, a full proprietary claim can be brought in equity, where the rules of
identiﬁcation are also more generous.
1. Yoong Yuet Hoe v. Shenson Engineering & Trading (S) Pte. Ltd.  2 SLR 675, and the
Rules of Supreme Court O 45 r 4.
§2. Intangible Movable Property and Choses in Action
245. These forms of personal property cannot be possessed and which central
characteristic is that an action has to be brought to realize it. Examples include
bank accounts, receivables, company shares, bonds, and intellectual property rights.
Like choses in possession, choses in action can be assigned. Exceptionally, they
may not be transferable as there is an element personal to the parties involved.1
Assignments of choses was impossible at law, but possible in equity, although this
sometimes meant that the action against the obligor had to be brought in the name
Property and Trust Law (February 2000) Singapore – 95
246–247 Part II, Ch. 1, General Classiﬁcation
of the assignor, if not voluntarily as plaintiff, then joined as a defendant. However,
compliance with Section 4(6) of the Civil Law Act2 now effects a statutory assign-
ment, where joinder of the assignor is unnecessary. This requires the assignment to
be in writing, and written notice to be given to the debtor. Unlike the case with
choses in possession, however, assignments of choses in action are always subject
to prior equities. Further, the issue of priorities is determined by the rule in Dearle
v. Hall, i.e., the order in which notice is given to the obligor, rather than the usual
rule that the ﬁrst in time of creation prevails.3 Finally, prohibitions against assign-
ment of a chose in action can bind third parties, whereas encumbrances on chattels
are less efﬁcacious against third parties.4
1. Chitty v. Seah Eng Koon  3 MLJ 164, introduction of word ‘personally’ on a promissory
note had the effect of making the note not negotiable and also prevented a valid assignment of
the debt in respect of which the notes were given.
2. Cap. 43 1994 Rev Ed.
3. Applied in K.A.R. Ramanathan Chetty v. Tan Cheng Hoo & Anor  MLJ 262.
4. See Tjio (1994) SAcLJ 159.
246. Many forms of choses in action, for example, intellectual property rights
and company shares, also have their own statutory requirements for transfer. At the
same time, new and novel forms of intangible property abound. And even where
they are not strictly classiﬁed as property, they may have many of the remedial
characteristics associated with property. For example, although information is prob-
ably not a species of property,1 it has been said that ‘equity acts to protect conﬁ-
dential information, and the degree of protection afforded makes it appropriate to
describe it as having proprietary characteristics, but that is not because property is
the basis on which protection is given. It is the effect of that protection.’2 It is likely
that the fear of criminal consequences has caused many developed Commonwealth
jurisdictions to refrain from treating information as a species of property.3 While
there are dangers of looking at the consequences and concluding that because some
of the protections accorded to property exist that it must be a proprietary right, this
is less of a problem in Singapore since our criminal legislation does not generally
cover choses in action. For example, Section 378 of the Penal Code4 provides that
only movable property can be stolen, and Section 22 of the Code deﬁnes ‘movable
property’ as ‘corporeal property of every description, except land and things attached
to the earth, or permanently fastened to anything which is attached to the earth.’
1. Boardman v. Phipps  2 AC 46; Victoria Park Racing and Recreation Co v. Taylor (1937)
58 CLR 479.
2. Breen v. Williams  186 CLR 71 at p. 90 (Dawson, Toohey JJ) noted Nolan (1997) LQR
3. Stewart v. The Queen  1 SCR 963; 50 DLR (4th) 1; see Hammond, Personal Property
Commentary and Materials (1992) at p. 90 et al.
4. Cap. 224 1985 Rev Ed.
II. Documentary Intangibles
247. These are choses in action that are manifested in physical form. Docu-
mentary intangibles thus have the traits both of choses in possession and choses in
96 – Singapore Property and Trust Law (February 2000)
General Classiﬁcation, Part II, Ch. 1 248 –249
action. The foremost example of this would be negotiable instruments like the
cheque and bill of exchange. These instruments are really debt instruments in
which the transfer of paper carries with it the underlying debt, a chose in action.
Due to its physical manifestations, there is a tendency to reify the chose in action,
so that possession of the physical form takes on a signiﬁcance that does not exist
with pure intangibles.1 The rules of assignment of choses in action do not, for
example, apply where negotiable instruments are concerned – such instruments
can be transferred free of prior equities. Cheques can also clearly be converted,2
although banks are given statutory defences in the Bills of Exchange Act when
handling such instruments.3 But at other times, even the cheque is treated not as a
separate physical entity, but only as evidence of a chose in action, so that stoppage
of payment appears to also destroy the proprietary nature of the cheque itself. In
these situations, the donor of the cheque can lawfully repossess it.4
1. Barak (1983) 18 Israel LR 49.
2. The Ofﬁcial Assignee Of The Property Of Loh Chuk Poh v. The Oversea Chinese Bank Ltd.
 MLJ 76.
3. Cap. 23 1985 Rev Ed.
4. JB Jeyaratnam v. Law Society  3 MLJ 425 (PC from Singapore); discussed by K
Shanmugam  1 MLJ xli,  2 MLJ lxvi; P Jeyaratnam  2 MLJ xxxiii, 
3 MLJ xvii.
248. The situation is even more complex with non-negotiable instruments like
shares. The giving away of possession of the share certiﬁcate (with an executed
transfer form) to a middleman can give rise to an estoppel against the true owner.
The owner’s interest would be subordinated to a third part if his action causes a
third party to believe that the middleman has the authority or title to transfer the
shares.1 Yet it has been held that it would be extremely unusual to obtain a pledge
of the paper relating to shares, since security over the underlying chose should be
in the form of a mortgage or charge.2
1. Pan-Electric Industries Ltd. v. Overseas-Chinese Banking Corp. Ltd.  3 SLR 695.
2. Chase Manhattan Bank v. Wong  1 SLR 1; but see McCracken (1993) 4 Journal of
Finance Law & Practice 232.
249. Money is used as a unit of account, store of value and a medium of
exchange. The latter role is, however, predominant. For this reason, although it is
treated as a chattel, possessory actions such as conversion cannot generally be
brought unless money is set aside, for example, in a bag. This is because title to
money passes readily due to its highly negotiable nature, so that the relationship
created between the transferor and transferee is generally one of mutuum or loan,
rather than bailment, which would normally require that the money not be mixed
with the transferee’s other assets and returned in specie at the end of the bail-
ment.1 Consequently, improperly transferred money is normally recovered through
Property and Trust Law (February 2000) Singapore – 97
250–252 Part II, Ch. 1, General Classiﬁcation
restitutionary actions.2 However, personal actions may not sufﬁce in an insolvency.
In these situations, it is vital to establish a proprietary claim, which in equity
requires a ﬁduciary relationship and probably an equitable proprietary interest.3
1. But see Mercer v. Craven Grain Storage Ltd.  CLC 328; Bridge, Personal Property Law
(2nd ed, 1996) at p. 31.
2. Lipkin Gorman v. Karpnale  2 AC 548.
3. FC Jones v. Jones  3 WLR 703, Hongkong & Shanghai Bank v. UOB  2 SLR 495.
II. Mixed Funds or Assets
250. Outside the traditional banker-depositor relationship, however, the inten-
tion of the transferor may be to retain ownership in the transferred funds or assets
purchased from those funds. This is manifested in the requirement that the trans-
feree keep the funds separate from his own. However, the fungible nature of money
and difﬁculty with identiﬁcation means that the pooling of funds, say, for the
purposes of investment, often create problems of ascertainability and co-ownership.
Even if the transferor retains a proprietary interest in the fund, it is clear that no
individual fund-holder can segregate its share from the rest of the fund. The more
difﬁcult question is whether that individual holder in fact shares the fund in com-
mon with the other fund-holders or whether the fund-holder only has a contractual
right to a share which does not survive an insolvency. As the law stands, it is
generally easier to retain a property right than to create a new right in a pool of
assets. The former is assisted by the laws of tracing, particularly the presumptions
of equity.1 The latter is hampered by the requirement that property be identiﬁable
before title to it can pass.2 Consequently, there has to be an unequivocal appropriation
at some point in time before a proprietary interest can be created in a mixed fund.
1. See para. 310; Re Hallett’s Estate (1880) 30 Ch D 696; Hongkong & Shanghai v. UOB, ibid.
2. Re Goldcorp Exchange Ltd.  1 AC 74.
251. Where a fund consists not of tangible assets but extremely fungible forms
of choses in action like shares, however, it may be easier for property to pass even
though the shares are not speciﬁcally appropriated to the individual owners. Rights
of co-ownership are quite readily created in these situations,1 although the position
in Australia seems to be that such rights cannot be created without speciﬁc appro-
priation.2 The courts in Singapore are likely to adopt the English position, particu-
larly since, under certain circumstances, statute now also recognizes co-ownership
rights in a bulk of tangible property.3
1. Hunter v. Moss  1 WLR 452.
2. In re Harvard Securities Ltd. (in liq), The Times, 19 July 1997.
3. Sale of Goods (Amendment) Act 1996, adopting the 1995 English amendments.
§4. Chattels Real
252. The only recognized chattel real is the leasehold interest, which is pro-
tected by a personal not a real action. However, for practical purposes, the action
98 – Singapore Property and Trust Law (February 2000)
General Classiﬁcation, Part II, Ch. 1 252
of ejectment, which has roots in trespass, is in effect an action for the recovery of
land and has the traits of a real action. Further, the Limitation Act1 does not include
chattels real in its deﬁnition of ‘personal estate’ although the Wills Act2 does. All
other chattels are chattels personal, i.e., choses in possession and choses in action.
1. Cap. 163 1985 Rev Ed.
2. Cap. 352 1985 Rev Ed.
Property and Trust Law (February 2000) Singapore – 99
Chapter 2. Legal Interests
§1. Ownership and Possession
253. The common law recognizes only two interests in personal property:
ownership and possession. However, ownership in Anglo-American law is not akin
to its civilian counterpart; it is simply the best or highest form of possession
available. Ownership is the ‘greatest possible interest in a thing which a mature
system of law recognizes’.1 It therefore follows that possession is by its nature
relative, so that someone in possession, even if not the real owner, can maintain an
action for conversion or negligence against a wrongdoer, and anyone claiming
under him. ‘The English law of ownership and possession, unlike that of Roman
law, is not a system of identifyng absolute entitlement, but of priority of entitle-
ment’.2 So it is in Singapore. Thus, the person with possessory title can assert that
title against the whole world except the true owner, and the defence of jus tertii
seldom succeeds.3 The old doctrine of reputed ownership also bears this out, al-
though this doctrine only exists in older legislation like Section 12 of the Distress
Act;4 and Sections 7 and 8 of the Land Improvement Act.5
1. Honore, ‘Ownership’ in Oxford Essays in Jurisprudence (ed. Guest, 1961).
2. Waverley Borough Council v. Fletcher  QB 334, at p. 345.
3. The Ofﬁcial Assignee Of The Property Of Loh Chuk Poh v. The Oversea Chinese Bank Limited
 MLJ 76.
4. Cap. 84 1985 Rev Ed.
5. Cap. 153 1985 Rev Ed.
§2. Sanctity of Legal Interests
254. Legal interests are said to bind the world and no one is able to transfer a
better title than he has: nemo dat quad no habet. This is, however, subject to the
statutory exceptions found in the Sale of Goods Act,1 some of which, like the
market overt rule, originated in the lex mercatoria. Consequently, legal interests in
personal property, though secure, are not completely so. For example, Section 25
of the Sale of Goods Act provides that a buyer in possession of goods may be able
to transfer a better title than he himself possesses, although this would not alter the
fact that the buyer has converted the goods:
25. Where a person having bought or agreed to buy goods obtains, with the
consent of the seller, possession of the goods or the documents of title to the
goods, the delivery or transfer by that person, or by a mercantile agent acting
for him, of the goods or documents of title, under any sale, pledge, or other
disposition thereof, to any person receiving the same in good faith and without
notice of any lien or other right of the original seller in respect of the goods,
has the same effect as if the person making the delivery or transfer were a
mercantile agent in possession of the goods or documents of title with the
consent of the owner.
100 – Singapore Property and Trust Law (February 2000)
Legal Interests, Part II, Ch. 2 255 –256
It is largely for this reason that hire purchase agreements are structured in such a
way that the hirer will not be deemed to be a buyer in possession. Instead, the
ﬁction of hiring is created, with the hirer given the option to purchase the hired
goods at the end of the hiring agreement for a nominal sum.2 Prior to the ﬁnal
purchase, a relationship of bailment is created, with the ﬁnance company remaining
1. Cap. 393 1994 Rev Ed.
2. Helby v. Matthews  AC 471.
§3. Special Property
255. Ownership is often aligned with the proprietary right in general property.
Section 61 of the Sale of Goods Act states that ‘ “property” means the general
property in goods, and not merely a special property’. Unfortunately, special pro-
perty is not deﬁned and is best seen as a property right that is carved out of the
rights of the owner of the general property. This would include the possessory
rights of a pledgee and lienee. The possessory rights of a pledgee,1 though not a
lienee, can be transferred.2
1. Donald v. Suckling (1866) LR 1 QB 585.
2. Bell, Modern Law of Personal Property in England and Ireland (1989) at pp. 136 –137.
256. Both the pledgee and lienee are considered bailees, since the owner or
bailor has transferred away possession of the goods. One prerequisite of a bailment
is the transfer of possession to the bailee, who has to take possession voluntarily.1
At the end of the bailment, the property has to be returned to the bailor, often in
specie and unaltered, but exceptionally in an equivalent form.2 During its currency,
however, the bailee’s common law possessory right is good against the owner or
holder of the general property, so long as the terms of the bailment are adhered to.
Generally, the bailee will also be able to sue and recover full damages for an
interference with his right of possession, even though he would have a good answer
to a claim by the bailor for damages.3 But bailments also carry concurrent liabilities
as well, and the extent of these are determined by the form of bailment. At least
six forms were identiﬁed in Coggs v. Barnard,4 at one extreme where the bailor
rewards the bailee, e.g., common carrier, for a service performed, where liability
is strict. At the other extreme, possession is transferred purely for the beneﬁt of the
bailor, e.g., a gratuitous service, where only very serious negligence on the part of
the bailee would give rise to liability.
1. T Kishen & Company v. Birkart South East Asia Pte. Ltd. (Civil Appeal No. 42 of 1996; 28
2. Mercer v. Craven Grain Storage Ltd.  CLC 328.
3. The Winkﬁeld  P 42; QBE Insurance Ltd. v. Sim Lim Finance Ltd.  1 MLJ 657.
4. (1703) 2 Ld Raym 909.
Property and Trust Law (February 2000) Singapore – 101
257–258 Part II, Ch. 2, Legal Interests
257. The relationship between bailor and bailee is sometimes seen as sui generis,
but probably consists of a mixture of tort and contract, with the latter modifying
what would otherwise have been extant law. However, the burden is on the bailee
to prove that loss would have occurred even without any fault on his part, when the
general rule is that damage must be proved by the plaintiff.1 A bailee can sub-bail
the goods to another. If the bailor consents either expressly or impliedly to the sub-
bailment, all the incidents of the relationship between bailee and sub-bailee will be
implied into the relationship between bailor and sub-bailor.2
1. Port Swettenham Authority v. Sharikat Lee Heng Sdn. Bhd  1 MLJ 110; Houghland v.
R R Low (Luxury Coaches) Ltd. (1962) 1 QB 694.
2. The Pioneer Container  2 AC 324; Phang (1995) 58 Modern LR 422–30.
258. Whereas possession in the strict legal sense can seldom be shared, co-
ownership is a common occurrence. There are only two forms of co-ownership
recognized at law: the joint tenancy and tenancy in common. The former carries
with it the right of survivorship, so that upon the death of a joint tenant, property
will pass automatically to the surviving joint tenant without falling into the de-
ceased’s estate. Equitable interests can also be co-owned, although this would more
often be in the form of a tenancy in common, where both parties have distinct and
several shares that will devolve to their successors-in-title.
102 – Singapore Property and Trust Law (February 2000)
Chapter 3. Equitable Interests
259. Aside from the legal interests examined above, all other forms of proprietary
interests reside in equity. The priority in which equitable interests take effect depend
on the maxim qui prior est tempore, portior est jure, so that the interest which is
the ﬁrst in time to be created prevails over a subsequent equitable interest. How-
ever, this is subject to equity’s darling, viz., the purchaser of a legal estate for value
without notice. Such a purchaser trumps the holder of a prior equitable interest.
260. There is a whole spectrum of equitable interests, and many can exist
concurrently over the same property. At one extreme is the interest of a beneﬁciary
under a bare trust, where the cestui que trust enjoys all the fruits of the property
administered by the trustee. At the other extreme are mere equities.1 These include,
for example, rights to rescind a contract arising from misrepresentation or undue
inﬂuence. These rights bind the world except for equity’s darling and the purchaser
of the equitable estate for value without notice.2 In Singapore, the interest of a
beneﬁciary in property subject to a trust that would only be constituted on comple-
tion of the administration of an estate has been considered to be such an interest.3
1. As opposed to personal equities, which have no proprietary effect: Meagher, Gummow &
Lehane, Equity Doctrines and Remedies (3rd ed. 1992) at paras. 427–435.
2. Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd. (1965) 113 CLR 265.
3. Wong Moy (administratrix of the estate of Theng Chee Khim, deceased) v. Soo Ah Choy (Civil
Appeal No. 23 of 1996; 13 September 1996), but see Commissioner of Stamp Duties (Queens-
land) v. Livingtone  AC 694 (PC).
261. There are often contractual covenants made by a seller and a third party
that seek to burden the purchaser of personal property. In De Mattos v. Gibson,1
the English Court of Appeal suggested that such covenants would bind a purchaser.
However, there is still much uncertainty about the scope of such covenants. In
Malaysia, it was said, purely obiter dictum, in Tam Kam Cheong v. Stephen Leong
Kon Sang2 that it was an extended application of the principle in real property,
where restrictive covenants which touch and concern the dominant covenant bind
third party purchasers, and as such only applied to ships (which bear a close
analogy with land). In any case, even in England, the principle is restricted to
situations where the covenant relates to a speciﬁc item of property3 and only applies
to a grant of a negative injunction.4 It is uncertain how far the principle will be
applied in Singapore.
1. (1859) 4 De G & J 276.
2.  1 MLJ 36.
3. Mac-Jordan Construction Ltd. v. Brookmount Erostin Ltd.  56 Build LR 6.
4. Law Debenture Trust Corp. plc. v. Ural Caspian Oil Corp. Ltd.  2 All ER 355.
Property and Trust Law (February 2000) Singapore – 103
Chapter 4. Security Interests
262. These are rights to look to an asset for the payment of an obligation, often
a debt. ‘A proprietary interest provided by way of security entitles the holder to
resort to the property only for the purpose of satisfying some liability due to him
(whether from the person providing the security or a third party) and, whatever the
form of the transaction, the owner of the property retains an equity of redemption
to have the property restored to him when the liability has been discharged’.1
Consequently, the best way to think of a security interest is to see it as carved out
of the absolute interest in the property. It is a right subsidiary to the primary
obligation of the debtor to personally repay the debt.
1. Morris v. Agrichemcials Ltd.  3 WLR 909.
263. Security interests exist both at law and in equity. Common law security
like the pledge and the lien are founded on possession; title to the collateral remains
with the borrower, who gives up possession to the creditor. Legal mortgages in-
volve a transfer of the legal title to the mortgagee, with the mortgagor retaining
the equity of redemption. Equitable security includes non-possessory security like
charges, equitable mortages, and equitable liens. These forms of security are sub-
ject to the doctrine of equity’s darling, i.e., the purchaser of a legal interest for
value without notice takes free of prior equitable security. Due to their lack of
transparency, non-possessory forms of security often have to be registered, in the
case of individuals, under the Bills of Sale Act,1 and in the case of companies,
under the Companies Act.2 Attempts are often made to obviate the need for regis-
tration by structuring a transaction such that it does not appear to have the char-
acteristics of security. The position in Singapore appears to be that this will normally
succeed if sufﬁcient care is taken in the drafting of the security document.3 In other
words, courts will not look beyond the intentions of the parties as expressed in the
document when deciding whether any or what form of security has been created.
1. Cap. 24 1985 Rev Ed.
2. Cap. 50 1994 Rev Ed.
3. Thai Chee Ken v. Banque Paribas  2 SLR 609 (sale and repurchase agreement did not
create a charge).
104 – Singapore Property and Trust Law (February 2000)
Part III. Acquisition of Property Rights
Chapter 1. Transfer of Property by Contract Inter Vivos
§1. Importance of Ownership
264. It is often crucial to determine where the right to property lies. This is
especially so in insolvency situations since the trustee in bankruptcy or ofﬁcial
assignee administers only property beneﬁcially belonging to the insolvent party.
However, ownership is also sometimes important in determining who receives the
beneﬁts of the fruits or secondary proﬁts acquired through the use of the primary
property. It also determines on whom the risk of loss or damage to the property lies.
Further, once property passes from seller to buyer, the former can sue the buyer for
the price of the goods, an action for a debt, and can avoid the inconvenience of
suing for damage suffered. In England, although illegality renders a contract void,
it may not reverse the conveyancing effect of that contract, where the claim can be
asserted without reference to the illegal purpose.1 In Singapore, however, the Court
of Appeal in Suntoso Jacob v. Kong said that ‘(e)ven if the appellant is relying on
the resulting trust of the said shares by virtue of the transfer thereof to the respond-
ent without any payment, the unlawful purpose of the transfer cannot be ignored.’2
1. Bowmakers Ltd. v. Barnet Instruments Ltd.  KB 65.
2.  2 MLJ 170 at p. 173. Compare Tinsley v. Milligan  1 AC 340.
265. The forms for the contract for the sale of land differ depending on whether
the property sold is commercial or residential property in the course of construction
and whether they are sold by developers or by individual owners. In regard to the
sale of property by owners who are not developers the applicable law for the form
of the contract is governed by general law. The sale of property in the course of
construction by developers are governed by legislation which prescribe special stand-
ard form contracts for residential developments and for commercial developments.
I. Sale by Non-developers
266. Prior to a conveyance on sale there is ﬁrst a contract for the sale and
purchase of the land. In order to be valid a contract for the sale and purchase of
Property and Trust Law (February 2000) Singapore – 105
267–269 Part III, Ch. 1, Transfer of Property by Contract Inter Vivos
land has to have the three Ps, viz., the parties must be clear, the property must be
clear and the price must be certain. To be enforceable a contract for the sale and
purchase of land has to be in writing, or there must be a memorandum of the
contract, signed by the party to be charged.1 Where the contract itself is not in
writing the memorandum must contain the terms agreed upon and indicate that
the parties have agreed to those terms.2 It is common for the actual contract to be
preceded by the grant, by the vendor, of an option to purchase. Usually on the
exercise of the option accompanied by the payment of 10 per cent of the purchase
price, the contract then comes into existence.3
1. Section 6A(d) Civil Law Act Cap. 43 1994 Rev Ed.
2. Ku Yu Sang v. Tay Joo Sing & Anor  3 SLR 938; Christina Lee v. Eunice Lee 
3 SLR 8.
3. Ng Soo Kim v. Heng Teo Bong  1 SLR 407.
267. Where there is neither a contract in writing nor a sufﬁcient memorandum
of the contract the equitable doctrine of part performance may be applicable.1 There
may be a doubt as to the applicability of part performance under Section 6A(d)
Civil Law Act as the section does not speciﬁcally retain the doctrine as does the
former Section 40 Law of Property Act 1925 England to which Section 6A(d) is
in pari materia.2 However, there are as yet no cases on this point and in any event
there remains the doctrine of equitable estoppel.
1. Steadman v. Steadman  AC 536.
2. Crown, Cutting the apron strings: The localisation of Singapore’s Land and Trust Law (1995)
SJLS 75 at pp. 77–81. In England Section 40 Law of Property Act 1925 has been amended by
Section 2 Law of Property (Miscellaneous Provisions) Act 1989.
268. The contract may be conditional, e.g., subject to satisfactory replies, or sub-
ject to approval of a third party being given. In this case the parties are in contract
but the contract becomes enforceable only when the condition is fulﬁlled.1 Where
the condition is not satisﬁed the parties are left to their remedies as set out in the
1. Ong Bok Realty Pte. Ltd. v. Chian Hong (Pte.) Ltd.  2 MLJ 37; Selvadurai Pala Krishnan
v. Francis Adrian & Co Pte. Ltd.  2 MLJ 182; Chi Lung Holdings Sdn. Bhd. v. Attorney
General  2 SLR 354.
2. Chye Seng Huat Construction Pte. Ltd. v. Goh Chin Soon  1 MLJ 1077.
269. Once there is a binding contract for the sale and purchase the equitable
interest passes to the purchaser leaving the vendor with the title as constructive
trustee.1 Property can be said to pass when there is a binding contract. This is the
position unless the contract is a conditional one. The purchaser bears the risk of the
property being damaged.2 However, where the circumstances so justify, viz., ‘when
without default of either party, a contractual obligation has become incapable of
being performed because the circumstances in which performance is called for
would render it a thing radically different from that which was undertaken by the
contract . . .’ the doctrine of frustration of contract can apply.3 This doctrine was
106 – Singapore Property and Trust Law (February 2000)
Transfer of Property by Contract Inter Vivos, Part III, Ch. 1 270 –272
applied to a case where the land contracted to be sold was made subject to com-
pulsory acquisition before the conveyance was completed.4
1. Lysaght v. Edwards (1876) 2 Ch D 499; Christina Lee v. Eunice Lee  2 SLR 8; Lim Kim
Som v. Sheriffa Taibah bte Abdul Rahman Alsagoff  1 SLR 393.
2. Rayner v. Preston (1881) 21 Ch D 1 and Section 3(13) Conveyancing and Law of Property Act.
3. Davis Contractors Ltd. v. Fareham District Council  AC 696.
4. Lim Kim Som v. Sheriffa Taibah bte Abdul Rahman Alsagoff  1 SLR 393.
270. Where the parties enter into a contract with only the parties, price and
property ascertained, they have an open contract and the terms as set out in Section
3 Conveyancing and Law of Property Act apply. These provide for the rights and
obligations of the parties as to title, e.g., a purchaser shall not be entitled to require
title to be deduced for more than ﬁfteen years. The Law Society has also a set of
standardized conditions of sale which parties may incorporate into their contract.1
On completion date the vendor transfers the title to the purchaser on receipt of the
balance of the purchase price.
1. The Law Society Conditions of Sale.
II. Sale of Units by Developers in Developments for Residential and
271. The practice in regard to the sale of units by developers in a development
whether for residential or commercial purposes, is for the developer to offer the
units for sale even before the building is constructed. Potential purchasers enter into
contracts to buy simply on the strength of plans and ‘mock ups’ of units. Purchasers
pay in instalments as the construction of the building progresses and the last instal-
ment is paid only on completion date. Purchasers thus need to be protected from
developers who may not be able to complete the projects. Another not uncommon
feature is that when the building is ready and the actual demarcation of the sub-
division of the units are done the area that was agreed to be bought may be different
from that which is actually transferred on completion. Thus to ensure that purchas-
ers are adequately protected legislation was enacted to govern the sale of units in
residential and commercial developments.
A. Residential Developments
272. The Housing Developers (Control and Licensing) Act1 govern the devel-
opment of housing for residential purposes. Under this Act housing developers
must be licensed before they can carry on the business of housing development.
This is deﬁned as the business of developing or ﬁnancing the development of more
than four units of ‘housing accommodation’, which in turn is a building constructed
and intended for human habitation or human habitation and business purposes.
1. Cap. 130 1985 Rev Ed.
Property and Trust Law (February 2000) Singapore – 107
273–276 Part III, Ch. 1, Transfer of Property by Contract Inter Vivos
273. Option agreements and contracts for sale of units in a ‘housing develop-
ment’ must be in the forms prescribed in the Act.1 Variations to the prescribed are
permitted only with the prior consent of the authorities. The prescribed forms
regulate closely the rights and duties of both purchaser and developer including
setting out a schedule for payments of instalments.
1. The prescribed forms are set out in the Housing Developers Rules Cap. 130 R1 1990 Ed. as
amended by Housing Developers (Amendment) Rules 1997.
274. The transaction is completed when the developer transfers the strata title
that is issued to him to the purchaser. This should take place at the latest three years
from the time of the delivery of vacant possession of the unit. Should the area of
the unit transferred be larger than that agreed to be sold the vendor may not adjust
the price although should the area be less than that agreed to be sold by more than
3 per cent the purchaser is entitled to an adjustment of the price for deﬁciency
which exceeds 3 per cent.
B. Commercial Developments
275. The sale of commercial properties where the building is not completed or
where the certiﬁcate of ﬁtness has not been given, is governed by the Sale of
Commercial Properties Act.1 For the purposes of the Act ‘commercial property’
refers to a unit in a building (where there are more than four units) which are used
for a purpose other than a residential purpose. The Act provides for a standard
form contract for sale and purchase as well as for the option that precedes the
contract. They are on lines similar to that prescribed for residential housing devel-
opments. The object of the terms in the standard form contract is to protect the
purchaser hence no variation is permitted except with the prior consent of the
authorities.2 However, where the prescribed form leaves a blank to be ﬁlled in by
the parties, e.g., the date for completion, a subsequent variation, without the per-
mission of the authorities, of the date earlier ﬁlled in is not regarded as a variation
of the form.3
1. Cap. 281 1985 Rev Ed.
2. Sale of Commercial Properties Rules Cap. 281 R 1 1990 Ed. as amended by Sale of Commercial
Properties (Amendment) Rules 1997.
3. Mun Hean Realty Pte. Ltd. v. Fu Loong Lithographer Pte. Ltd.  1 SLR 713.
276. The standard form of the contracts under both the Housing Developers
(Control and licensing) Act and the Sale of Commercial Property Act provide for
the remedies available to a vendor in the event of breach are set out in the regu-
lations. It has been held in Excelsior Hotel Pte. Ltd. v. Hiap Bee (Singapore) Pte.
Ltd.1 that this does not oust the remedies available at general law. Thus although
the prescribed remedy is damages the vendor may sue for speciﬁc performance.
1.  2 MLJ 211.
108 – Singapore Property and Trust Law (February 2000)
Transfer of Property by Contract Inter Vivos, Part III, Ch. 1 277–279
§3. Tangible Property: Chattels
277. The transfer of intangibles will be dealt with in the section on assignments
of choses in action. Our concern here is with the consensual transfer of tangible
property pursuant to a contract, i.e., where consideration for the promise to transfer
is furnished. The relevant rules are found in the Sale of Goods Act.1 Section 17(1)
of that Act states that: ‘Where there is a contract for the sale of speciﬁc or ascer-
tained goods, the property in them is transferred to the buyer at such time as the
parties to the contract intend it to be transferred.’ Delivery is thus unnecessary
where the parties intend that the property in speciﬁc or ascertained goods is trans-
ferred prior to that time.
1. Cap. 393 1994 Rev Ed.
II. Speciﬁc Goods
278. Section 61 of the Act deﬁnes ‘speciﬁc goods’ as ‘goods identiﬁed and
agreed on at the time a contract of sale is made and includes an undivided share,
speciﬁed as a fraction or percentage, of goods identiﬁed and agreed on as afore-
said’. Where goods are speciﬁed, the passing of property depends on the intention
of the parties. To discern those intentions, a series of presumptions are provided by
Section 18 of the Act:
Rule 1. – Where there is an unconditional contract for the sale of speciﬁc
goods in a deliverable state, the property in the goods passes to the buyer
when the contract is made, and it is immaterial whether the time of payment
or the time of delivery, or both, be postponed.
279. The rule can appear to be harsh on the seller of the goods, but this is
mitigated by the fact that the seller retains an unpaid seller’s lien by virtue of
Section 41 of the Act. Again, the rule is only a presumption, and can be overcome
by evidence of the parties’ intentions. For example, the insertion of a retention of
title or Romalpa clause1 would show that the parties agree that the seller retains title
to the goods until payment is made. However, the parties’ intentions must be
possible of fulﬁlment, thus Romalpa clauses may not work if drafted so widely as
to include title to new or transformed goods resulting from the seller’s original
goods. Section 19 statutorily preserves the seller’s right to dispose of the goods,
particularly in international trade situations, where the bill of lading states that the
goods are deliverable to the order of the seller or his agent. As will be seen later,
the bill of lading is a document of title to goods contained on the ship, and repre-
sents the underlying goods. A further caveat to Rule 1 is provided by Rules 2 and
3 of the same section, i.e., the contract may require the seller to put the goods in
a deliverable state or to weigh, measure and test the goods for the purpose of
Property and Trust Law (February 2000) Singapore – 109
280–281 Part III, Ch. 1, Transfer of Property by Contract Inter Vivos
ascertaining the price. The seller would then have to comply with these require-
ments and notify the buyer before Rule 1 can operate.
1.  1 WLR 676, see below at para. 379.
III. Unascertained Goods
280. Unascertained goods are not deﬁned, and include an undifferentiated portion
of an identiﬁed bulk of goods. Section 16 states that property in unascertained
goods cannot pass until they have become ascertained. However, an exception to
this rule is now provided by the Sale of Goods Amendment Act 19961 in cases
where a stated portion of undivided property is sold in an identiﬁed bulk. In such
instances, the buyer becomes the co-owner of the bulk to the extent of his propor-
tionate share in that bulk. This amendment meets the needs of traders dealing with
bulk cargos in international trade.
1. Following the 1995 UK amendments.
281. In all other cases, Section 18 Rule 5(1) requires the goods to be uncon-
ditionally appropriated to the contract by the seller or buyer, with the assent of the
other. Assent is often identiﬁed from the acts of the parties, e.g., buyer handing
over a container to the seller for the latter to load the purchased goods.1 The
requirement of unconditional appropriation usually means that the goods have been
unequivocally set aside and identiﬁed,2 although the doctrine of exhaustion is of
some assistance here, i.e., if the remaining residue after other orders are met coin-
cides with the buyers’ share.3
1. Aldridge v. Johnson (1857) 7 E & B 885.
2. Carlos Federspiel v. Twigg  1 Lloyds Rep 240.
3. The Elaﬁ  1 All ER 208, Section 18 Rule 5(3) and (4).
110 – Singapore Property and Trust Law (February 2000)
Chapter 2. Transfer of Property by Death
§1. Law Applicable to Adherents of the Muslim Faith
282. The Administration of Muslim Law Act1 applies to adherents of the Muslim
faith and the distribution of property on the death is governed by Part VII of that
Act. Section 111 states that not withstanding any other written law no Muslim
domiciled in Singapore shall dispose of his property on death except in accordance
with the provisions of the school of Muslim law professed by him. Where a Muslim
person dies intestate domiciled in Singapore his estate and effects shall be distrib-
uted in accordance with Muslim as modiﬁed where applicable by Malay custom.2
1. Cap. 3 1985 Rev Ed.
2. Section 112 Administration of Muslim Law Act Cap. 3 1985 Rev Ed.
283. The money in the Central Provident Fund to which a Muslim person is
entitled does not form part of his estate under the Administration of Muslim Law
Act. Accordingly where he has, in his lifetime, made a nomination under the Cen-
tral Provident Fund Act,1 his nominee will be beneﬁcially entitled to the money.2
1. Section 25 Central Provident Fund Act Cap. 36 1997 Rev Ed.
2. Saniah bte Ali v. Abdullah Bin Ali  3 MLJ 135. See also B. Crown, ‘Death and the Central
Provident Fund’  1 MLJ cxiv.
§2. In General
I. By Will
284. Except in regard to persons of the Muslim faith, there is freedom of testa-
tion in Singapore subject only to the limited control under the Inheritance (Family
Provisions) Act.1 The owner of any interest in any property, of sound mind, may
dispose of his interest under a valid will. The will must be executed in accordance
with the Wills Act2 which requires that the will be in writing, signed by the testator
in the presence of two witnesses who must acknowledge his signature in his pre-
sence. Further the testator must have a disposing mind and memory at the time the
will is made.3
1. Cap. 138 1985 Rev Ed.
2. Cap. 352 1985 Rev Ed.
3. Bankes v. Goodfellow (1870) LR 5 QB 549 at p. 565.
II. Intestate Succession
285. Where a person domiciled in Singapore dies without leaving a valid will
all his property movable and immovable will be distributed in accordance with
Property and Trust Law (February 2000) Singapore – 111
286–288 Part III, Ch. 2, Transfer of Property by Death
Section 7 Intestate Succession Act.1 The Act also applies to immovable property in
Singapore of any person who is not domiciled in Singapore at the time of death.2
The rules in Section 7 provide for the different classes of next of kin of the
deceased who shall be entitled to his estate. In the absence of any next of kin the
rules provide for the State to be entitled.
1. Cap. 146 1985 Rev Ed.
2. Section 5 Intestate Succession Act.
III. By Nomination
286. The money to which a member of the Central Provident Fund is entitled
is deemed to be not part of his estate when he dies and is not be subject to his debts
except estate duty payment.1 Under Section 25 Central Provident Fund Act a member
of the Fund may, in his lifetime, make a nomination in regard to the money in the
Fund to which he is entitled. Any number of nominations may be made so long as
the provisions of the Act are complied with. The last valid nomination will be the
operative one on his death. The money is deemed to be impressed with a trust in
favour of the person nominated.2 Where the member does not make a valid nomi-
nation in his lifetime, on his death the money to which he is entitled will be paid
to the Ofﬁcial Assignee who will dispose of it in accordance with the written law
in force.3 Although under Section 24(3) the money is deemed not to form part of
the deceased member’s estate in practice the Ofﬁcial Assignee pays such money
received to the persons entitled to his property under his will if there is one or to
those entitled as on intestacy where he died without a valid will.4
1. Section 24(3) Central Provident Fund Act.
3. Section 25(2) Central Provident Fund Act.
4. See B. Crown, ‘Death and the Central Provident Fund’  1 MLJ cxiv.
IV. Right of Survivorship
287. Where property is held by two persons as joint tenants, unless the joint
tenancy has been severed in the lifetime of a joint tenant, on the death of one of
the joint tenants the survivor becomes to the entire interest as the sole owner. A
joint tenant may not dispose of his interest in property which he holds in a joint
tenancy, by will. Where there are more than two joint tenants the surviving joint
tenants remain as joint tenants of the property.1,2
1. See above Part 1 Chap 6.
2. Section 37(1) Probate and Administration of Estates Act Cap. 251, 1985 Rev Ed.
V. Donatio Mortis Causa
288. While this is not strictly a transfer of property by death, it is a transfer
on death. It only applies to personal property, including intangibles which are
112 – Singapore Property and Trust Law (February 2000)
Transfer of Property by Death, Part III, Ch. 2 289–291
represented in a physical form, e.g., bank deposit books. This is because a valid
donatio mortis causa requires delivery of the subject matter of the gift during the
donor’s lifetime, although a constructive delivery sufﬁces. A gift of land made in
contemplation of death can also be perfected by the delivery of title deeds by way
of a trust arising by operation of law.1
1. Sen v. Headley  2 All ER 636.
289. However, the donor only intends for the gift to take effect on his death –
the gift is in contemplation of death. In a sense, donatio mortis causa is an excep-
tion to both the form of transfer by inter vivos gift (which as we will see requires
an intention to make a present and complete gift)1 as well as by way of a will
(which requires compliance with the requirements of the Wills Act). If, however,
the donor does not die, the donatio mortis causa does not take effect, so that the
donee will hold the property for the donor on a form of bailment.
1. This is the preferred view: In the Matter of Order 17 Rules 1(1)(a) and 3(1) of the Rules of the
Supreme Court (Originating Summons No. 811 of 1994, 20 January 1998).
§3. Personal Representatives
290. On the death of a person leaving a valid will where he has appointed
executors, such executors may apply for the grant of probate.1 Probate shall not be
granted to more than four persons.2 A person appointed executor may renounce the
appointment.3 Where an executor dies before the estate is fully administered the
representation of the estate shall accrue to the surviving executor. Where the sole
executor dies before the estate has been fully administered, leaving a will in which
he has appointed executors his executors shall be executors of the estate that the
deceased was administering. This chain of representation is broken only where the
last executor dies intestate.4 In such circumstances letters of administration de bonis
non will have to be appointed for the original testator.5
1. Section 8 Probate and Administration Act Cap. 251 1985 Rev Ed.
2. Section 6 Probate and Administration Act.
3. Section 3 Probate and Administration Act.
4. Section 16A Civil law Act Cap. 43 1994 Rev Ed., Syed Ali Redha Alsagoff v. Syed Salim
Alhadad  3 SLR 415 at p. 420.
5. Section 16A Civil law Act.
291. Where the deceased died without appointing executors in a valid will or
where he died intestate, until the appointment of administrators, the estate of the
deceased vests in the Chief Justice.1 Letters of administration may be granted to the
spouse or next of kin of the deceased. Where no such person applies any creditor
Property and Trust Law (February 2000) Singapore – 113
292 Part III, Ch. 2, Transfer of Property by Death
of the deceased may apply for letters of administration.2 Where an administrator
dies before the estate is fully administered the representation of the estate accrues
to the surviving administrators. On the death of the last surviving administrator, an
administrator de bonis non must be appointed for the estate of the original deceased.
Unlike the case of the last surviving executor there is no automatic passing of the
administration to the second administrator.3
1. Section 37 Probate and Administration Act.
2. Section 18 Probate and Administration Act.
3. Syed Ali Redha Alsagoff v. Syed Salim Alhadad  3 SLR 415 at p. 420.
III. Estate Duty
292. Estate duty has to be paid on the passing of all property to which the
deceased was beneﬁcially entitled.1 Estate duty is a ﬁrst charge on the estate and
must be paid before any grant of any representation shall be issued by any court.2
After the estate duty has been paid the personal representatives may proceed with
the administration of the estate. Any one personal representative may deal with the
estate and give a valid receipt, except in regard to the sale of land where the receipt
must be given by at least two personal representatives.3 An order of court must be
obtained before any part of the estate be mortgaged or sold after six years from the
date of death unless the mortgage or sale is authorized by the will.4 In regard to
land governed by the Land Titles Act the executors must register the transmission
of the land to them prior to their effecting any dealings.5
1. Sections 6–14 Estate Duty Act Cap. 96 1985 Rev Ed. Exceptions to liability to estate duty are
gifts made for at least ﬁve years, or in the case of a gift to a charity at least one year, prior to
2. Sections 29 & 42, Estate Duty Act.
3. Section 18 Trustees Act Cap. 337 1985 Rev Ed.
4. Section 35(2) Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed. Syed Ali Redha
Alsagoff v. S.S. Alhadad  3 SLR 410, United Overseas Finance Ltd. v. Sakayamary
 3 SLR 211.
5. Section 107 Land Titles Act Cap. 157 1994 Rev Ed.
114 – Singapore Property and Trust Law (February 2000)
Chapter 3. Possession
293. There is very little land that is res nullius today, so acquisition by posses-
sion where land is concerned refers to acquisition by adverse possession. Prior to
1994 Section 9 of the Limitation Act1 provided that no action can be brought to
recover any land after a period of twelve years from the time the cause of action
accrued. The cause of action accrued from the time the owner was dispossessed by
the adverse owner. ‘Adverse’ in this context meant that the possession must not be
given with the consent, express or implied, of the paper owner. However, Section
177 of the Land Titles Act2 now provides that in the context of registered land, no
title can be acquired by adverse possession (see above under Possession and Title).
There is more scope for the acquisition of property rights by way of possession
where personal property is concerned. Possession, however, is a relative concept.
It depends on both the fact of possession and the animus or intention to possess.
The common law generally recognizes that it is more difﬁcult to acquire an interest
than to maintain it. This is in order to protect the sanctity of prior possession. For
example, it is extremely difﬁcult, if not impossible, to acquire an interest in com-
mingled property. There are, however, rules to trace property already owned, into
such property.3 So it is with possession. Much would also depend on the nature of
the property one is seeking to possess. Conversely, possession is lost only if there
is both the animus and factum of abandonment.
1. Cap. 163 1985 Rev Ed.
2. Cap. 157 1993 Ed.
3. See below at para. 310.
§2. Constructive Possession
294. This is sometimes confused with symbolic possession, which occurs when,
for example, an item is delivered that is intended to symbolize delivery of the
whole. Things are in constructive possession when they are held by one’s agent or
bailee. To effect a delivery of property held by a third party, such as a warehouse-
man, the latter’s attornment is necessary to show that he is now holding the prop-
erty as agent or bailee for the buyer. This would be needed in cases where delivery
orders or warrants are given by the seller to the buyer. However, where the docu-
ment has acquired the status of a negotiable instrument, such as a bill of lading,
negotiation of such a bill will automatically serve as constructive delivery of the
underlying property.1 Again, while there has to be delivery by the seller and accept-
ance by the buyer before possession is effectively transferred, this can occur with-
out physical delivery if the nature of the seller’s possession changes to that of an
agent or bailee of the buyer.
1. Lickbarrow v. Mason (1787) 2 TR 63. In Singapore and Malaysia, mates’ receipts are by custom
treated like bills of lading: Chan Cheng Kum v. Wah Tat Bank Ltd.  1 MLJ 177.
Property and Trust Law (February 2000) Singapore – 115
295 Part III, Ch. 3, Possession
295. Where ownership has not been abandoned, but only possession, a ﬁnder
who takes possession acquires a right which is subordinate only to that of the true
owner. The ﬁnder is treated like a bailee, and is expected to respect the title of the
true owner, the ﬁctitious bailor. In addition, the ﬁnder is expected to search for
the true owner.1
1. Parker v. British Airways Board  QB 1004; Daniel S/O D William v. Luhat Wan 
2 MLJ 48.
116 – Singapore Property and Trust Law (February 2000)
Part IV. Trust and Fiduciary Mechanism
Chapter 1. Administration of Property/Trusts
310. Equitable interests were examined in Part II above. Our concern here is
with a particular equitable interest, that arising under a trust. Trust interests can
arise through the express arrangement of settlor, trustee (who could also be the
settlor in the case of a self-declared trust) and beneﬁciary (although strictly speak-
ing the latter need not consent to it1). The trust device allows management respon-
sibility to be vested in the trustee while beneﬁcial enjoyment of the property resides
with the cestui que trust or beneﬁciary. The duties imposed on an express trustee
are extremely onerous, and may include the duty to invest the trust property, to
keep proper accounts, and the like. Although trustees may delegate some of their
powers to co-trustees or agents, they remain under a duty to supervise the co-trustee
or agent. Upon a breach of duty, the trustee is generally required to restore the trust
to its pre-breach position. Under Section 63 of the Trustees Act,2 however, a court
may be able to relieve a trustee from the consequences of a breach of trust if
convinced that the trustee had acted honestly and reasonably, and ought reasonably
to be excused from liability.
1. Standing v. Bowring (1885) 31 Ch D 282.
2. Cap. 337 1985 Rev Ed.
311. Alternatively, trust interests can arise by operation of law, so called con-
structive trusts. In this context care has to be taken not to confuse what are true
constructive trusts with the in personam liability of certain wrongdoers to compen-
sate the trust or restore trust property like a trustee mismanaging a trust. True
equitable interests can subsist even in commingled property. In equity, this requires
the existence of a ﬁduciary relationship and the continued identiﬁcation of property.
There the latter is concerned, equity presumes that a trustee acts honestly and con-
sequently dissipates his own share of the mixed fund rather than the beneﬁciaries.1
Even the true constructive trust, however, does not impose the same strict manage-
ment duties that exist with the express trustee.
1. Re Hallett’s Estate (1880) 30 Ch D 696; Hongkong & Shanghai Bank v. UOB  2 SLR
Property and Trust Law (February 2000) Singapore – 123
312–314 Part IV, Ch. 1, Administration of Property/Trusts
§2. Resulting Trust
312. Somewhere between the express and constructive trust lies the resulting
trust, which is presumed in cases of a gratuitous transfer of property from one party
to another. Unless there is an express declaration of trust or agreement, the beneﬁ-
cial interest will generally belong to the parties in the proportion in which they
provided the purchase money towards the acquisition of property. This is the case
even if the property is put in joint names at law, as this is presumed to be the real
but unexpressed intention of the payer.1 The law is somewhat complicated here
since the presumption of resulting trust can sometimes be countered by the pre-
sumption of advancement, where a man puts property in the name of his wife or
child.2 However, the modern trend is to discern the parties’ intentions from the
surrounding evidence, rather than to rely on these presumptions.3
1. Chia Kum Fatt v. Lim Lay Choo  3 SLR 833.
2. In Australia, the presumption can apply gifts by the mother to a child: Nelson v. Nelson (1995)
184 CLR 538.
3. Neo Tai Kim v. Foo Stie Wah  1 MLJ 397 (PC from Singapore).
313. In cases of vitiated agreements to transfer property, a resulting trust could
also arise when the contract is set aside and the recipient is found to have acted
unconscionably.1 It has, however, been held in Singapore that money paid pursuant
to a fraudulent misrepresentation is automatically held on trust,2 and that a common
and mutual mistake in a land transaction could prevent title to the property from
passing.3 The resulting trust can also arise automatically, where there is a gap in
beneﬁcial ownership. This is one way of explaining the secondary trust in Barclays
Bank v. Quistclose Investment,4 where money lent for a particular purpose was held
on trust for the creditor when the purpose failed. When this happens the property
is extracted from the estate of the borrower for the beneﬁt of the creditor. It should
be noted, however, that it will often not be easy to impress money with a purpose
or a trust. The purpose has to be clearly deﬁned and sufﬁciently certain.5
1. Westdeutsche Landesbank Girozentrale v. Islington London Borough Council  2 WLR
802 (HL); Tjio  SJLS 608.
2. Standard Chartered Bank v. Sin Chong Hua  3 SLR 863.
3. Or Chor Seng v. Tjinta Pte. Ltd. (in liq)  1 SLR 48.
4.  AC 567.
5. Ramnani v. Vaswani  2 SLR 740.
§3. Express Trusts
314. An express trust is created when the following conditions are satisﬁed: (a)
formalities for its creation; (b) certainty of intention, subject matter and objects
(i.e., beneﬁciaries); (c) proper constitution or transfer of the trust property to the
trustees. Section 6B(1) of the Civil Law Act1 requires a declaration of trust involv-
ing land to be evidenced in writing. The writing has to be provided by the person
able to declare the trust, but want of writing only makes the trust unenforceable,
not void. While not strictly relevant to the declaration of a trust, Section 6B(2)
124 – Singapore Property and Trust Law (February 2000)
Administration of Property/Trusts, Part IV, Ch. 1 315–318
requires all dispositions of an equitable interest to be in writing. This would apply
to a beneﬁciary seeking to transfer its interest under a trust, and perhaps even to
a declaration of a sub-trust by the beneﬁciary.2 Section 6B(3) provides that Sub-
Sections (1) and (2) do not apply to the creation or operation of resulting, implied
or constructive trusts.
1. Cap. 43 1994 Rev Ed.
2. Green (1984) Modern LR 385.
315. For a trust to be validly created, the settlor must manifest the intention so
to do. Mere precatory words of hope are not enough. The intention must be to
create a present irrevocable trust in the beneﬁciary’s favour.
316. The subject matter of the trust has also to be certain, since the general
rule is that property can only pass, here to the trustee to hold for the beneﬁciary,
when the property is ascertained. We have seen, however, that the requirement of
ascertainability may be less stringent in the case of certain choses in action like
shares,1 so that the declaration of trust over part of a pool of shares is sufﬁciently
certain for the trust to be validly created, without the need for segregation of that
part from the rest of the pool. A trust of the residuary estate is sufﬁciently certain.
1. Hunter v. Moss  1 WLR 452.
317. The objects or beneﬁciaries of the trust also have to be sufﬁciently certain
in order for trustees to carry out their duties, unless the trust is considered chari-
table. A charitable trust has to be for one of the following purposes: relief of
poverty, advancement of education or religion, or for other purposes beneﬁcial to
the community. In addition, there has to be an element of public beneﬁt created by
the charitable trust. In the case of non-charitable ﬁxed trusts, the trustees must be
able to draw up a complete list of all the beneﬁciaries that are entitled to share in
the estate, since a mistake made in the case of one beneﬁciary will invariably affect
the shares of all the other beneﬁciaries. This is, however, not the case with discre-
II. Discretionary Trusts
318. This is an express trust in which no individual beneﬁciary has a right to
any particular part of the trust fund. Instead, the trustees are given the discretion,
which they have to exercise, to nominate which beneﬁciary or beneﬁciaries from
within a class of beneﬁciaries would beneﬁt. Until their discretion is exercised, the
individual beneﬁciary only has a right to be properly considered by the trustees.
However, the trustees are under a ﬁduciary duty to properly consider the appoint-
ment.1 Given these duties, the class of objects has to be sufﬁciently certain in order
for the trustee to properly administer the trust. The test is, however, not as strict as
Property and Trust Law (February 2000) Singapore – 125
319 Part IV, Ch. 1, Administration of Property/Trusts
in the case of a ﬁxed trust: all that is needed is for the trustee to say of any person
whether he or she is within or without the class.2 The class must not, however, be
so wide as to render the trust administratively unworkable.3
1. McPhail v. Doulton  AC 424.
2. McPhail, followed locally in Hongkong Bank Trustee (Singapore) Ltd. v. Farrer Tan  1
3. R v. District Auditor ex p. West Yorkshire Metropolitan County Council (1986) 26 RVR 24.
319. A trust also has to be completely constituted, i.e., the trust property must
properly vest in the trustee. The law of gifts is relevant here. If it is not completely
constituted, then the trust or promise to create a trust cannot be enforced by the
beneﬁciary, who is but a volunteer. In the three-party situation of settlor, trustee
and beneﬁciary, the settlor has to do everything in his power to transfer the subject
matter of the trust to the trustee. In the case of shares for example, the transfer form
has to be duly executed and delivered along with the share certiﬁcates, even if
registration only occurs sometime later.1 However, the principle would not apply
where there may be a decisive intervening factor, such as the approval of a third
party.2 Actual formalities depend on the nature of the property; with chattels, mere
delivery sufﬁces, in the case of shares, the transfer form has to be properly ex-
ecuted. In the two-party situation, no transfer is required, since the settlor is the
trustee. What is crucial is that there has to be an present irrevocable intention on
the part of the settlor/trustee to create a trust. However, the court will not ﬁnd in
an imperfect transfer of property to a third party trustee a self-declaration of trust
by the settlor.3 In a highly exceptional situation, however, a court may ﬁnd that the
promise to transfer property in itself constitutes the subject matter of a trust that is
held by the trustee on behalf of the beneﬁciary.4
1. Re Rose  Ch 497.
2. Re Lee Phee Soo (1960) 26 MLJ 75, where permission of Controller under the Finance Regu-
lations then in force to transfer the shares had not been obtained.
3. Milroy v. Lord (1862) 4 De G F & J 264.
4. Fletcher v. Fletcher (1844) 4 Hare 67.
126 – Singapore Property and Trust Law (February 2000)
Chapter 2. Trusts Arising by Operation of Law
§1. Constructive Trust
320. There is no single principle behind the constructive trust. Among some
of the impulses behind it is the desire to prevent fraud or unconscionable conduct
and to reverse an unjust enrichment. Constructive trusts often arise by operation
of the law, and may be imposed in spite of the intentions of the relevant parties.
One difﬁculty with this area of law is that it was not altogether clear when the
constructive trust arises, as that would have ramiﬁcations for third parties dealing
with the constructive trustee. In Singapore, there is little indication that the courts
are willing to utilize the constructive trust as a remedy, which requires the claimant
to obtain a court order before the interest crystallizes. It is generally the case that
the constructive trust arises automatically by operation of law once the qualify-
ing conditions are satisﬁed, which conditions will now be examined. Simply put,
the court order only vindicates the pre-existing equitable interest. There are,
however, some signs that courts are willing to impose the constructive trust as a
1. Sumitumo Bank v. Kartika Ratna Thahir, The Pertamina case  1 SLR 735; Tjio 
I. Prevention of Fraud or Unconscionable Conduct
321. This category is frequently invoked in the context of land, particularly
matrimonial or quasi-matrimonial property. Where couples have come to a com-
mon understanding that one of them will hold property on trust for both of them,
and the other acts to his or her detriment in reliance on that understanding, a
constructive trust arises to protect the interest of the other. However, the basis
of that common intention has to be a representation by words. Exceptionally,
conduct can form the basis of this common understanding. However, it appears
that the only relevant conduct is some form of contribution towards the purchase
of the co-owned property.1 There are signs that the common law is, however,
willing to search for other forms of conduct for evidence of the common under-
standing.2 In Singapore, the Women’s Charter also provides that in the case of
matrimonial property, ‘the division between the parties of the proceeds of the sale
of any such asset in such proportions as the court thinks just and equitable.’
However, the relevant provisions only apply in cases of nullity, judicial separation
1. Lloyds v. Rosset  1 AC 107, applied in Tan Thiam Loke v. Woon Swee Kheng  1
SLR 232, but where the court found that there was no detrimental reliance.
2. Midland Bank v. Cooke  4 All ER 562.
3. Section 112 Women’s Charter Cap. 353 1997 Rev Ed.
Property and Trust Law (February 2000) Singapore – 127
322–324 Part IV, Ch. 2, Trusts Arising by Operation of Law
322. This category includes situations where the transferor has agreed to trans-
fer property to a transferee, and equity deems done that which ought to be done,
so that the transferor will hold the property on trust for the transferee. However, the
contract has to be speciﬁcally enforceable or, at the minimum, consideration should
have been furnished by the transferee.1 This is an example of the operation of the
equitable doctrine of conversion.
1. In Re Mohamed Salleh Eusoof Angullia  MLJ 22, following Tailby v. Ofﬁcial Receiver
(1888) 13 App Cas 523; cf. Worthington (1996) 11 Journal of Contract Law 1, who argues that
speciﬁc enforceability is necessary for the doctrine of conversion to operate.
323. Constructive trusts also arise in the situation where property is transferred
on the understanding that they would be held on trust for the transferor, whereupon
the transferee later seeks to renege on the understanding. This occurs most fre-
quently in transactions involving land, which as we have seen requires writing
before trusts can over it can be created. It has been held that want of writing will
not prevent the trust from arising if the formalities, which were to prevent fraud,
are being used in furtherance of fraud.1 In some cases, unconscionability seems to
have been given even a wider role to play. Along with estoppel, it has been used
to create an equitable interest in future property for the beneﬁt of a promisee, if this
was what the promisor had represented, and where the promisee had relied upon
the promise to its detriment.2
1. Rochefoucald v. Boustead  1 Ch 196.
2. Goh Swee Fang v. Tiah Juah Kim  3 SLR 881.
II. Breach of Fiduciary Duty
324. Fiduciaries owe a duty of loyalty to their principals: they are not allowed
to use their ofﬁce of trust to attain a proﬁt for themselves. The law is highly
draconian, a probability of conﬂict sufﬁces, and it is irrelevant whether the princi-
pal could in fact have obtained the proﬁt for itself.1 Further, the rule applies also
to situations where a ﬁduciary is in a position of conﬂict due to multiple engage-
ments.2 Trustees for example may never purchase trust property, however, fair the
price and scrupulous the mode of sale. The purchased property will be held on trust
for the beneﬁciary. But the category of ﬁduciaries extends beyond trustees to in-
clude directors,3 agents,4 solicitors5 and persons that have undertaken to serve the
best interests of one clearly relying on the other’s service and good faith.6 Fiduci-
aries that make a proﬁt in breach of their duty are expected to account personally
for the proﬁts made. Often they may also hold the proﬁt on constructive trust for
the principal, on the principle that equity deems done that which ought to be done,
so that it would be unconscionable for the ﬁduciary to deny that it, for example,
received the bribe on trust for the principle.7
1. Hytech Builders Pte. Ltd. v. Tan Eng Leong  2 SLR 795.
2. Ohm Paciﬁc Sdn Bhd v. Ng Hwee Cheng  2 SLR 576.
3. Hytech Builders Pte. Ltd. v. Tan Eng Leong, supra.
4. The Gulf Bank K.S.C. v. Yong Tai Kong (Suit 1128/1991).
128 – Singapore Property and Trust Law (February 2000)
Trusts Arising by Operation of Law, Part IV, Ch. 2 325–326
5. Ohm Paciﬁc, supra.
6. Sin Leng Chua v. Interfood (Suit No. 4050 of 1982), following Hospital Products Ltd. v. U.S.
Surgical Corporation (1984) 58 AJLR 587.
7. The Pertamina case  3 SLR 257 (CA), following AG of Hong Kong v. Reid  3
WLR 1143 (PC).
325. While there is no general statutory defence for ﬁduciaries, company direc-
tors are protected by Section 391 of the Companies Act which provides that a
director may be excused from a breach of duty where that director had acted
honestly and in good faith.
III. Constructive Trusteeship
326. This is not a true constructive trust situation, in the sense that a beneﬁci-
ary can claim its interest in order to obtain priority over other creditors in the
trustee’s insolvency. Instead, there is here only a personal liability on the part of
the deemed trustee to account for a proﬁt received, or to compensate for a loss
suffered. Non-ﬁduciaries may, for example, obtain the proceeds of a breach of trust
or ﬁduciary duty. If the sometime-termed stranger still has the property, it has to
return the property, regardless of whether it knew of the breach of ﬁduciary duty.1
This is subject to the rules of tracing, which in equity is a powerful process.2 If,
however, the property has been dissipated, there is nothing that can form the sub-
ject matter of a trust. However, if it had been received in circumstances where the
recipient actually knew of or had been put on inquiry regarding the breach of
ﬁduciary duty, the recipient will be liable to account for the receipt.3 Alternatively,
strangers that do not receive trust property may assist in a breach of trust or
ﬁduciary duty. In these circumstances, the stranger will be liable to compensate for
any loss suffered by the trust or principal if it assisted dishonestly,4 although locally
it may be that knowledge is still a necessary ingredient before this form of second-
ary liability is imposed.5
1. Yogimbikai Nagarajah v. Indian Overseas Bank  1 SLR 258.
2. See para. 310.
3. Yogimbikai, ibid.
4. Royal Brunei Airlines Sdn Bhd v. Tan  3 MLJ 74 (PC from Brunei).
5. Four Seas Construction Co. Ltd. v. D & C Bank (Suit No. 1564 of 1995).
Property and Trust Law (February 2000) Singapore – 129
Part IV, Ch. 2, Trusts Arising by Operation of Law
130 – Singapore Property and Trust Law (February 2000)
Part V. Security
Chapter 1. Securities in Immovable Property
§1. Liens and Charges
327. Land may be used as security for loans in two ways, viz., the mortgage
and the charge. In a mortgage, the mortgagee’s security lies in his having the title
to the land. This gives him the right to foreclose should the mortgagor default.
Although in respect of land under the Land Titles Act the mortgagee does not have
the title, nevertheless he is given the right to foreclose by the statute.1 In a charge
the chargee’s security lies in the right to sell the land on default. The distinction
between the mortgage and the charge is today more one of form than of substance.
In regard to land under the Land Titles Act the registered mortgage should be used
only to secure debts while the registered charge is used to secure periodic pay-
ments.2 Aside from mortgages and charges there are the equitable liens, e.g., the
vendor’s lien and the purchaser’s lien in a transaction for the sale of land. These
liens are imposed by Equity.
1. Sections 68(3) & 76 Land Titles Act Cap. 157 1994 Rev Ed.
2. Sections 68(1) & (2) Land Titles Act.
I. Under General Law
328. In land that is not under the Land Titles Act a charge is an equitable interest
which comes into existence ‘when property is expressly or constructively made
liable, or specially appropriated to the discharge of a debt or some other obligation
and confers on the chargee a right of realization by the judicial process. . . .’1 There
are no particular formalities for the creation of a consensual charge. All that is
required is the intention that the property concerned is to be charged with the
payment of the debt incurred. This intention may be express or inferred. Where
the right of sale is not expressly provided for when the chargor defaults on the
stipulated date, the chargee’s remedy is to apply to court for the right to sell the
property. Under general law the chargee should register a memorandum of this
charge in the Registry of Deeds to ensure its effectiveness against a subsequent
purchaser for value.2 Further where the charge is in the form of a deed the remedies
as set out in Part IV Conveyancing and Law of Property Act, viz., the right to
Property and Trust Law (February 2000) Singapore – 131
329–331 Part V, Ch. 1, Securities in Immovable Property
insure the mortgaged property, the right to appoint a receiver when there are arrears
in interest and the right of sale are available to the chargee.3
1. Swiss Bank Corporation v. Lloyd’s Bank Ltd.  2 All ER 419 at p. 425 per Buckley LJ.
2. Section 6 Registration of Deeds Act Cap. 269 1989 Rev Ed.
3. Sections 2, 24–29 Conveyancing and Law of Property Act Cap. 61 1994 Rev Ed.
329. Apart from agreement the charge may also come into existence where so
imposed by statute or by Equity. An example of a charge imposed by statute is that
under Section 6(1) Property Tax Act1 where property tax remains unpaid. Examples
of charges imposed by Equity are the vendor’s lien, imposed on the property for
unpaid purchase money and the purchaser’s lien is imposed to secure the interest
of the purchaser.
1. Cap. 254 1985 Rev Ed.
II. Under the Land Titles Act1
330. In regard to land governed by the Land Titles Act a charge may be regis-
tered under Section 68(2) to secure periodic payments. The registered chargee
has the right to enter into possession,2 as well as the rights to appoint a receiver
and to sell the property.3 Aside from the registered charge informal mortgages and
charges may be effected which may not be registered. However, these equitable
mortgages and charges may be protected by the caveat.4 Remedies of such chargees
rest on the contract and where none are expressly provided for then there is the
right to apply to court for the right of sale.
1. Cap. 157 1994 Rev Ed.
2. Section 75 Land Titles Act Cap. 157 1994 Rev Ed.
3. Section 69 Land Titles Act, Part IV Conveyancing and Law of Property Act Cap. 61 1994 Rev
4. Sections 115 & 4 Land Titles Act Cap. 157 1994 Rev Ed.
I. Under General Law
331. A mortgage is created when title to land is conveyed subject to a proviso
of redemption when the money loaned is repaid at a stipulated date. Where the
legal title is conveyed a legal mortgage is created. Equitable mortgages may be
created informally, e.g., by deposit of title deeds, or by deed.1 However, where the
equitable mortgage is not by deed, for purposes of enforceability against subsequent
purchasers for value, registration of the memorandum of the equitable mortgage is
132 – Singapore Property and Trust Law (February 2000)
Securities in Immovable Property, Part V, Ch. 1 332–334
required.2 Whether the mortgage is legal or equitable the mortgagee always has the
right to foreclose.
1. Under Section 24 Conveyancing and Law of Property Act, regardless of whether the mortgage
is legal or equitable, if it is by deed the remedies set out in Part IV Conveyancing and Law of
Property Act apply.
2. Section 6 Registration of Deeds Act Cap. 269 1989 Rev Ed.
B. Equity of Redemption
332. Once a mortgage always a mortgage. So terms in the mortgage which
render the right to redeem illusory, e.g., by allowing redemption of leasehold prop-
erty only at the end of the lease,1 or hamper the right to redeem, e.g., by requiring
the mortgagor to buy only the mortgagee’s products even after the mortgage has
been redeemed,2 are struck down as being a clog or fetter on the equity of redemp-
tion. However, as mortgages are increasingly seen as arm’s length transactions
between parties the trend is to allow the terms of the contract to prevail unless they
are oppressive or unconscionable.3 This trend is seen in the House of Lords decision
of Krelinger v. New Patagonia Meat and Cold Storage Co. Ltd.4 More recently in
Citicorp Investment Bank (S) Ltd. v. Wee Ah Kee 5 the Court of Appeal reiterated
1. Fairclough v. Swan Brewery  AC 565.
2. Samuel v. Jarrah Timber and Wood Paving Corp. Ltd.  AC 323.
3. Knightsbridge Estates Ltd. v. Byrne  1 Ch 441; Fiscal Consultants Pte. Ltd. v. Asia
Commercial Finance Ltd.  2 MLJ 64.
4.  AC 25.
5.  2 SLR 759.
C. Mortgagee’s Remedies
333. From the point of the mortgagee his security lies in the remedies available
when the mortgagor defaults. The inherent right of the mortgagee is the right to
foreclose. But the courts scrutinize closely the exercise of this right giving the
mortgagor and all persons who are interested in the equity of redemption the right
to ask for a sale in lieu of foreclosure. Moreover, should the mortgagee sue on the
debt after foreclosure, he reopens the mortgage and the mortgagor may once again
redeem the mortgage.
334. Aside from the inherent right of foreclosure and what may be expressly
provided for in the mortgage all mortgagees where the mortgage is by deed have
the remedies set out in the Conveyancing and Property Act. Thus the mortgagee has
the right to insure the property mortgaged,1 to lease it if he is in possession,2 the
right to appoint a receiver 3 when interest is in arrears and the right to sell when the
loan is not repaid by the stipulated time.4 In addition the mortgagee or any person
interested in the mortgage may apply to court for it exercise of the power to order
a sale of the property.5 Though essentially this power is exercised where there is
Property and Trust Law (February 2000) Singapore – 133
335–337 Part V, Ch. 1, Securities in Immovable Property
a foreclosure action, yet the Court of Appeal in England has exercised it on the
application of the mortgagor to put an end to the mortgage in spite of the mortga-
1. Sections 24 & 28 Conveyancing and Law of Property Act.
2. Section 23 Conveyancing and Law of Property Act.
3. Sections 24 & 29 Conveyancing and Law of Property Act.
4. Sections 24 & 25 Conveyancing and Law of Property Act.
5. Section 30 Conveyancing and Law of Property Act.
6. Palk v. Mortgage Services Funding Ltd.  2 WLR 415.
335. The mortgagee decides in his own interest whether he wishes to exercise
his power of sale. But once he decides to sell he has a equitable duty to take
reasonable care to obtain the true market value at the date of the sale.1 The mort-
gagee is trustee of the proceeds of sale for all those who are interested in the equity
of redemption.2 The purchaser gets a title freed from the equity of redemption.3
1. Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd.  Ch D 949, Tse Kwong Lam v. Wong
Chit Sen  1 WLR 1351, Malayan Bank Bhd. v. Hwang Rose  2 SLR 1; Lee Nyet
Khiong v. Lee Nyet Yun  2 SLR 713.
2. Section 26 Conveyancing and Law of Property Act.
D. Discharge of Mortgages
336. Aside from being discharged by redemption, sale or by foreclosure, a
mortgage may be consolidated with other mortgages in the hands of the same
mortgagee and mortgagor where this right is expressly provided in the mortgage.
Physical destruction of the mortgaged property will not affect the security as the
insurance provisions will then apply. The mortgagee has a statutory right to insure
the property and to require that the money shall be applied to making good the loss
1. Sections 24 & 8 Conveyancing and Law of Property Act.
II. Under the Land Titles Act1
337. There are two main differences between mortgages and charges under
general law and those under the Land Titles Act. First, the registered mortgage and
the registered charge secure different obligations. The registered mortgage secures
loans while the registered charge secures periodic payments.2 Second, the regis-
tered mortgage does not confer on the mortgagee the title to the land.3 These aside,
in regard to the rights of the registered mortgagor and registered mortgagee as well
as in respect of registered charges, the general law applies.4
1. Cap. 157 1994 Rev Ed.
2. Section 68 Land Titles Act.
4. Section 69 Land Titles Act.
134 – Singapore Property and Trust Law (February 2000)
Securities in Immovable Property, Part V, Ch. 1 338–341
III. Priority of Mortgages and Charges
A. Under General Law
338. The issue of priorities of mortgagees and charges is governed by the
Registration of Deeds Act.1 Where the mortgage is by deed Section 14 of the Act
gives priority to that which is ﬁrst registered, except where there is actual fraud. In
regard to informal mortgages, charges and liens Section 6 Registration of Deeds
Act requires memoranda of such to be registered to be effective as against subse-
quent purchasers for value. The doctrine of tacking of mortgages as modiﬁed by
Section 16 Registration of Deeds Act is applicable. To apply the prior mortgagee
must either have provided for the making of future advances or the giving of credit
in the mortgage or where the subsequent mortgagee agrees to such advancement
1. Cap. 269 1989 Rev Ed.
B. Under the Land Titles Act
339. In regard to registered mortgages and charges priority is determined by
the date of registration.1 However, tacking for further advances is available as set
out in the Act. This requires either express provision for the further advances in the
mortgage or the consent of the subsequent mortgagee.2 The priority of unregistered
mortgages and charges is determined by the date of lodgement of caveats.3
1. Sections 46 & 48 Land Titles Act.
2. Section 80 Land Titles Act.
3. Section 49 Land Titles Act.
IV. Transfers of Mortgages and Sub-mortgages
340. The mortgagee’s interest may be transferred or in turn be mortgaged.
Where this occurs a submortgage is created. In regard to land under the Land Titles
Act these respective dealings with the mortgage can be registered.1
1. Section 71 Land Titles Act.
V. Reverse Mortgages
341. Recently the subject of reverse mortgage over private residential property
has been mooted to take care of the growing problem of a greying society, which
sees more home-owners having as their only asset the house in which they are
living. This transaction which involves the owner of property mortgaging it in
consideration for periodic payments for the life of the mortgagor. The interest is
paid with the total sum loaned after the death of the mortgagor. The reverse mort-
gage is available but it is not yet common place.
Property and Trust Law (February 2000) Singapore – 135
Chapter 2. Securities in Movable Property
I. Rationale for Security
342. The granting of credit puts the creditor in a position of vulnerability.
This is partly addressed by the taking of security, which is a proprietary right to
enforce the payment of an obligation. ‘A proprietary interest provided by way of
security entitles the holder to resort to the property only for the purpose of satis-
fying some liability due to him (whether from the person providing the security or
a third party) and, whatever the form of the transaction, the owner of the property
retains an equity of redemption to have the property restored to him when the
liability has been discharged’.1 The best way to think of a security interest is to see
it as carved out of the absolute interest in the property. It is in other words, a
subsidiary right, where the primary right is the personal obligation of the debtor to
repay the debt.
1. Morris v. Agrichemicals Ltd.  3 WLR 909.
343. Security is arguably economically efﬁcient, and hence countenanced by
the law because it lowers the cost of funds. At the same time, there is the fear that
it may lock the borrower into a relationship with the same lender. This is especially
the case with the ﬂoating charge, and there have been recommendations in England
that a proportion of a debtor’s assets which the ﬂoating chargeholder can look to
should be set aside for the unsecured creditors.1
1. Cork Committee on Insolvency Law and Practice (Cmnd 8558, 1982).
344. It is generally the case that insolvency proceedings do not affect preinsol-
vency entitlements, as it is perceived that it would give people the wrong incentive
to push a company into insolvency or a person into bankruptcy. Put differently,
insolvency laws recognize security interests created and will not remove its priority
status nor create any special priority. It has been said that ‘The agreement between
the parties must be construed in precisely the same way as if there had been no
bankruptcy at all. . . . assignees in bankruptcy only succeed to the rights of the
bankrupt, and have no higher or greater rights.’1
1. McEntire v. Crossley  AC 457 at p. 461.
II. Types of Security
345. Some commentators believe that there are only four types of security.1
These would be the mortgage, charge, pledge, and lien, with the ﬁrst two being
non-possessory and the latter two possessory forms of security. In this scheme of
136 – Singapore Property and Trust Law (February 2000)
Securities in Movable Property, Part V, Ch. 2 346–347
things, a trust interest is either not a security interest or is seen merely a form of
equitable mortgage. However, the other view is that the four types of security listed
above are not exhaustive.2 There are, in addition, quasi-security interests like title
retention, and set-off, which are strictly speaking, not security, although it serves
much the same function. In the former, the general property is in fact retained by
the seller, whereas the latter creates a personal contractual right.
1. Goode, Legal Problems of Credit and Security (1988).
2. Oditah, Legal Aspects of Receivables Financing (1991).
346. Certain forms of security are registrable and sometimes void if not so
registered, whereas others do not have to be registered. Consequently, it is some-
times vital to distinguish the different forms of security or to determine whether the
transaction does indeed create security. Although the substance of the transaction
will determine its nature, this is often reﬂected in the form of the documentation
itself.1 The Singapore Court of Appeal has held2 that a genuine sale and leaseback
transaction did not create a security interest even though it functioned in much the
same way. Thus, unlike the case with Article 9 of the Uniform Commercial Code
in the United States, economic function is not the test. The focus is on the legal
nature of the transaction, rather than on its economic effect.
1. Welsh Development Agency v. Export Finance Co.  BCLC 148, applied in Nissho Iwai
International (Singapore) Pte. Ltd. v. Kohinoor Impex Pte. Ltd.  3 SLR 268.
2. Thai Chee Ken v. Banque Paribas  2 SLR 609.
347. Except for a number of statutory charges, the charge is a creature of
equity. The charge is usefully contrasted with the mortgage. In a legal mortgage
there is a conveyance of the property with the mortgagor retaining an equity of
redemption. The equity of redemption cannot be clogged, but there may be an
exception in arm’s length commercial transactions.1 The charge on the other hand
is simply an encumbrance, the primary remedy for which is to apply to court for
order for sale or appointment of a receiver. It only gives the chargee certain rights
over the property as security for the loan. The property, otherwise known as the
collateral, remains in the debtor’s ownership, with the charge carved out of it. The
mortgage can thus be seen as a charge with the right to foreclose. It is a charge plus
extras. But a charge is a creature of contract, and can often look like an equitable
mortgage, i.e., with power to appoint a receiver to sell the property. Further, the
deﬁnition of a charge in the Companies Act includes a mortgage or agreement to
give a charge or mortgage whether on demand or otherwise. Consequently, very
little distinction is made between the charge and mortgage in the case of chattels,
particularly since legal mortgages are seldom created in this context. Agreements
to give a charge or mortgage are also treated as present security through the maxim
that ‘equity deems done that which ought to be done’. The doctrine of conversion
Property and Trust Law (February 2000) Singapore – 137
348–351 Part V, Ch. 2, Securities in Movable Property
or speciﬁc enforceability converts the agreement to give a charge into a present
1. Citicorp Investment Bank (Singapore) Ltd. v. Wee Ah Kee (unreported, 22 May 1997); Lee EB
 SJLS 597.
348. Very little is also made of the distinction between the charge and the
equitable lien, which is best seen as an equitable charge arising by operation of the
law.1 These include, e.g., the unpaid vendor’s lien after property is conveyed to
purchaser. In Singapore it has been held that this equitable lien can be varied or
excluded by the terms of a contract.2
1. Hewett v. Court (1983) 149 CLR 639 at p. 645.
2. Bestland Development Pte. Ltd. v. Manit Udomkunnatum  2 SLR 42.
349. Instead the distinction is drawn between possessory and non-possesory
security. The former includes the pledge, which is a security interest created by
transfer not of property but of possession, with the pledgee having the right to sell
the bailed property on the debtor’s default. Similarly, the common law lien requires
possession but there is no accompanying right to sell. It is really a mere right of
350. The equitable charge, like other forms of equitable interests, is governed
by the principle that the ﬁrst in time of creation should prevail over subsequent
equitable interests. The caveat is that the equitable charge is liable to be over-
reached by equity’s darling, i.e., the purchaser of the legal estate or interest for
value without notice. The registration regimes discussed below, however, modify
this system of priority.
II. Charge over One’s Own Indebtedness
351. One difﬁculty which has recently been overcome is the problem of a bank
taking a charge over its depositor’s bank account, which bank account in turn
constitutes the bank’s own indebtedness to that customer. It was once believed that
this was conceptually impossible.1 Legislation was passed to clarify that such charges
could always be created in Singapore.2 Even the common law seems to have accepted
the possibility of such a charge, on the basis that there is no merger of interests
once the chose in action is seen as a property interest, title to which is retained
by the bank depositor.3 However, it is not settled if a bank account is considered
a book debt, a charge over which requires registration under Section 131 of the
Companies Act. The more accepted view seems to be that money belonging to a
company in a bank is not a book debt.4
1. Re Charge Card Services Ltd.  1 Ch 150.
2. Section 9A Civil Law Act Cap. 43 1994 Rev Ed.
3. Morris v. Agrichemicals, supra.
4. Re Brightlife Ltd.  Ch 200, Section 108(3)(k) Malaysian Companies Act 1965 (inserted
by Act 836 of 1992).
138 – Singapore Property and Trust Law (February 2000)
Securities in Movable Property, Part V, Ch. 2 352–355
III. Registration and the Perfection of Security
352. To protect other creditors who may lend without knowing of the exist-
ence of prior security, there is a need for transparency. This is achieved through
the requirement of registration. This is called perfection of security, and can also
be done through possession or notice to the debtor in the case of security over a
debt. Attachment occurs at an earlier state, where there is appropriation or an
agreement supported by consideration. It is really an inter partes act. It is attach-
ment that confers priority, subject to certain rules of property, not the process of
353. The legal nature of the debtor determines the governing regime for reg-
istration. In the case of a company, Section 131 Companies Act is the governing
provision. In the case of individuals, bills of sale may be created and these have
to be registered under the Bills of Sale Act1 which only covers chattel assets. There
is thus no need to register bills of sale concerning choses in action such as debts
and shares. In contrast, the Companies Act requires registration of ﬁxed charges
over book debts, though not over shares.
1. Cap. 24 1985 Rev Ed.
354. The scope of the Bills of Sale Act is, however, unclear. Originally the bill
of sale was ‘a bill to denote a sale’. The mortgage was caught as that was an
absolute assignment coupled with an equity of redemption. But the regime was
extended to include documents that gave a power to seize chattels to persons who
were not in possession of the chattels. However, unlike some jurisdictions, which
have widened the deﬁnition to include the equitable charge, the Singapore Bills of
Sale Act does not expressly refer to such security. An argument may thus be made
that charges do not have to be registered as there is strictly no power to seize the
charged property. However, it is generally accepted here that the charge is registrable
as a bill of sale, although a hire purchase agreement is not.1
1. McEntire v. Crossley, supra.
355. A bill of sale by way of security shall be void if it is not registered, even
against the borrower.1 The covenant to repay with interest may also be void, and
if so, there is a need to turn to the law of restitution for recovery.2 Section 11 of
the Bills of Sale Act states that if two registrable bills of sale are given comprising
the whole or in part any of the same chattels, they shall have priority in the order
of the date of their registration.
1. Section 4(1)(a) Bills of Sale Act.
2. Bradford v. Ayers (1924) WN 152 (cf. Davies v. Rees (1886) 17 QBD 408). This has been
followed in the Federal Court of Malaysia: Ponnuthurai v. Nasib Singh  MLJ 425.
Property and Trust Law (February 2000) Singapore – 139
356–359 Part V, Ch. 2, Securities in Movable Property
356. Section 131 of the Companies Act also makes reference to the Bills of
Sale Act. Sub-Section (3)(d) states that a ‘charge or an assignment created or
evidence by an instrument which if executed by an individual, would require reg-
istration as a Bill of Sale,’ has to be registered if given by a company. Aside from
this, other ﬁxed charges over various collateral have to be registered, and the
ﬂoating charge also has to be registered, regardless of the underlying collateral.1 A
registrable company charge has to be registered 30 days from the date of creation.2
1. Section 131(3)(g).
2. Section 131(1).
357. In the case of the company, non-registration renders the charge void against
the liquidator and other secured creditors. Unsecured creditors have no locus standi
to challenge it. However, a petition for winding up by such creditors will render the
unregistered charge void, even before a liquidator is appointed, on the basis that
upon presentation of the petition, the unsecured creditors acquire certain rights in
the company and are no longer strictly unsecured.1 However, it is likely that the
failure to register does not render it void against purchasers since they are not
normally expected to search the register. The charge also remains valid against the
borrowing company itself. Further, unlike the case under the Bills of Sale legisla-
tion, the debt becomes immediately payable without demand under Section 131(2).
1. Ng Wei Teck v. OCBC  1 SLR 55.
358. Conversely, registration of a company charge or mortgage does not give
the chargeholder automatic priority. Priority is still determined by general property
law. However, registration gives constructive notice to those who are required
to search the register. Registration is thus conclusive proof of the existence and
validity of the charge. Just as non-registration may not affect the charge against
those parties not expected to search the register, e.g., purchasers, registration may
not affect these very parties, which will therefore not have constructive notice of
any prior charges by the mere fact of registration. Further, even as against those
expected to search the register, registration only gives constructive notice of the
charge but not the terms of the charge.1 The position in Singapore is complicated
by the fact that the burden of proof is on the third party to show that it had no actual
notice of the existence of the charge.2
1. Wilson v. Kelland  2 Ch 306.
2. Kay Hian v. Phua  1 MLJ 284, following the Canadian Supreme Court in Union Bank
of Halifax v. The Indian and General Investment Trust (1908) 40 SCR 510.
IV. Floating Charge
A. Conceptual Basis
359. This is a remarkable invention of equity which, while giving the creditor
security protection, allows the debtor to carry on trading with the collateral. This
140 – Singapore Property and Trust Law (February 2000)
Securities in Movable Property, Part V, Ch. 2 360–361
has faciliated corporate growth, especially since the assets of a company are largely
stock in trade, which is a ﬂuctuating body of assets. It was the recognition that
future property could be assigned presently without a fresh act of assignment when
the property came into existence that assisted the development of the ﬂoating
charge.1 However, there is still debate over whether the ﬂoating charge is in fact
present security, since that requires the collateral to actually presently exist. The
increasingly accepted view, however, appears to be that the ﬂoating charge is
present security over a fund, the contents of which are constantly shifting and may
include future property within it.2 This follows from the previous argument that a
fund is considered to have a separate existence from its component parts.3 It is
likely, however, that an individual cannot give a ﬂoating charge over future chattels
since Section 5(2) of the Bills of Sale Act requires the grantor to be the ‘true owner
at the time of execution of the bill of sale.’ However, an individual may be able
to create a ﬂoating charge over intangible property such as debts and shares, which
are not covered by the Bills of Sale legislation.
1. Holroyd v. Marshall (1862) 10 HLC 191.
2. Goode, supra.
3. Part II Chapter 1 §3.
360. Three probanda were set out by Romer LJ in Re Yorkshire Woolcombers
Association Ltd.1: (a) if it is a charge on a class of assets both present and future;
(b) if that class is one which in the ordinary course of the business of the company
would be changing from time to time; (c) until some future step is taken by or on
behalf of the mortgagee, the company may carry on business in the ordinary way.
These criteria are not exhaustive. The ﬂoating charge, for example, does not have
to be over the company’s entire undertaking but can exist over a portion of it.2
1.  2 Ch 284.
2. Dresdner Bank Aktiengesellschaft & Ors v. Ho Mun-Tuke Don  1 SLR 114.
C. Fixed or Floating?
361. Due to the registration regime under Section 131 of the Companies Act,
it is often vital to distinguish the ﬁxed from a ﬂoating charge. The other reason is
because Sections 262(1) and 328(5) of the Companies Act provide that ﬁxed charges
have priority over certain kinds of preferential debts while ﬂoating charges do not.
The nature of the charge seems to be determined by the amount of control over the
collateral, although this is sometimes affected by the nature of the collateral itself.
It is thus possible to have a ﬁxed charge over a shifting fund of book debts.1 But
even if parties have successfully deﬁned their relationship, it can be altered by
subsequent conduct. This is seen in local decisions where attempts to create ﬁxed
security have failed because there was insufﬁcient de facto control over the collat-
eral.2 Conversely, even after crystallization converts the ﬂoating charge into a ﬁxed
Property and Trust Law (February 2000) Singapore – 141
362–365 Part V, Ch. 2, Securities in Movable Property
charge, it is still considered to have begun its life as a ﬂoating charge, so that upon
crystallization, no new charge is created.3
1. Siebe Gorman & Co. Ltd. v. Barclays Bank Ltd.  2 Lloyd’s Rep 142.
2. Chase Manhatten Bank NV v. Wong  1 SLR 1.
3. Dresdner Bank, supra.
362. It is sometimes possible to create different charges over the same collat-
eral in its various alternate forms. For example, there could be a ﬁxed charge over
book debts, followed by a ﬂoating charge over its proceeds when realized.1 This
though may not be readily accepted in all cases, and much will turn on the facts
of the case.2
1. Re New Bullas  BCC 36.
2. Royal Trust Bank v. National Westminster Bank plc  2 BCLC 682.
D. Priority of the Floating Charge
363. The ﬂoating charge is intrinsically vulnerable as it allows the debtor to
continue trading with the underlying collateral in the ordinary course of business.
It is only upon crystallization that it is treated like a ﬁxed charge. Prior to that, for
example, it takes subject to equities like the set-off, and is subordinate to other ﬁxed
charges.1 In addition, Section 330 of the Companies Act provides that a ﬂoating
charge created within six months of commencement of winding up shall be invalid
except to the amount of any cash paid to the company at the time of or subsequently
to the creation of and in consideration for the charge.
1. Business Computers Ltd. v. Anglo African Leasing Ltd.  2 All ER 741.
364. Since trading power is an implied term of the agreement to create a
ﬂoating charge, cessation of business as a going concern correspondingly leads to
crystallization of that charge. Thus, winding up of the company and disposal of its
undertaking also result in crystallization. Crystallization can also be by way of
notice or may occur automatically, if that is stipulated in the charge agreement. The
latter probably works in Singapore, as it does in much of the Commonwealth. It
reﬂects the idea that the charge is a creature of contract. Although automatic crystal-
lization, in particular, appears somewhat unfair due to its lack of transparency, it
may be that retention of control by the company will result in the ﬂoating chargee
being estopped from denying that the company retained authority to deal with the
property. Although actual authority may have ended, apparent authority continues.1
1. Goode, supra, cf. Oditah, supra.
365. Between two ﬂoating charges, the charge earlier in execution and regis-
tration takes priority even though second crystallizes ﬁrst. The reason for this is that
it is contrary to the parties’ intentions that there should be a second ﬂoating charge.1
The exception to this is where the ﬁrst ﬂoating charge envisages subsequent ﬂoating
142 – Singapore Property and Trust Law (February 2000)
Securities in Movable Property, Part V, Ch. 2 366–367
charges, but perhaps only where the second ﬂoating charge is over a smaller class
of assets belonging to the company.2
1. Re Benjamin Cope & Sons Ltd.  Ch 800, Re Household Products Co. Ltd. 124 DLR (3d)
2. Re Automatic Bottle Makers Ltd.  1 Ch 412.
V. Negative Pledge
366. As we have seen, the ﬂoating charge loses priority to a subsequent ﬁxed
charge, if given in the ordinary course of business. Some lenders may desire
additional protection through the use of a negative pledge, where the debtor under-
takes not to grant subsequent security in priority to or pari passu with the ﬂoating
charge without the debtor’s consent. Although the negative pledge, by itself, is
probably an equity having no proprietary effect, it may result in a third party taking
security in breach of the pledge, and knowing of it, being subordinated to the
interest of the ﬂoating chargeholder.1 However, it has also been held that construc-
tive notice of a charge does not extend to the contents of that charge, so that the
third party would not automatically have notice of the negative pledge, which is an
optional extra.2 However, the position in Singapore is complicated by the fact that
it has been held that the burden is on the third party to show that it has no actual
notice of the negative pledge.3
1. The genesis for this rule appears to be English & Scottish Mercantile Investment Co. v. Brunton
 2 QB 700, applied in Kay Hian, supra.
2. Wilson v. Kelland, supra (but see Form 34 of the Companies Regulations 1987 (138/87) ).
3. Kay Hian, supra; Tjio (1995) 16 Company Lawyer 28.
367. We have seen that only two forms of legal interests can exist over per-
sonal property: ownership and possession. In the case of a pledge, the general
property or ownership remains with the pledgor, while the special property or
possession passes to pledgee. On one view, the pledge does not create a property
interest.1 However, the pledgee can dispose of his special property,2 which the
pledgor can recover by paying off the debt. Even if the pledgee’s disposition is
wrongful, the pledgor cannot sue in conversion until the debt is repaid. This is
because the pledgee has the entire present interest till then. Payment causes the
immediate right to possession to revert to the pledgor.3 This shows that a pledge
does not create a mere right of action, previously unassignable at law, but a trans-
ferable property right. At the same time, the pledgor can also sell off its interest,
so that pledgee is liable in conversion for refusing to permit the pledgor’s transferee
to redeem the pledge.4
1. The Odessa (1916) AC 145, Chan Cheng Kum v. Wah Tat Bank Ltd.  1 MLJ 177 (PC,
Property and Trust Law (February 2000) Singapore – 143
368–370 Part V, Ch. 2, Securities in Movable Property
2. Donald v. Suckling (1866) LR 1 QB 585.
3. Halliday v. Holgate (1868) LR 3 Ex 299.
4. Franklin v. Neate (1844) 13 M & W 481; The Federated Malay States v. Harnam Kaur 
368. The pledge is different from a legal mortgage in that the mortgagee has
title to the goods, subject to right of redemption, but not possession. In a pledge,
the security is the possession itself. It is thus not registrable as a bill of sale since
the mischief of the Bills of Sale Act1 is to cure the problem of ostensible owner-
ship, which is a particular problem when security or property interests are divorced
from possession. This would be the case even if a document were used to evidence
the transaction, since the transaction begins with pledgor voluntarily giving possesion
of the goods to pledgee. In these instances, the document does not give right to take
possession, it only regulates the terms on which they are to be held.2
1. Cap. 24. 1985 Rev Ed.
2. Ex Parte Hubbard (1886) 17 QBD 699, United Malayan Banking Corp Bhd v. Lim Kang Seng
 2 SLR 787.
369. The pledge is also different from the common law lien, arising voluntarily,
whereas the lien generally arises by operation of law. These include the common
carrier’s lien, the innkeeper’s lien, etc. Liens are also possessory rights but they are
more limited in scope. The lienee cannot deal or sell his interest and is a passive
right of retention.1 If the debtor defaults, the lienee does not have the power to
immediately sell the property. Nor can execution be levied against the goods.
Powers of sale can, however, be conferred by statute on a lienee.2 By contrast, the
English law of pledge confers on the pledgee the right of sale without recourse to
the courts.3 This is peculiar to English law, and is best seen as an implied authority
granted by the pledgor to do so; there is a need to petition the court for sale some
other common law jurisdictions. Such an implied power of sale exists in Singapore.4
1. Re Cosslett (Contractors)  4 All ER 115; AP Bell, Modern Law of Personal Property
(1989) at pp. 136–137.
2. E.g., Section 51 Sale of Goods Act Cap. 393 1994 Rev Ed.
3. The Odessa, supra.
4. Malayan Banking Bhd v. Hwang  2 SLR 1.
II. Creation of a Valid Pledge
370. The transfer of possession is necessary for the creation of a pledge. It is
not enough that there is authority to take possession of goods, as that will create
a charge.1 Similarly, in cases where possession is meaningless, the security arrange-
ment may operate as an equitable mortgage or charge. This is the situation with
certain documentary intangibles like shares, which do not have the status of a
negotiable instrument, and thus cannot strictly speaking be possessed.2 However,
possession is a highly ﬂuid concept, and may be actual, constructive or symbolic.
It must, however, be exclusive and lawful.3 Delivery is thus essential.4 The pledgee
must therefore reduce the property into his possession. This can sometimes occur
144 – Singapore Property and Trust Law (February 2000)
Securities in Movable Property, Part V, Ch. 2 371–372
even though physical possession remains with the pledgor, for example, when keys
to the safe where shares are deposited are handed over to the pledgee, so long as
the pledgee has an irrevocable licence to enter the premises and use the keys.5 The
issue is one of control, or exclusive possession. It is thus difﬁcult to create a pledge
in connection with circulating assets or stock in trade.
1. In re Bonds (1921) 2 FMSLR; Ofﬁcial Assignee of Madras v. Mercantile Bank of India 
AC 53 (PC, from India).
2. Chase Manhatten v. Wong  1 SLR 1.
3. Re Bonds, supra.
4. Dublin City Distillery v. Doherty  AC 823.
5. Wrightson v. McArthur  2 KB 807, Chase Manhatten v. Wong, supra.
III. Usual Settings for Pledges
371. Outside the pawnbroking business, where actual possession of the pledged
goods is retained by the broker, pledges are most often created in the ﬁnancing of
international trade. A bank will take a pledge from the consignee over the consign-
ee’s bill of lading. The bill is a document of title to goods contained on the ship,
and represents the underlying goods.1 When the goods arrive, the consignee goes
to wharf to collect them. The carrier, however, will only release the goods against
the bill of lading and payment. The consignee obtains ﬁnance by pledging the bill
of lading to the bank. The bank next collects the goods for the consignee, and then
releases the goods to the consignee under a trust receipt, which records the fact that
bank is a pledgee of the goods. It thus retains constructive, though not actual,
possession of the goods through its agent bailee, the consignee. In some common
law jurisdictions such pledges must be registered, but not in England nor, as is
1. In Singapore and Malaysia, mate’s receipts, by custom, are treated like bills of lading: Chan
Cheng Kum v. Wah Tat Bank Ltd.  1 MLJ 177 (PC, from Malaysia).
2. North Western Bank v. Poynter (1895) AC 56.
372. Aside from pledges of bill of ladings, dealings with other kinds of docu-
ments of title require an attornment for possession to pass. For example, a ware-
houseman who holds property on behalf of pledgor may be ordered by the pledgor
to hold on behalf of the pledgee. This change of possession is perfected by the
warehouseman attorning or acknowledging to the pledgee that the goods are held
for him. Transfers of delivery orders and warrants thus require an attornment.1
Without it, the transfer of the receipt creates a bill of sale. This has to be registered
under the Bills of Sale Act unless the bill was created in the ordinary course of
1. Dublin Distillery v. Doherty.
Property and Trust Law (February 2000) Singapore – 145
The numbers given refer to paragraphs:
Acquisition of interests in land Co-ownership
infants: 205 joint tenancy: 176–178, 184
married woman: 209 tenancy in common: 179–184
mentally disordered person: 206 see also: Strata title
partnership: 208 Death
societies: 207 devolution of property on: 283–286
foreign persons: see Residential Property donatio mortis causa: 287–288
Act effect on Muslim owners: 281–282
Application of English Law Act: 15, 19, estate duty: 291
27 personal representatives: 289–290
generally: 385–387 see Planning
in equity: 389–390 Easements
priorities: 394 acquisition under general law: 144–145
restrictions on: 391 acquisition under Land Titles Act:
statutory: 388 148–152
subject to equities: 392 characteristics: 140–143
Background, general: 1–5 distinguished from other rights:
Bailment: 255–256 135–139
Charge extinguishment under general law:
ﬂoating: 358–364 146–147
generally: 168, 170–174, 326–329, extinguishment under Land Titles Act:
negative pledge: 365 Equitable interest: 45, 47–49, 68–73,
over own indebtedness: 350 75–76, 258–260
priorities: 349, 362–364 remedies: 50, 320–325
registration: 351–357 Equities: 74–75, 259–260
Chattel real Equity reception: 28, 45–46, 68
see: leasehold estate Estates in land
Choses in action: see Assignments in perpetuity: 64
Classiﬁcation fee simple: 65
movable and immovable: 38, 40–43 State lease: 64
real and personal: 37–39, 41–44 Estates
tangible and intangible: 243–247 see: ownership of land
Common law: 17–20, 30 Executive process: 23–24
Constitutional framework: 10–11 Expropriation: 300–305
system: 6–9 Fiduciaries: 52, 323–324
Property and Trust Law (February 2000) Singapore – 155
Fixtures: of land: 31–34
see: Land and possession: 252
Freehold estate: 59 Planning
Future interests: 34–35, 358 control of rent: 223
rule against perpetuities: 36 decontrol of rent: 223–225
Gifts: 295–296 develop: 219
History, property law: 25–30 development charge: 221
Insolvency: 306–308 land acquisition: see Land acquisition
Joint ownership Master Plan: 217
see: co-ownership Planning Act: 216–217
Judicial process: 21, 22 Possession:
Land Titles Act: acquisition of: 292, 294
assurance fund: 88 adverse: 54–55
bringing under: 84–85 constructive: 293
caveats: 86, 91–94 right to: 53, 56
effect of registration: 87–88 Proﬁts a prendre: 137, 154
indefeasible title: 88–90 Property
overriding interests: 89 intangible: 244–247
qualiﬁed title: 86 mixed funds: 248–250
priority: 87 movable: 243–250
unregistered interests: see caveats quasi: 260
Land, meaning of: 61–62, 297 special: 254
Lease: Public Housing
assignment: 107–108 eligibility: 236
determination of: 110 general: see Housing and Development
kinds of: 96–100 Board
landlord’s rights and duties: 117–118 Housing and Development Board: 227,
remedies of landlord: 12 230–235
sublease: 109 home ownership policy: 232–233
tenant’s rights and duties: 119 management of common property: 239
usual covenants: 120 middle income housing: 240–242
validity: 101 rights and obligations of owners:
Leasehold estate: 59–60; 251 236–238
Legal interest: 67; 252–257 Real property: 58–60
Legislative process: 12–13 Registration of deeds: 77–83
Licence evidence of title: 79
contractual: 132 priorities: 80–82
coupled with an equity: 134–135 Registration of titles
coupled with grant: 131 see Land Titles Act
distinguish from lease: 128–129 Residential Property Act
gratuitous: 130 acquisition by foreign person: 213–214
nature of: 127 exemption: 215
Mixing, of property: 298–299 foreign person, meaning of: 211
Mortgage residential property: 212
generally: 168–169, 171–174, 330–331 Restrictive covenant
priorities: 337–338 annexation of beneﬁt: 158–170
remedies: 332–334 breach: 167
reverse: 340 discharge: 162
Notice, doctrine of: 45 general: 155–156
Ownership running of burden: 157
importance of: 263 Land Titles Act: 163–166
156 – Singapore Property and Trust Law (February 2000)
Security interests common property: 188–189, 195–196
charges: see Charge condominium: 185
generally: 261–262, 341–345 general: 185–186
in land: 168–174 maintenance: 192
mortgages: see Mortgage management corporation: 190–191,
pledge: 366–373 195–197
retention of title clauses: 379 meetings: 193–194
quasi-security: 378–384 subsidiary proprietor: 199–201
trust receipts and hypothecation: termination of strata title plan: 202–203
Sale of property constitution of: 318
choses in action: see Assignments constructive: 319–325
land: 264–275 discretionary: 317
speciﬁc goods: 277–278 express: 313–316
unascertained goods: 279–280 general: 309–310
State land: 63–66 Quistclose: 384
Strata title resulting: 311–312
by-laws: 198 Written law: 15–16
Property and Trust Law (February 2000) Singapore – 157
158 – Singapore Property and Trust Law (February 2000)