How to Change From Joint Tenancy to Tenancy-in-Common in Singapore
Many properties in Singapore are owned by two or more people, particularly married couples who purchase an HDB flat or private property together.
One important question is how the property is legally held.
The two common forms of co-ownership are:
Joint tenancy; and
Tenancy-in-common.
Although both arrangements allow two or more people to own the same property, there is an important difference between them — particularly when one owner passes away.
If you currently own a property as joint tenants, it is possible to change the manner of holding to a tenancy-in-common. This process is commonly referred to as severing a joint tenancy.
This article explains how a joint tenancy may be severed in Singapore, what happens after severance, and some of the reasons property owners may wish to consider doing so.
What Is a Joint Tenancy?
Under a joint tenancy, the co-owners hold the property together without having separate, distinct shares registered in their individual names.
For example, if a husband and wife own their property as joint tenants, they do not ordinarily appear on the title as owning "50% each". Instead, they hold the property jointly.
One of the most important features of a joint tenancy is the right of survivorship.
If one joint tenant passes away, his or her interest in the property generally passes automatically to the surviving joint tenant or joint tenants.
This happens regardless of what the deceased joint tenant may have stated in his or her Will.
For example:
John and Mary own their property as joint tenants.
If John passes away, Mary's ownership of the property continues by operation of the right of survivorship. John generally cannot leave a purported 50% share of the property to someone else through his Will while the property remains held under the joint tenancy.
What Is a Tenancy-in-Common?
A tenancy-in-common works differently.
Under a tenancy-in-common, each co-owner has a separate and identifiable share in the property.
For example:
John – 50%
Mary – 50%
Depending on how the ownership is structured, tenants-in-common may also hold the property in unequal shares.
For example:
John – 70%
Mary – 30%
The crucial difference is that the right of survivorship does not apply to a tenancy-in-common.
If John owns a 50% share as a tenant-in-common and passes away, his 50% share does not automatically pass to Mary merely because she is the other co-owner.
Instead, John's share forms part of his estate and may generally be distributed according to his Will or, if he does not have a valid Will, the applicable intestacy laws.
This distinction is also recognised by the CPF Board in its explanation of joint tenancy and tenancy-in-common.
Why Change From Joint Tenancy to Tenancy-in-Common?
There are several reasons why a property owner may wish to sever a joint tenancy.
1. Estate Planning
A property may be one of a person's most valuable assets.
If the property is held under a joint tenancy, the right of survivorship generally determines what happens to the property when one joint tenant dies.
A person who wishes for his or her interest in the property to pass to beneficiaries under a Will may therefore consider whether the joint tenancy should first be severed.
For example, a person in a second marriage may wish for his or her share of the property eventually to pass to children from an earlier marriage rather than automatically passing to the spouse.
Changing the ownership to a tenancy-in-common may allow that person's share to form part of his or her estate.
2. Separation or Divorce
Severance may also become relevant when a married couple separates or begins contemplating divorce.
Spouses frequently purchase their matrimonial home as joint tenants. After the marriage breaks down, one spouse may no longer wish for the other spouse to automatically receive his or her interest in the property in the event of death before the matrimonial property issues are resolved.
However, severing the joint tenancy does not determine how the property will ultimately be divided in divorce proceedings.
The Family Court may still determine the division of the matrimonial assets in accordance with the applicable principles of family law.
Changing the manner of holding on the property's title and determining the parties' beneficial entitlement upon divorce are therefore separate issues.
3. Clarifying Ownership and Succession Arrangements
Some owners may simply prefer to have their respective interests in the property separately identified rather than holding the property jointly.
This can be particularly relevant as part of wider estate, succession or family wealth planning.
How Do You Change a Joint Tenancy to Tenancy-in-Common?
Changing a joint tenancy into a tenancy-in-common is generally known as severance of the joint tenancy.
Section 53 of the Land Titles Act 1993 provides for the manner in which a joint tenancy in registered land may be severed.
Importantly, section 53(5) provides that a joint tenant may sever the joint tenancy by an instrument of declaration in the approved form, with a copy of that instrument being served personally or by registered post on the other joint tenant or joint tenants.
The instrument must then be registered.
The Singapore Land Authority presently provides different prescribed forms depending on whether the severance is being undertaken by all joint tenants, one joint tenant, or some of the joint tenants.
Method 1: All Joint Tenants Agree to the Severance
The process is generally more straightforward where all the owners agree that the joint tenancy should be severed.
For example, a husband and wife may jointly decide that their property should instead be held as tenants-in-common.
The appropriate instrument can be prepared and executed and subsequently lodged for registration.
Once the severance is properly registered, the manner of holding reflected on the property title will change accordingly.
Method 2: One Joint Tenant Wants to Sever the Joint Tenancy
A common misconception is:
"My spouse does not agree, so I cannot change the joint tenancy."
That is not necessarily correct.
Under section 53(5) of the Land Titles Act, any joint tenant may sever the joint tenancy through the prescribed instrument of declaration and service procedure.
This means that, in an appropriate case, severance does not necessarily require the agreement of every joint tenant.
Where one joint tenant is proceeding with the severance, a copy of the instrument of declaration must be served on the other joint tenant or joint tenants personally or by registered post.
The Singapore Land Authority provides Form 17 – Instrument of Declaration by a Joint Tenant to Sever a Joint Tenancy for this purpose.
It is important that the required procedural steps are properly followed, particularly where the other owner does not consent to the severance.
What Shares Will You Own After Severance?
This is an important point.
Where a joint tenancy is severed under section 53 of the Land Titles Act, the statutory mechanism does not allow one joint tenant simply to declare whatever percentage he or she wishes.
Section 53(6) provides that following registration of the duly served instrument, the declarant is treated as holding a proportionate equal share based on the number of joint tenants.
Accordingly, where there are two joint tenants, severance would ordinarily result in each holding an equal share as tenants-in-common.
In simple terms:
Before severance:
John and Mary – Joint Tenants
After severance:
John – 50% as Tenant-in-Common
Mary – 50% as Tenant-in-Common
Where there are more than two joint tenants, the position should be considered carefully based on the particular ownership structure and who is effecting the severance.
Can I Change It to 99%-1% Instead?
This is different from a straightforward severance of a joint tenancy.
A unilateral statutory severance does not ordinarily allow one joint tenant simply to decide that the property will thereafter be held 99%-1%, 90%-10%, or in some other unequal proportion.
Creating unequal registered ownership shares may involve a transfer of an interest in the property, rather than merely severing the existing joint tenancy.
That may have additional legal, financing, CPF, HDB and tax implications depending on the property and transaction involved.
Legal advice should therefore be obtained before attempting to restructure the ownership percentages.
Does Severing the Joint Tenancy Mean I Can Sell My 50% Immediately?
Not necessarily.
Severing the joint tenancy changes the manner in which the property is held. It does not automatically resolve every issue relating to the property.
For example, there may still be:
an outstanding mortgage;
CPF monies used towards the property;
HDB eligibility or regulatory requirements;
restrictions affecting the property;
disputes between the co-owners; or
ongoing divorce proceedings.
A tenancy-in-common also does not mean that the physical property itself has been divided into separate halves.
Both owners remain co-owners of the same property.
What Happens to the Property If One Owner Dies After Severance?
This is one of the most significant consequences of severing a joint tenancy.
Suppose John and Mary originally owned their home as joint tenants.
If John died while the joint tenancy remained intact, the right of survivorship would ordinarily operate in favour of Mary.
However, suppose the joint tenancy was validly severed and they thereafter held the property:
John – 50%
Mary – 50%
If John subsequently dies, his 50% share does not automatically pass to Mary through the right of survivorship.
Instead, his share may pass according to his Will or, if there is no valid Will, according to the applicable intestacy rules.
For this reason, anyone severing a joint tenancy for estate-planning purposes should also consider whether his or her Will should be made or updated.
Does Severing a Joint Tenancy Affect CPF Monies?
Changing the manner of holding does not simply erase CPF monies previously used for the property.
CPF requirements may continue to apply to CPF funds used for the purchase, mortgage instalments or other permitted housing payments.
If there is a subsequent transfer or disposal of an ownership interest, CPF refund requirements may also become relevant.
The exact consequences will depend on what is being done with the property.
A distinction should therefore be drawn between:
merely changing the manner of holding from joint tenancy to tenancy-in-common; and
transferring part or all of one owner's ownership interest to another person.
These are not necessarily the same transaction.
Can You Sever a Joint Tenancy for an HDB Flat?
HDB flats involve an additional regulatory framework.
The Singapore Land Authority's electronic conveyancing materials expressly contemplate statutory declarations changing the manner of holding for residential flats and include the relevant certification under the Housing and Development Act.
However, HDB ownership is subject to HDB's eligibility requirements and restrictions.
Accordingly, owners of an HDB flat should obtain advice on the applicable HDB requirements before proceeding, particularly if the proposed arrangement goes beyond a straightforward severance and involves a transfer of ownership shares.
What If There Is an Existing Bank Loan?
Where the property is mortgaged, the title will ordinarily reflect the bank's registered mortgage.
Whether the bank's involvement or consent is required will depend on the nature of the transaction and the documentation being lodged.
This is another reason to distinguish between a change in manner of holding and an actual transfer of ownership.
Your conveyancing lawyer can check the property's title and existing mortgage before advising on the appropriate procedure.
Joint Tenancy vs Tenancy-in-Common: Quick Comparison
| Joint Tenancy | Tenancy-in-Common |
|---|---|
| Owners hold the property jointly | Each owner has a distinct and identifiable share |
| Right of survivorship applies | No right of survivorship |
| Deceased owner's interest generally passes automatically to the surviving joint tenant(s) | Deceased owner's share forms part of his or her estate |
| Individual percentage shares are not separately held in the same way | Ownership shares can be specifically identified, such as 50:50 or 70:30 |
| Commonly used by married couples | Often used for estate planning and other co-ownership arrangements |
Should You Sever Your Joint Tenancy?
There is no single answer that applies to every property owner.
Severance may be appropriate where you are:
preparing or reviewing your estate plan;
making a Will;
separated from your spouse;
contemplating divorce;
restructuring family property ownership; or
concerned about the effect of the right of survivorship.
However, changing the manner of holding can have significant consequences.
Once the joint tenancy has been severed, the right of survivorship no longer operates in the same manner in respect of the severed share.
It is therefore advisable to understand the legal and estate-planning consequences before proceeding.
Need Help Changing From Joint Tenancy to Tenancy-in-Common?
Changing a property from joint tenancy to tenancy-in-common may appear straightforward, but the correct procedure depends on the property's existing ownership structure, whether all owners agree, and whether the property is an HDB flat or private property.
At YY Lee & Associates LLC, we can advise property owners on the legal implications of severing a joint tenancy and assist with the necessary documentation and conveyancing process.
If the property is also affected by a separation or divorce, it is particularly important to consider the severance together with the wider matrimonial asset and estate-planning implications.
Frequently Asked Questions
Can I change a joint tenancy to tenancy-in-common without my spouse's consent?
Potentially, yes. Section 53(5) of the Land Titles Act allows a joint tenant to sever a joint tenancy through an instrument of declaration in the approved form, subject to the required service and registration procedure.
Do both owners need to sign?
Not necessarily. There are separate SLA forms for severance by all joint tenants and severance by an individual joint tenant.
What happens to my share after severance?
For two joint tenants, a statutory severance would ordinarily result in the parties holding equal shares as tenants-in-common. Section 53(6) governs the resulting proportionate shares.
Does my share automatically go to the other owner when I die?
Not after the joint tenancy has been severed. A tenant-in-common's share does not pass to the other co-owner through the right of survivorship. It instead forms part of the deceased owner's estate.
Should I make a Will after severing a joint tenancy?
It is generally sensible to review your Will and wider estate plan after changing the manner in which a major asset such as your home is held. Severance changes what happens to your interest in the property upon death.
Is severing a joint tenancy the same as transferring my share to my spouse?
No. Severance changes the manner of co-ownership. A transfer involves transferring an ownership interest from one party to another and can have different legal, CPF, financing and tax consequences.