Land Lecture 10
Strata Title & the HDB 22/10/2009 00:09:00
Exams
- for model questions, look at past years DipSing papers.
- for materials that can be brought into the exam, look at the reading list.
Recent case:
Loo Chay Sit v Estate of Loo Chay Loo [2009 SGCA 47]
o Brother, LCS claimed to have supplied money for the
purchase of the house. Case concerns evidence.
o Prof: interested in the following:
 if LCS is claiming that the registered proprietor
holds…what about the indefeasible title.
 "to impugn...in so far as the appellant”.
 Obiter dicta in Bebe: only express trust…
 Loo Chay Sit v Estate of Loo Chay Loo:
 Andrew Phang assumed that resulting trust
Strata Title
Prob: how do you create a freehold flat?
2 cases: Austerberry v Oldham and [check]
neither common law or equity would allow the burden of positive
covenant to run with the land.
Prob:
banks issue directive never to accept title to a freehold flats
therefore it is done through leases.
Problem with…
who is the landlord – if he is a pte indiv, does he really have the
interests of the flatholders’ apt?
pte individuals set up lots of paper companies to collect service
charge.
the prob with leases is that there is no standard lease.
o Tenants can’t sue each other; they have to ask the
landlord to sue other tenants.

Land Title (Strata) Act
- start with the owner of land (developer), he submit to the registrar
an approved strata title plan showing each individual unit the share
value and common property. Once the plan is registered in the Starta
Title Plan register. The registrar then issue a subsidiary strata…title.
the owner of the lot is the…of the air space which is the owner’s flat.
if the titile of the land at the bottom is a freehold, then the owner of the
flat.
Shares value determine the voting rights of the subsidiary
shareholders, the quantum and the proportion of the
maintenance.
MCST No. 473 v De Beers Jewellery
lays down the basic rule for assessing contributions: the
contribution has to be proportional to the share value.
o Same as in kleinworth v Benson
Facts: they paid money unlawfully levied on them and wanted it
back.
Each subsidiary proprietor is subject to the exclusive use of his own lot
subject to the strata titles and any bye-laws of the Mgt corporation.
Q: what happens is a subsidiary proprietor (“SP”) does something in
brach of the bye law
Choo Kok Lin v MCST Plan no. 2405
o Facts: SP installed aircon on parts of the common property
in breach of the bye law and the MCST asked him to
remove it. Judge pointed out that just bec in breach of
bye-law doesn’t mean the court needs to order an
mandatory injunction (bec injunctions are equitable
remedies which is a discretion of the court). Court should
ask itself whether to order the injunction would be a fair
result. If the harm of the injunction outweigh the benefits
of the MCST, then should not order the injunction.
o Common property belongs to all SP as tenants in common
(unity of possession of the common property).

Poh Kiong Kok v Management Corporation Strata Title Plan No.
581
o Under the scheme, residents with cars are allocated
reserved lots. Result: although everyone had somewhere
to park, could not park wherever they like. Prob: some lots
are better than others. Poh did not get a good lot and
complained that the scheme is unfair.
o Court: ruled that scheme was unlawful bec carpark lots are
common property belonging to all SPs who are tenants in
common.
o S. 33 of the Building Maintenance
 Exclusive use bye-law.
The Act provides for implied easements for each units and the
common property
o Rights of support
o light
o shelter
o passage…
o sewerage
these easements arises automatically under the statue.
Does not get destroyed when both units owned by the
same person.
SPs formed the mgt corp which is a body corporate called the
Mgt Corp of Strata Title no….
o Mgt corp can sue and be sued in its own name and
responsible for the maintenance of common property
o can institute and defend action on behalf of SPs
o MCST No. 2297 v Seasons Park Ltd.
o Day to day running is managed by the Mgt Council.
o In practice, in larger estate the Mgt Corp appoints a
managing agent in the form of estate agents. Cannot
delegate to Managing agent the power to fix monthly
contribution.
 2 funds: maintenance (for day to day matters) and
sinking funds (for major repairs and repainting).

o Strata Title Board provides swift resolution to disputes.
Collective Sale
Law in 1999, weighted majority for enbloc sale: 90% for …years
and 80% otherwise.
enbloc sale can be seen in terms of national policies.
Prof: a relatively painless way to housing large numbers of
people without compulsorily acquiring land. It gives the market
value of the land. It gives them a profit.
recent amendments to enbloc sale.
o 2007 Act
 90% or 80% approval of SPs with not less than
90%/80% of the share value and …
 previously only 80%
 reason for amendment: some mixed development
e.g. MCST no. 473 v De Beers
 prob in the past: commercial units had higher share
value than owners-occupiers. (old law)
 other amendments: require resolutions at General
Meetings.
 if 100% agreement, don’t need procedure in the
statute bec no dissenting owners. If 100% faster.
 if there are dissenters, then the proposal for the sale
ust be approve by the Strata title Board. Majority
cant force its will on the minority.
 there can be mediation but at the end of the day, the
board would have to decide.
 Act prvides that the board shold only consider
objection on financial grounds e.g. proceeds from
sale not enough to pay off mortgage. The board
cannot consider personal reasons: age, disability,
proximity to shop/schools, sentimental attachment.
S. 84(A) Strata title Act
Financial loss construed in a narrow sense
o flat owner argued that money from sale not enough for her
to buy an equivalent flat.

o the Strata title board (“STB”): rejected this. The cost is
not replacement cost.
o definition of financial loss: see s. 8”less than price you
paid”. S. 8C
STB determine
transaction “not in good faith”.
s. 10
On the face of it, not easy to object to an enbloc sale
Ng Eng Ghee v Mamata Kapildev Dave (Horizon Towers)[p. 26] *
Judge rejected the analogy with the mortgagee…the sale
committee agents for all proprietors as such they stand in a
fiduciary position for all proprietors. Judge drew an analogy with
trustee when exercising a power to sell. Normally trustees have
power to sell a trust property. Since the sale committee has
power to sell flats of objecting owners, therefore they should be
a higher std of conduct than in a case of ordinary common law of
agency. Impt points raises:
o Duties of fiduciaries are onerous.
o the STB considered the issue of the conflict of interests in
the Horizon Tower case.
o OTF: 2 members of the sales committee who bought extra
flats. The STB considered this and asked if there was a
conflict of interests. STB decided this wasn’t proved. COA:
rejected this approach. The Sales committee are
fiduciaries; they do not have to prove an actual conflict of
interests; quite enough if there is a possibility of a conflict
of interests. By buying extra flats, they have to borrow
money, therefore quite enough. Case referred to Boardman
v Phipps as setting the std for the members of the sale
committee: high std.
o on the point of timig
 as fiduciaries, the COA say that the sale committee
must consider the possibility of the marketing
movement. COA: said might be appropriate to wait
at a rising market to see if the market goes up.

 "in good faith” – not enough that the price was fair –
the test was whether it was the best price raosnably
obtainable in the prevailing circumstances.
 COA criticised the way the sale committee handled
the case.
 COA: tribunal/STB has to play an inquisitorial role
i.e. board not confined to the evidence put before it b
the parties. STB has to seek out the facts for itself
whenever it has reasons to believe that the parties…
 Prof:
 it becomes easier to challenge collective sale
but causes delays. Impt: imposes duties on the
sale committee on higher level. The committee
must make its own decision in good faith
responsibly
 makes it dangerous for anyone to serve on the
sales committee; indiv members could be
make personally liable.
HDB
over 80% of the population stays in HBD flats; shows the
importance and success of the HDB
basic policy: is for people to own their own flats. In practice: 99
year leases.
HDB is a form of social/public housing which explains the
restrictions.
flat is cheaper than those in the private development.
the strict condition of eligibility
authorised occupiers.
HDB conditions for purchasing flats.
s. 55 of the Housing Development Act (“HAD”)
o HDB can forfeit
 (a) if rent not paid for 3 months
 (b) if owners breached conditions for assignment,
subletting, and HDB sent notice
 (c) owner breached other conditions…

o it seems that there is no provisions for relief against
forfeiture.
 can’t argue that s. 18 CLPA applies which is for
statutory forfeiture.
o Q: can equity grant relief against statutory forfeiture?
 prof: don’t think so bec this represents parliament’s
will. No relief for forfeiture.
o S. 56 – to compulsorily acquired flats
HAD
o Common property does not belong to flat owners but the
HDB.
o the common property
o town councils maintain the common property. They make
bye-law for admin and use of common property. They
determine the conservancy fees.
S. 50
o Can’t sell or mortagge HDB flat without he prior written
consent of the HDB
S. 51(1)
o Can’t create an equitable mortgage by a deposit of title
deeds in respect of HDB flats.
 HDB flat does not pass on bankruptcy – a protection
for the flat owners.
Subsection 4
o No trust without the approval of the HDB.
Q: is this ownership?
o Tan Sook Yee: “Private Ownership and…” discussed with
jurisprudence of the concept of ownership. Conclude that
tenants of HDB are owners.
Q1
(i) bye law 14 - no animal in lot which may cause annoyance.
Nothing to stop mgt corp from passing a new bye-law
s. 105 - any members can vote to revote the bye-law where it
considers…in the use and enjoyment of property.
the language is wide.

(ii) Donald
Question: is this common property or not? Common Property
defined in subsection 2.
o it seems they are on the property
o even if not, need to check the bye-laws.
(iii) Chow
door
o mandatory injunction
leaks
o upper flat owner has to pay for leaks. Backed up by S.
101(8) – places the burden of proof on the upper flat
owner to prove that the leak did not originate from him.
2. for HDB – common property belongs to HDB
the tenants have no rights wrt to common pty.
answer: HDB adopted the old practice of the splitting the costs
between the lower and upper flat owners.
3. Jack
the prohibition on the creation of trusts wrt HDB flats is to
prevent people who are not eligible for HDB flats for someone to
pay others to acquire HDB flats.
In Cheong Yoke Kuen
o COA: both express and resulting trusts accord with s. 51.
The constructive trusts are exempt.
o in Crown’s article: criticised that. Can’t answer whether a
trust has been created by looking at what trusts have been
created.
Courts tried to get around Cheong by asking…
Tan Sook Yee: it is a mess but should be sorted out by
legislation.
s. 51(6) – No person shall become….
in Tan Chui Lian v Neo Liew Eng
o said that S. 51(6) codified the matter in the Cheong case.
Ask whether Jill was or not eligiable for a HDB flat, if yes, then
Jack holds on trust for Jill, if not, then no.

29 Oct (Thu) 3pm Land Q&A session SR 4-4

10/22/2009 12:09:00 AM

10/22/2009 12:09:00 AM