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Importance of joint-tenancy, difference with tenancy-in-common

Importance of joint-tenancy, difference with tenancy-in-common

The instruments of joint tenancy and tenancy-in-common, or the manner of holding a property according to the Housing and Development Board (HDB), have been a point of contention in the Singapore Muslim community. On 24 July 2018, the Office of the Mufti sent a question to the ‘Fatwa’ Committee regarding a decision on joint tenancy issued in 2008. The ‘fatwa’ was reviewed in 2008, but the public faced challenges and difficulties. It was discussed from July 2018 to February 2019. Hence, it is of utmost importance to elucidate each instrument and its differences to the public today.

Instrument background and history

For joint tenancy, there are no separate shares. The property is jointly owned. There is a unity of possession, time, title and interest. The most important factor is that the surviving joint owner will fully and wholly own the property when one owner passes on. Upon death, the share of the deceased is extinguished. For the second instrument, the tenancy-in-common, co-owners hold separate shares in the property. Upon death, the share of the deceased would be passed on to his or her estate.

Muslim scholars differ in opinion on these instruments. Some said joint tenancy could not exist because they do not recognise the concept of ‘hibah ruqba’ (conditional gift upon death). On the other hand, some scholars said joint tenancy might be recognised as ‘hibah ruqba’ as it is indeed a form of ‘hibah ruqba’. Before the ‘fatwa’ was formally made known in Singapore, people would craft ‘hibah ruqba’ for one another as a form of joint tenancy. For instance, a husband and wife would draft a ‘hibah ruqba’ document for each other for their matrimonial home with an ustaz or a lawyer.

Today, the latest ‘fatwa’ from the ‘Fatwa’ Committee under the Islamic Religious Council of Singapore (MUIS) concluded that joint tenants, during their lifetime, have the option of selecting joint tenancy or tenancy-in-common contracts. Both instruments have their own merits. Selecting either would mean the owners agree to meet its conditions and objectives. With the two options made available to the public, additional contracts such as the ‘hibah ruqba’ or ‘nuzriah’ grants are no longer required. The revision will help avoid the issue of ambiguous intentions.

Various implementation

One case study involves husband and wife, Selamat and Salimah (all names henceforth changed to protect identities). The couple has a daughter named Sally. The couple held a house in joint tenancy. Selamat passed on, leaving Salimah with full ownership of the house. Before Salimah passes on, she adds Sally’s name as a joint tenant (with certain considerations to comply with in today’s context). When Salimah dies, Sally will attain full ownership of the property.

However, contestation will arise should the property not be shared under joint tenancy, and Selamat has male siblings (Sally’s paternal uncles). The uncles may demand their share of the property, which may leave Salimah and Sally homeless. This is an example of a case showing injustice towards the survivors.

A second case study will show the opposite scenario. Husband Adil and wife Adilah were married for 30 years and had two adult sons. Later, the couple divorced and sold their matrimonial home. Each parent got their share. Adilah’s share may be passed on to her two sons upon death. Adil married a foreigner, Sarah, and bought a three-room HDB flat. Sarah was named as a joint tenant in the latter property. Adilah passed on, and the sons received shares from her estate. Subsequently, Adil passed on too. However, the sons received nothing due to the naming of Sarah as a joint tenant.

The third case study is about seven siblings, the children of Maria and Azman. Maria and Azman’s home is held in joint tenancy. Azman has fully paid for the house. He passed on, leaving Maria with 100% ownership of the property. Maria decides to name one of the unmarried children, Abu, as a joint tenant. The other siblings agreed. However, when Maria passed on, the siblings demanded their share of the money from the property, claiming it to be “their father’s house”. The six siblings did not receive a single cent. This scenario frequently occurs in the Singapore Muslim community.

Thus, the purpose of the ‘fatwa’ is not to evaluate which instrument is better than the other. It is to dispel the confusion that joint tenancy is against Islamic law. The issue is the right of survivorship, not how the house is held. The right of survivorship means the other owner fully owns the house when one owner dies. The deceased’s right also gets extinguished immediately upon death.

According to MUIS, joint tenancy may be seen as a form of ‘hibah ruqba’; hence, it will not go against Islamic law and ‘faraid’. Nonetheless, it must be understood that Islamic scholars have conflicting views on the concept of ‘hibah ruqba’.

Faiz Badruddin Tyabji (1968) outlined the legal effect of ‘hibah’ as “the immediate and absolute ownership of the subject of the ‘hibah’ is transferred to the donee; and where the property is purported to be transferred by way of ‘hibah’ with conditions, or restrictions, as to its use, or disposal, or alienation, the conditions or restrictions may be void…” and ‘ruqba’ as “a ‘hibah’ (or gift of the absolute ownership of some specified property) with a condition that if the donee survives the donor, the subject of the ‘hibah’ shall belong absolutely to the donee”. These definitions were stated in the case of Shafeeg bin Salim Talib and another v Fatimah bte Abud bin Talib and others (2010).

Conclusion

Overall, the main question of whether survivors need to sell the house held in joint tenancy to give to the beneficiaries has been answered: no, the survivors need not sell the house, and the instrument is considered Islamic as laid out in the ‘fatwa’ by MUIS. In addition, the public should understand what forms the estate or ‘harta pusaka’ of the deceased, like the house, bank accounts, car, shares and jewellery, and what does not, like a house in joint tenancy and shared bank accounts. 

Islamic law is perfect, but the implementation is not always so. It cannot cover every single scenario. You need to know what is best for your family and understand its unique circumstances. The needs and wants of beneficiaries must also be considered. Then, you decide, based on existing ‘fatwa’ and laws. Most importantly, we need to follow a contextualised version of Islam. We need to analyse the Singapore context and look at Singapore and Islamic law in Singapore, which is subject to the Administration of Muslim Law Act (AMLA) 1966.

References

Mohammad Rizuan Mohammad Yasin graduated from the University of Manchester with a Bachelor of Laws (LLB) in 2014. He trained at B. Rao & K. S. Rajah under Fazal Mohamed before he was called to the Singapore Bar as an advocate and solicitor. Rizuan practised for a period of time at a mid-sized law firm before returning to B. Rao & K. S. Rajah. He is a general practitioner and deals with a wide area of practice, including, but not limited to, civil and criminal litigation, family litigation and syariah divorces. He is also trained in Muslim estate planning involving ‘nuzriah’, ‘hibah’ and deeds of family arrangement.

Faiz Badruddin Tyabji. (1968). Muslim Law: The Personal Laws of Muslims in India and Pakistan (4th edition). N M Tripathi Private Limited.

Fatwa Joint Tenancy 2019. Administration of Muslim Law Act (Cap 3) s32. Retrieved October 10, 2022 from https://www.muis.gov.sg/officeofthemufti/Fatwa/English-Joint-Tenancy

Manner of Holding. HDB. Retrieved October 10, 2022, from https://www.hdb.gov.sg/residential/living-in-an-hdb-flat/changing-owners-occupiers/change-in-ownership/change-in-flat-ownership/manner-of-holdingShafeeg bin Salim Talib and another v Fatimah bte Abud bin Talib and others. (2010). https://www.elitigation.sg/gd/s/2010_SGCA_11

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