Joint Tenancy 2019 (English)

Administration of Muslim Law Act

(Chapter 3, Section 32)

Fatwa issued by Fatwa Committee, Islamic Religious Council of Singapore

The Fatwa Committee have discussed Joint Tenancy at the 12^th fatwa meeting on July 24, 2018; the 13^th meeting on October 25, 2018; the 14^th meeting on November 27, 2018 and the 15^th meeting on February 19, 2019.

Fatwa

بسم الله الرحمن الرحيم

الحمد لله رب العالمين، والصلاة والسلام على سيد المرسلين وإمام المتقين نبينا محمد وعلى آله وأصحابه أجمعين. اللهم أرنا الحق حقا وارزقنا اتباعه، وأرنا الباطل باطلا وارزقنا اجتنابه، وبعد.

1. The Fatwa Committee received a question from the Office of the Mufti on 24 July 2018, regarding a fatwa decision on joint tenancy issued by the Fatwa Committee in 2008. The Office of the Mufti has brought to the attention of the Fatwa Committee that it has received various feedback from the practitioners in the financial management and planning sector, legal experts, as well as the public, with respect to the challenges and difficulties that persist even after the issuance of the reviewed fatwa on joint tenancy in 2008. The Office of the Mufti hence asked the Fatwa Committee if the fatwa on the joint tenancy can be reviewed again to address this issue.

Background

2. The Fatwa Committee decided in 1997 that joint tenancy is a form of partnership based on the concept of sharikah in which the two joint tenants have an equal share of the asset, i.e. 50% -50%. When one of the joint tenants dies, the surviving joint tenant is only a trustee for the share owned by the deceased tenant. The surviving joint tenant hence needs to distribute the share of the deceased to his beneficiaries according to faraid.

3. In 2008, the Fatwa Committee made its first revision after considering feedback from various parties, especially from members of the public who held properties under joint tenancy. There was a request for the joint tenants to be given an alternative option so that they could make appropriate plans.

4. The Fatwa Committee at that time had reconsidered the application of the concept of partnership (sharikah) on a joint tenancy contract and compared it with several existing contracts in fiqh. Based on that consideration, the Fatwa Committee in 2008 decided that each joint tenant should still have the same share (50%-50%). However, the joint tenants have the option of either making additional documents, nuzriah or hibah ruqbā, to give their share to the surviving joint tenant, or to not make any additional document so that their share can be divided according to faraid after his death.¹

5. Since the 2008 fatwa decision, the Fatwa Committee continues to examine the effects of its implementation and implications on the public. Feedback has been received from various parties, including the Muslim Financial Planners Association and the Muslim Law Practice Committee. Based on the reports on the challenges that arose from the application of the 2008 fatwa, the Fatwa Committee has thus decided to review the existing fatwa.

Issues arising from the 2008 fatwa on joint tenancy

6. The Fatwa Committee has identified several challenges in the implementation of the fatwa issued in 2008. These are due to several reasons:

I. Conflict between joint tenant’s intention and method of property distribution after his death, due to ambiguity of his intentions. There are members of the community who, despite their intention to give their share to the joint tenants, did not manage to prepare nuzriah or hibah ruqbā documents in time. This resulted in some beneficiaries demanding the surviving joint tenant to sell the house and divide the proceeds according to faraid.

II. The surviving joint tenant is pressured by the beneficiaries to sell the property owned together with the deceased and to move to another house, so that the share owned by the deceased can be divided according to faraid. In many of these cases, the situation caused hardship to the surviving joint tenant.²

III. Challenges of implementing 2008 fatwa

It is legally established that joint tenancy contract is a form of contract in which each of the joint tenants together own the whole interest in the property. In joint tenancy, the right of survivorship applies. This means that upon the death of any joint tenant, his interest in the property would automatically be passed on to the remaining joint tenant(s). This is hence different from the concept of 50%-50% ownership as decided in the 2008 fatwa.³ Thus, there were cases where joint tenants had intended to distribute their property according to faraid as per the 2008 fatwa decision, but this could not be fully implemented due to the statutory law.

Fatwa Committee's considerations

7. Acknowledging the facts, the Fatwa Committee believes that there is a need to eliminate existing difficulties in order to safeguard public interest. Several issues have been taken into consideration:

• Understanding the joint tenancy contract. Is it a sharikah contract where the share of each joint tenant is set at 50%? What is the meaning and purpose of the right of survivorship concept in the joint tenancy contract?

• The Fatwa decision in 2008 was intended to give every joint tenant the option to decide whether the property is to be divided in accordance to faraid, or to let it be wholly owned by the surviving joint tenant based on the concept of right of survivorship, and in accordance with joint tenancy law. However, there is still the prevailing issue of the ambiguity of the deceased joint tenant’s intention.

• Based on the established law, there are two types of ownership in Singapore, i.e. joint tenancy and tenancy-in-common.⁴ Joint tenancy is a form of ownership, in which the joint tenants own the entire property together without distinguishing the size of their share. The joint tenant's interest in the property ceases upon his death. On the other hand, the second type of ownership, i.e. tenancy-in-common is one where each joint tenant holds a separate and distinct share in the property. Therefore, the share of the owner in the tenancy-in-common contract becomes a part of his inheritance upon his death.

• The ambiguity that arises is caused by the option between faraid distribution and right of survivorship, under the joint tenancy contract. However, distribution based on faraid is more appropriate and clearer under the tenancy-in-common contract, in which the owner can determine his share of the property owned. His share can then be distributed according to faraid without any legal restrictions after his death. This is in parallel with the earlier fatwas.

Fatwa discussion and decision

8. The Fatwa Committee observes that there are discussions in our fiqh on common ownership, such as the concept of "one ownership" (tamlīk wāḥid), which is discussed among some scholars of the Hanafi school of thought as stated in the book al-Hidāyah.⁵ However, there is a difference between the concept of common ownership as stated in al-Hidayah and the concept of right of survivorship as stipulated by the law. In the right of survivorship, ownership of the deceased joint tenant will cease upon his death. Therefore, the surviving joint tenant will have 100 percent absolute ownership of the property, without the need for a transfer of ownership (from the deceased to the surviving joint tenant). On the other hand, based on the understanding of the fiqh relating to "one ownership" (tamlīk wāḥid), although they are considered as joint owners, they only partially own the property upon death of one of the joint owners.

9. Therefore, the Fatwa Committee believes that this contract is different from the concept of sharikah, and is also different from the concept of "one ownership" (tamlīk wāḥid). It is thus a new form of contract with its own benefits that serves the community’s needs. Islamic scholars are of the opinion that the general ruling of a new contract is permissible.⁶ According to Al-Kāsānī from the Hanafi school of thought, a contract that can cultivate wealth is permitted. This is explained in his book, Badā’i al-Ṣanā’i:

إن هذه العقود شرعت لمصالح العباد وحاجتهم إلى استنماء المال متحققة، وهذا النوع طريق صالح للاستنماء، فكان مشروعا. ⁷

Meaning: "Indeed, these contracts are permitted for the benefit of humankind and their need to cultivate wealth is a real need. And this form of contract is a righteous way to cultivate wealth, therefore it is religiously valid."

Imām Al-Shāṭibī, in his book, also shares the same view that if the contract can safeguard the interest of human beings, it is indeed permissible:

فإنا وجدنا الشارع قاصدا لمصالح العباد والأحكام العادية تدور معه حيثما دار فترى الشيء الواحد يمنع في حال لا تكون فيه مصلحة فإذا كان فيه مصلحة جاز... ولم نجد هذا في باب العبادات مفهوما كما فهمناه في العادات. ⁸

Meaning: "We establish that God intends to safeguard the interests of humankind and laws relating to their daily affairs [apart from the acts on worship] evolves around this intention. Therefore, you will find that something may be forbidden in certain situations where there is no benefit [for humankind], however where there is benefit [for humankind], it becomes permissible ... And this is not found in matters of worship as understood in other chapters apart from it."

10. With that, as long as the contract does not contradict the requirements of shariah, such as 1) the objective of the contract is unclear, 2) the contract contains ambiguity, 3) there are elements of injustice and oppression, 4) there are elements of deceit; then the contract is considered to be valid, and the terms set out in the contract are legally binding. This is based on the hadith of Prophet s.a.w.:

والمسلمون على شروطهم الا شرطا حرم حلالا او احل حراما

Meaning: "And the Muslims must fulfill the conditions they have agreed upon, except the conditions that prohibit something lawful and legalize something illegal." ⁹

11. In conclusion, joint tenants during their lifetime have the option of selecting joint tenancy contracts or tenancy-in-common contracts. Both forms of joint ownership have their own advantages. By selecting one of the above common ownership, the owners agree to meet the conditions set out, and the objectives of each of these agreements that they had made during their lifetime. Allah says:

Meaning: "O ye who believe! Fulfill all obligations." [Al-Mā'idah: Verse 1].

12. A joint tenancy contract would mean the following for the joint tenants:

a. They have expressed their desire that a shared property remains wholly owned by a surviving joint tenant after their death;

b. Each joint tenant is aware that their interest in the property ceases upon death;

c. Joint tenants no longer need to make any additional documents.

13. On the other hand, a tenancy-in-common contract would mean the following for the owners:

a. They have expressed their desire to own a part of a shared property;

b. They want their share to be part of their inheritance after their death.

14. With the option between two different instruments i.e. joint tenancy and tenancy-in-common being made available, additional contract documents such as hibah ruqbā or nuzriah grants are no longer required. This will also help to avoid the issue of ambiguous intentions mentioned earlier.

15. The Fatwa Committee advises members of the public to seek expert advice and opinions before making any decision in choosing or changing from joint tenancy to tenancy-in-common contracts. Owners need to be clear with the decision made because there are certain implications for owners who choose a tenancy-in-common contract, such as the need to sell the house as soon as one of the co-owners dies, and this can cause difficulties to other owners involved who has a share in the tenancy-in-common contract.

16. The Fatwa Committee would also like to remind the owners to make due considerations before choosing the desired type of ownership. Owners should ensure that no negligence and injustice is inflicted on the family.

17. If there are still properties that are not distributed according to faraid, the 2019 fatwa can be applied to validate the ownership of the surviving joint tenant in accordance with the law on joint tenancy (right-of-survivorship). However, it is advised for the surviving joint tenant to discuss amicably with the rest of the beneficiaries to find the best way out possible.

الله أعلم، وبالله التوفيق ، وصلى الله على سيدنا محمد وعلى آله وصحبه وسلم.

DR MOHAMED FATRIS BIN BAKARAM
CHAIRMAN, FATWA (LEGAL) COMMITTEE
MUFTI OF THE REPUBLIC OF SINGAPORE
ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE (MUIS)

[1] “The fatwa sets that a joint tenant owns half of the house, the heir cannot force the owner to sell the said property and if there is aqd hibah ruqbā or nuzriah, the living owner becomes the absolute owner of the property” Decision of the fatwa on Joint tenancy 2008.

[2] In 2017 alone, the MUIS Call Center received about 371 calls regarding the estate. It increased to 455 calls in 2018. 70% of the questions raised were on joint tenancy.

[3] Refer to the case of Shafeeg bin Salim Talib and another v Fatimah bte Abud bin Talib and others [2010] 2 SLR 1123 at 43 where CJ Chan Sek Keong held: “It is therefore clear from these authorities that legally no interest in the Property passed to the 1st Respondent upon the Deceased’s death. Whatever interest the Deceased had in the Property simply ceased to exist, and the 1st Respondent became the sole absolute owner because she would no longer be subject to the right of survivorship.”

[4] Section 53(1-3), Land Titles Act (Cap. 157)

“Manner of holding by joint tenants

53.—(1) In every instrument affecting registered land, co-tenants claiming under the instrument shall, unless they are described as tenants-in-common, hold the land as joint tenants; and if they are described as tenants-in-common, the shares in the registered land to be held by them shall, subject to subsection (2), be specified in the instrument.

(2) Persons described as tenants-in-common shall, in the absence of any expression to the contrary, be presumed to be entitled in equal shares.

(3) Tenants-in-common entitled in equal shares who intend to hold their estate or interest in land as joint tenants may jointly declare by an instrument of declaration in the approved form that they hold the estate or interest in their respective shares in the registered land as joint tenants of the entire estate or interest thereof.”

[5] The text, as quoted from kitab al-Hidayah is as follows:

و إن وهبها واحد من اثنين لا يجوز عند أبي حنيفة، وقالا: يصح؛ لأن هذه هبة الجملة منهما؛ إذ التمليك واحد، فلا يتحقق الشيوع، كما إذا رهن من رجلين دارا

Meaning: “And if an owner gifts a house to two persons, it is not allowed by Imam Abu Hanifah. However, his two disciples are of the opinion that it is valid because the gift is of the whole of the house to each of the two persons, which would become a sole possession, which would not constitute syuyū’ (a situation in which the shares of the respective individuals in that property are not distinguishable), similar to as if to charge a land to two people. " See: Al-Marghīnānī, Al- Hidāyah, vol 6, page 253.

[6] Only the al-Ẓāhiriyyah school of thought that argues that the origin of the law for the new contract is haram or forbidden. Ibn Taymiyyah, Majmū 'al-Fatāwā, juz 29, page 126–127; see also, al-Qarhadāghī, Buḥuth fi Fiqh al-Mu'amalāt al-Māliyah al-Mu'āṣarah, page 137; Al-Qardāwī, Maqāṣid al-Syarī'ah al-Muta'alliqah bi al-Māl, page 76–77.

[7] Al-Kāsānī, Badā’i al-Ṣanā’i, juz 13, page. 76.

[8] Al-Shāṭibī, Al-Muwāfaqāt, page 305.

[9] Al-Tirmizī, Sunan al-Tirmizī, hadith no. 1352; See also: Al-Dārquṭnī, Sunan al-Dārquṭnī, hadith no. 2856; Abū Dāwūd, Sunan Abī Dāwūd, hadith no. 3594; Al-Asqalanī, Fatḥ al-Bārī bi Syarh Ṣaḥīḥ al-Bukhārī, juz 7, page 327.