Creditors' Ability To Enforce Judgements Via Writ Of Seizure And Sale Where The Judgment Debtor Is A Joint Tenant

Creditors who have commenced legal proceedings and obtained judgements or orders against their debtors can now enforce such judgments or orders by obtaining a Writ of Seizure and Sale (WSS) against the judgment debtor's interest in jointly-owned property (regardless of whether such interest is held under a joint tenancy or tenancy in common).

Previously, a judgment for the payment of money could not be enforced by way of a WSS against a judgment debtor's interest in immovable property which is held under joint tenancy. This meant that the creditors' mode of enforcement of judgment debt was limited.

The recent High Court decision in Peter Low LLC v Danial Patrick Higgins [2018] SGHC 59 (Peter Low) clarified that a joint tenant's interest in immovable property is exigible to a WSS under the statutory framework applicable in Singapore. This allows creditors to enforce judgment debts by obtaining a WSS against the judgment debtor's interest in jointly-owned property (regardless of whether such interest is held under a joint tenancy or tenancy in common).

Below we discuss (A) the legal arguments accepted by the High Court in Peter Low v Danial Patrick Higgins, (B) past cases discussing whether a judgment for the payment of money can be enforced by way of a WSS, (C) prior difficulties when executing WSS against interest in property held in joint tenancy, and (D) the legal effect of registering a WSS after Peter Low v Danial Patrick Higgins.

1. Legal arguments accepted by the High Court in Peter Low v Danial Patrick Higgins

   A judgment or an order may be enforced by way of a WSS, under which the judgment debtor's property can be seized and sold to satisfy the judgment debt. However, execution of a judgment debt by a WSS had its limitations. Namely, a judgment debtor's interest in property held under joint tenancy was not exigible to execution by way of a WSS, as established by the High Court in Malayan Banking Bhd v Focal Finance Ltd [1998] 3 SLR(R) 1008 (Malayan Banking). The same position was adopted in Chan Lung Kien v Chan Shwe Ching [2017] SGHC 136 (Chan Lung Kien).

   In the recent decision of Peter Low v Danial Patrick Higgins, the High Court held that a joint tenant's interest in immovable property is exigible to a WSS under the statutory framework applicable in Singapore. It was also held that, when a WSS is issued against a joint tenant's interest in land, the joint tenancy is severed when the debtor's interest is seized and this seizure occurs when the WSS is registered. The High Court made clear that this decision is confined to the interest of a joint tenant in land and does not extend to other firms of jointly held assets, such as joint bank accounts.

   The following key considerations (amongst others) led the High Court to hold that a WSS can be executed against a judgment debtor's interest in property held in joint tenancy:

   the overwhelming weight of Commonwealth authorities in favour of...