The Real Estate Law Review: Singapore
Introduction to the legal framework
i Ownership of real estate
In Singapore, all land is held by the state;2 as such, land is not the subject of absolute ownership but of tenure. The state in turn issues various grants or leases of the land. These grants and leases are more commonly known as estates and typically comprise freehold estates, leasehold estates and estates in perpetuity.3 Each estate is reflective of the duration of the owner's interest in the land.
There are two main types of freehold estates: fee simple, where a person owns the land indefinitely, without conditions, and upon his or her death, the land passes onto his or her successors (i.e., the closest to absolute ownership); and life estate, where a person owns the land for the duration of his or her lifetime.4
A leasehold estate lease has a definite duration, typically of 99 or 999 years. However, leases granted by government landlords, the JTC Corporation (JTC) (the industrial landlord) and the Housing and Development Board (HDB) may be shorter and may instead last for 30 or 60 years. At the end of the lease period, the land will revert to these government landlords, who themselves own the land under the head lease from the state.
Irrespective of the type of estate, all land may be acquired by the state under the Land Acquisition Act 1966 of Singapore, and any land developments are subject to planning controls under the Planning Act 1998 of Singapore.
Estates in perpetuity
An estate in perpetuity (or a statutory land grant) is an interest in land under which a person owns the land indefinitely, subject to certain conditions such as those set out in the State Lands Act 1920 of Singapore (SLA) (e.g., the right of the state to have free access to the land). Pursuant to the SLA, every grant of land granted before 1 March 1961 shall be deemed to confer an estate in perpetuity on the grantee.5
ii System of registration
Since the 1960s, two systems of land registration have operated in parallel in Singapore: registration under the Registration of Deeds Act 1988 of Singapore (RODA) and registration under the Land Titles Act 1993 of Singapore (LTA). However, with the enactment of the Land Titles (Amendment) Act 2001 of Singapore, virtually all land in Singapore has been converted and brought under the latter regime.
Land registered under the RODA
This land is known as 'unregistered land', and interest in the land is achieved by way of the signing, sealing and delivery of a deed. Registration of the deed with the Registry of Deeds secures priority (which is based on the date of registration) and ensures admissibility as evidence of title to the land in court. One of the key problems with this regime is the tedious process of the checking of title, which typically requires tracing back to at least 15 years prior to a deed registration to ensure a good root of title.
Land registered under the LTA
This land is known as 'registered land', and the advantage of this system over the unregistered land regime lies in the fact that only one document of title, upon which is endorsed every transaction affecting the particular property, has to be examined. However, registration is mandatory to effect the transfer of an interest in the land and, upon registration, the title is regarded as practically indefeasible. Upon registration, the Singapore Land Registry will issue a certificate of title containing the registration particulars of the title and a legal description of the property; a duplicate certificate of title is to be held by the current registered proprietor as proof of his or her title.
iii Choice of law
Transactions involving real estate in Singapore are typically governed by Singapore law, based on the lex rei sitae rule.
Where the proceedings are principally concerned with a question of title to, or right of possession of, foreign immovable property, the Singapore court has no jurisdiction to entertain such proceedings unless the question is based on a contract of personal equity between the parties, or if the question arises in the administration of a trust or the estate of a deceased person that is within the court's jurisdiction.6
Overview of real estate activity
Land has always been a much sought-after asset in land-scarce Singapore. Coupled with the government's active efforts to attract foreign investors and the increasing appetite for land among domestic players, it is no surprise that the Singapore real estate investment market has traditionally been a favourite with investors. For investors looking to acquire real estate in Singapore, financing can be obtained from banks and finance companies. However, the covid-19 pandemic has exerted downward pressure on the Singapore real estate market and suppressed both domestic and foreign appetite for real estate investments in Singapore due to the uncertain economic outlook. The Urban Redevelopment Authority of Singapore (URA) published real estate statistics showing that the private residential price index and private property rental index had a suppressed quarter-on-quarter rise of 1.1 per cent, and 1.8 per cent, respectively, in the third quarter of 2021.7 Conversely, the prices of office space and retail space have decreased and stagnated, with an office space and retail space price index of -2.4 per cent and 0.0 per cent, respectively, in the third quarter of 2021.8 The rental market for office space and retail space index has continued to declined significantly, with an office space and retail space rental index of -3.5 per cent and -2.7 per cent respectively.9 This is especially so given the covid-19 pandemic climate where companies are increasingly turning to work-from-home arrangements, decreasing the need for large office spaces.
i Acquisition of property
Land in Singapore may be zoned for residential, commercial or industrial purposes. In general, there is no restriction on foreign ownership of commercial or industrial property. However, when a foreign person10 seeks to transfer, purchase or acquire restricted residential property,11 the Residential Property Act 1976 of Singapore (RPA) provides that approval by the Minister for Law must first be obtained.12 For the purposes of the RPA, a foreign person includes a company incorporated in Singapore if the company has directors or members who are not Singapore citizens.13
Even if approval from the Minister for Law is granted, foreign persons may be required to use the residential property only for their (and their families') occupation, or for their employees' (and their employees' families') occupation; or ensure that the estate or interest in the residential property is not sold, assigned, transferred or otherwise disposed of within a certain period, among other conditions.14
In Singapore, there is a relatively high additional buyer's stamp duty of 30 per cent that is levied on foreign purchasers of residential properties where the foreign purchaser is an individual and 35 per cent if the foreign purchaser is a company.15 Nonetheless, despite the substantial stamp duty, there remains strong demand for Singapore residential properties from foreign purchasers. This is likely because of the levelling of taxation costs overseas, especially because other popular overseas destinations have also imposed restrictions to curb international demand for property.16 Singapore's tax rate hence appears lower and is able to continue to attract foreign investors.
ii Development of property
Foreign persons who wish to purchase residential property17 for the purpose of constructing flats or dwelling houses18 for sale must apply to the Controller for Residential Property for approval. Such approval, if granted, may be conditional on:
- the development being completed within a certain prescribed period;
- all units in the development not being sold to Singapore citizens or companies within two years of the date a temporary occupation permit is issued under the Building Control Act 1989 of Singapore; and
- where the foreign person is a company, its shares or any interest in such shares shall not be sold, assigned, transferred or otherwise disposed to any other person.19
The failure to complete the development within five years and sell all the units within another two years of obtaining temporary occupation permit for the development could result in foreign developers facing hefty penalties20 (including the forfeiture of a banker's guarantee equivalent to 10 per cent of the land purchase price), and therefore the developers may exert further downward pressure on property prices to avoid these consequences.
Notwithstanding the above, foreign persons are allowed to acquire the following without having to comply with the requirements of the RPA: a mortgage, charge or reconveyance of residential property;21 and residential property by way of tender or otherwise from the URA or any person or body that is duly appointed as an agent of the government.22
Structuring the investment
Real estate investment entities in Singapore commonly take the form of real estate investment trusts (REITs), business trusts, stapled entities or (private) companies.
i Limited liability company
Investment in real estate in Singapore can be done by way of a special purpose vehicle company that holds the title to the real estate. However, the distinction between a Singapore company (as defined in the RPA) and a foreign company is critical. While both types of companies can hold immovable property in Singapore, only a Singapore company may own and hold restricted residential property.
However, there are restrictions on the powers of certain companies to hold land. For instance, a company formed for objects not involving the acquisition of gain by itself or by its individual members shall not acquire any land without the approval of the Minister for Finance.25 In addition, a company generally does not enjoy favourable tax treatment and would be liable for the payment of income tax and goods and services tax (where applicable).
REITs are unit trusts that may be either listed or unlisted and that invest or propose to invest primarily in real estate and real estate-related assets. Essentially, capital is provided by investors in exchange for units in the REIT, and the acquired assets are held by the trustee as a trust property but are managed by a manager.
REITs are regulated by various statutes and codes in Singapore.26 REITs listed on the Singapore Stock Exchange (SGX-ST) are also required to comply with the SGX-ST Listing Manual. Although listed REITs are structured as trusts, they have their redeemability feature suspended while they are listed; hence, unitholders of listed trusts can only exit from their investments by selling them on the SGX-ST.
Under the Code of Collective Investment Schemes (the CIS Code), real estate investments and activities undertaken by REITs are subject to the following restrictions:
- at least 75 per cent of their deposited property should be invested in income-producing real estate;
- they should not undertake property development activities or invest in unlisted property development companies unless they intend to hold the developed property upon completion;
- they should not invest in vacant land and mortgages; and
- the total contract value of activities and investments undertaken in accordance with (b) should not exceed 10 per cent of their deposited property (with effect from 1 January 2016, the value may exceed 10 per cent of the property fund's deposited property, subject to a maximum of 25 per cent of the property fund's deposited property) provided certain conditions27 are satisfied.28
Although REITs are allowed to borrow for investment purposes and may mortgage their deposited property to secure such borrowings, the CIS Code provides that their total borrowings and deferred payments (collectively, aggregate leverage) should not, before 1 January 2022, exceed 50 per cent of their deposited property. On or after 1 January 2022, the aggregate leverage should not exceed 45 per cent of their deposited property unless the property fund has a minimum adjusted interest coverage ratio of 2.5 times after taking into account the interest payment obligations arising from the new borrowings. If the latter applies, the aggregate leverage may reach a maximum of 50 per cent.29
Listed REITs, unlike other investment entities,30 are accorded favourable tax treatment in Singapore. First, trustees of listed REITs that distribute at least 90 per cent of their taxable income to unitholders in the same year in which the income is derived and obtain a tax ruling from the Inland Revenue Authority of Singapore (IRAS) are not required to pay income tax on such distributed income.31 Second, individual unitholders need not pay income tax in respect of distributions from the taxable income of listed REITs, regardless of their nationality or tax residence status.32 Third, withholding tax on REIT distributions to foreign non-individual investors would be lowered from 20 to 10 per cent until 31 December 2025.33
However, the CIS Code does not require the trust deed of REITs to provide that the liability of investors should be limited to their investment in the scheme. Therefore, unlike the beneficiaries of business trusts and shareholders of limited liability companies, unitholders of REITs could conceivably be liable to creditors for the debts of the REIT.34
REIT managers and individual directors are subject to a statutory duty to prioritise the interests of REIT unitholders over those of the REIT manager and the shareholders in the event of a conflict of interest. The imposition of such a statutory duty is in line with the current obligations on trustee managers under the Business Trusts Act 2004 of Singapore (BTA).
iii Business trust
Business trusts are business enterprises structured as trusts and are regulated by the BTA. They may be listed on the SGX-ST and, when so listed, will have to comply with the SGX-ST Listing Manual. In addition, the Takeover Code will, unless waived by the Securities Industry Council, apply to listed registered business trusts and unlisted registered business trusts with more than 50 unitholders and net tangible assets of S$5 million or more.35
As with REITs, capital in a business trust is contributed by investors in exchange for units in the business trust. However, legal ownership and management of the acquired assets are vested in one single entity: the trustee manager.36
The investments, activities and borrowings of business trusts are not subject to any restrictions under the BTA and as such, business trusts, unlike REITs, are free to hold various assets, undertake developments and borrow more than 60 per cent of their deposited property without a credit rating.37
In addition, the compulsory squeeze-out acquisition of minority unit holdings is also permissible under the BTA.38
An advantage of the business trust is that unitholders, like shareholders of limited liability companies, are entitled to limited liability notwithstanding any provision to the contrary in the trust deed of the business trust.39
However, business trusts do not enjoy the same favourable tax treatment offered to REITs. Another disadvantage of the business trust structure is that unitholders may have limited ability to ensure proper corporate governance, as a 75 per cent majority vote of all unitholders is required to remove a trustee manager40 and, in practice, the sponsor group often retains a significant holding of units sufficient to block any such vote. In contrast, the CIS Code requires the trust deed of REITs to provide that the manager may be removed by way of a resolution passed by a 50 per cent vote of unitholders present and voting at a general meeting.41
iv Stapled entity
A REIT may be stapled with a business trust under a stapling deed to form a stapled entity that issues stapled securities. The combined entity will be traded under one trading name, and the two different securities stapled together cannot be traded separately thereafter except in de-stapling events such as termination of the trust.
However, the REIT must have a sufficient nexus to the non-REIT entity with active operations that it will be stapled to. Such a nexus may be established so long as both are in the same industry or if the entity with active business operations is operating a business or providing a service ancillary to the assets held by the REIT.
Although the stapled structure is recognised by regulators as an allowable listing structure, the underlying securities retain the rights and obligations attached to each of the individual securities. For example, from a tax perspective, the REIT component of the stapled entity will be eligible for REIT-specific tax concessions, while the non-REIT component (i.e., the business trust) will continue to be taxed under normal tax rules.42
Stapled entities may appeal to investors who value the business and income diversification benefits brought about by such a combination. To a certain extent, the stapled structure combines the best of both a REIT and a business trust.
VCCs are recognised as corporate entities under the Variable Capital Companies Act 2018 (VCCA).
The VCC may take the form of a stand-alone fund or an umbrella fund with multiple sub-funds, in both instances they shall be regarded as a single legal entity. In the latter, economies of scale may be enjoyed as such structures allow common resources to be shared among multiple sub-funds.43
VCCs, unlike companies, are able to vary their capital without having to seek shareholders' approval.44 However, for tax purposes, VCCs shall be treated as a company and a single legal entity where they are able to enjoy the tax incentives for funds.
Unlike REITs, they are able to safeguard shareholders' liabilities given the sub-fund's assets and liabilities are ring-fenced.45 This limits shareholders' liabilities to their investments in the fund, as assets belonging to one sub-fund cannot be used to discharge the liabilities of another sub-fund belonging to the same umbrella VCC.
VCCs have demonstrated a steady and growing interest among investors. In response to the strong interest, the Monetary Authority of Singapore (MAS) is also reported to have widened the scope of permissible fund managers to allow single family offices to manage VCCs in Singapore, which may further attract family offices to set up a presence in Singapore, whether for real estate investments or otherwise.46
Real estate ownership
The Planning Act 1998 of Singapore is the primary legislation that provides the legal basis for land use planning and controls in Singapore. Pursuant to the Planning Act 1998 of Singapore, no person may develop land outside a conservation area without obtaining planning permission. Similarly, no person can subdivide land without first having obtained subdivision approval pursuant to the Planning Act 1998 of Singapore.
The statutory body responsible for carrying out such planning is the URA. The URA publishes a Master Plan every five years, which is a statutory land-use plan that will guide Singapore's development in the medium term (over the following 10–15 years). The Master Plan designates the zoning and permissible uses of land in Singapore. It is important to check the permissible use of a property prior to its acquisition to ensure that it is in line with the purchaser's intended use. In this regard, purchasers would typically conduct legal requisitions with the planning authority as to the land use zoning of the property.
Where a change of use of a particular premise is desired, an application will have to be made to the URA for permission. If the application is successful, a tax, known as a development charge,47 will be levied on the applicant if the proposed development project increases the value of the land. Development charge rates for commercial properties have decreased by 0.7 per cent on average while residential landed and residential non-landed properties have increased by 6.3 per cent and 10.9 per cent on average, respectively.48
JTC, which leases out most of the industrial land in Singapore, typically imposes environmental clean-up obligations on a lessee whose use of the land is potentially pollutive. If any such lessee wishes to assign its lease to a third party, JTC's consent is usually required. As part of its consent, JTC may require the lessee to conduct an environmental baseline study (to determine the extent of contamination of a particular site) and, if it deems it necessary, require the lessee to carry out an environmental clean-up before assignment of the lease.
Separately, under the Environmental Protection and Management Act 1999 of Singapore (EPMA), the occupier of any industrial or trade premises is required to maintain any fuel-burning equipment and any air pollution control equipment installed in or on the premises in an efficient condition, and ensure that such equipment is working in a proper and efficient manner. Failure to abide by these obligations would render the occupier guilty of an offence.49
Stamp duty is payable on the acquisition or disposal of immovable property situated in Singapore. The amount of stamp duty payable is computed on the purchase price or market value of the property, whichever is higher, and is payable within 14 days of the date of the instrument effecting the acquisition or disposal of the property (or, where the instrument is executed overseas, within 30 days of receipt of the instrument in Singapore). A penalty of up to four times the amount of unpaid duty can be imposed where there is a failure to pay this duty.
Where the property concerned is a residential property acquired on or after 20 February 2010 and is disposed of within four years of its acquisition, seller's stamp duty (SSD) may be applicable. However, for properties acquired on or after 11 March 2017, SSD is only payable where it is disposed of within three years of its acquisition.52 The amount of SSD payable varies according to the holding period.53 With effect from 12 January 2013, SSD is also payable on industrial properties acquired on or after that date and sold or disposed of within three years.54
Additional Conveyance Duties (ACD) were also introduced by the Singapore government to address the differential treatment in stamp duty between a direct acquisition or disposal of residential properties and an indirect acquisition or disposal of residential properties via a transfer of equity interest in a property holding entity (PHE).55 ACD for PHEs acquiring shares applies where the grantee is a significant owner of the entity immediately before the execution of the conveyance or becomes one upon the execution of the conveyance, and the entity is a PHE at the time of execution.56 ACD essentially becomes a de facto ABSD on the purchase of shares in these entities that have property-owning special purposes.57
iv Finance and security
The most common forms of security over real estate situated in Singapore are the mortgage and the charge.
A mortgage in Singapore operates like a charge where it creates a security interest in the property, but without an outright conveyance of the property itself. Where separate title for the property has been issued, the mortgage or charge must be registered with the Singapore Land Registry in the approved form. Where separate title for the property has not been issued, an assignment of the rights, title and interest under the relevant contract (for instance, a sale agreement) coupled with a mortgage-in-escrow is effected instead.
Other forms of security that are commonly taken over interests emanating from real estate situated in Singapore include an assignment of sale and rental proceeds, an assignment of insurances over property and debenture (fixed and floating charge over a company's assets).
Leases of business premises
In Singapore, the primary statutes governing leases are the Conveyancing and Law of Property Act 1886 of Singapore (CLPA) (in particular, Part III on leases), the LTA (in particular, Part IX on leases) and the Civil Law Act 1909 of Singapore.
The formalities that apply to leases in Singapore differ depending on whether the leased premises are registered or unregistered. Where registered land is concerned, Section 87 of the LTA provides that leases with a duration of over seven years may be registered with the Land Titles Registry (the Registry). However, in practice, not all leases with a duration of over seven years are registered at the Registry. This is because some landlords are unwilling to grant tenants registrable leasehold interests and, as such, prohibit them from registering their interests at the Registry.58 Where unregistered land is concerned, Section 53 of the CLPA provides that a lease with a duration of over seven years must be established by deed in the English language.
In land-scarce Singapore, the provisions of a typical Singapore lease of commercial premises tend to be extremely landlord-friendly, and unless the tenant has strong bargaining powers, it will be difficult to amend the provisions in the tenant's favour.
The main characteristics of a typical occupational lease of commercial premises in Singapore are as follows.
Generally, the term of the lease (or, where there is an option to renew, the aggregate term) will not exceed seven years. This is because, under the LTA, the Registrar will not be obliged to register a lease unless it exceeds seven years.59
ii Rent and rent increases
Since the implementation of the Control of Rent (Abolition) Act 2001 of Singapore,60 rents have been freely negotiated in Singapore.
A rent revision clause is almost invariably included in leases of commercial premises to ensure that the current market value of the demised premises is reflected. Where the lease is in respect of retail spaces in shopping malls, rent is usually pegged to a percentage of the tenant's monthly revenue.
In addition to the rent, the landlord may require the tenant to pay the service charges (for all outgoing costs and expenses in respect of the premises and the building).
Payment of a refundable security deposit (usually equivalent to two or three months' gross rent) is also common practice. The security deposit will usually be refunded to the tenant without interest after the expiration of the term and the delivery of vacant possession of the demised premises.
Where the tenant intends to carry out renovations or fitting-out works prior to taking possession of the premises, a refundable fitting-out deposit is also payable by the tenant.
iii Tenant liability and obligations
The usual obligations imposed on the tenant are generally to pay rent, to keep the premises in repair (fair wear and tear excepted), to permit the landlord to view the premises, and not to assign, sublet or part with possession of the premises without the consent of the landlord. In addition, the tenant is usually required to take out a public liability insurance policy (in the joint names of the landlord and tenant) with an insurance company approved by the landlord, at the tenant's sole cost and expense.
iv Covenants and conditions: compulsory acquisition
The LTA and CLPA provide for certain implied covenants and conditions in respect of a lease.
Where registered land is concerned, the landlord has the power to enter the premises and view the state of repair, and to require the lessee to repair any damage within a reasonable time.61 However, these statutory powers may be varied or negated by express provision in a particular lease. In addition, where the lease contains a non-assignment covenant, such a provision shall be deemed to be subject to a proviso that no fine or sum of money is payable for the landlord's consent, unless the lease contains an express provision to the contrary.62 Section 18 of the CLPA also qualifies the landlord's right of re-entry and forfeiture for a breach of covenant or condition of the lease in that the lessor is required to first serve on the lessee a notice specifying the breach and requiring the lessee to remedy the breach, if applicable.
Developments in practice
i Land Betterment Charge Bill
The Land Betterment Charge Act 202163 was passed in Parliament on 10 May 2021. This Act consolidates the enhancement of the value of the land under the existing development charge and temporary development levy payable to URA and the differential premium payable to the Singapore Land Authority. The land betterment charge is a charge on the increase in land value that results from a 'chargeable consent' given in relation to land. This chargeable consent refers to situations where there is planning permission or conservation permission in relation to land, the variation by the relevant authority of restrictive covenants in a state title or a concessional state title relating to land and the acceptance of a lodgement of any plans for a development of land deemed to be authorised without express written permission. The land betterment charge ensures that an appropriate amount or proportion of economic benefit that arises from the grant of rights to the use or development of the land is returned to the community. The money collected as land betterment charge can then be used to fund a wide range of infrastructure development and public programmes undertaken by the Singapore government.64
ii Code of Conduct for Leasing of Retail Premises in Singapore
The Fair Tenancy Pro Term Committee (FTIC), a committee set up by the Singapore Business Federation developed the Code of Conduct for Leasing of Retail Premises in Singapore (the Code of Conduct), which consists of a total of 11 key tenancy terms, applying to all commercial lease agreements for qualifying retail premises entered into on or after 1 June 2021. The Code of Conduct aims to serve as a mandatory guideline to enable landlords and tenants to have a fair and balanced position in negotiating the lease agreement.65 In addition to this objective, the Code of Conduct sets out mandatory requirements and areas of best practices to be complied with in a lease agreement. The FTIC also monitors compliance with the Code of Conduct during lease negotiations. In the event of any dispute regarding the non-compliance with the Code of Conduct after a lease agreement is signed, the matter may be escalated to the Singapore Mediation Centre, where both parties must attend the mediation sessions and comply with the resolutions of the Singapore Mediation Centre. Although abiding by the Code of Conduct is currently voluntary, many landlords have pledged their compliance with the Code of Conduct, and the FTIC has advised the Singapore government to recommend making compliance with the Code of Conduct mandatory via legislation.66
iii COVID-19 Act
The covid-19 pandemic has had a significant impact on the economy globally and in Singapore and, in response, the Singapore government enacted the COVID-19 (Temporary Measures) Act 202067 (the COVID-19 Act), which sought to provide temporary and targeted measures aimed at alleviating the unexpected pressures that the covid-19 pandemic has caused to businesses and individuals.
Briefly, the following areas in relation to real estate were covered under the COVID-19 Act.
iv Temporary relief from inability to perform contractual obligation68
Leases and licences of non-residential property69
The COVID-19 Act gives relief to tenants for their inability to perform contractual obligations (such as to pay rent) where the inability is, to a material extent, caused by the covid-19 pandemic.70 If the relevant conditions have been met and upon service of a notification for relief, the tenant will be temporarily relieved from performing those obligations for a prescribed period. The tenant's obligations are not waived by the COVID-19 Act, and will continue to accrue.
Options to purchase and sale and purchase agreements with housing, commercial and industrial developers71
Similarly, to address the concerns of purchasers who had entered into purchase contracts but had difficulties making payments and stood to lose their booking fees or deposits as a result, relief is given to purchasers under such contracts for their inability to perform contractual obligations (such as to pay deposits or progress payments) where the inability is, to a material extent, caused by the covid-19 pandemic.72 If the relevant conditions have been met and upon service of a notification for relief, the purchaser or intending purchaser will be temporarily relieved from performing those obligations for a prescribed period. However, such relief does not extend any option or time periods under the contract, and payment obligations continue to accrue during the prescribed period and may be enforced after the prescribed period.
Rental relief framework for small and medium enterprises and non-profit organisations
The COVID-19 Act offers a rental relief framework for small and medium enterprises and specified non-profit organisations.73 This provides for mandated equitable co-sharing of rental obligations between the government, landlords and tenants, where such tenant-occupiers who satisfy the prescribed criteria74 may receive rental waivers of varying periods.
Additionally, the Singapore government has provided temporarily relief measures for property developers75 in view of disruptions to construction timelines and sales of housing units resulting from the covid-19 pandemic.76
Broadly, the measures include the following:
- extension of the Project Completion Period (PCP) by 18 months for residential, commercial and industrial development projects;
- extension of 18 months for the commencement and completion of residential development, and sale of housing units in residential development projects in relation to the remission of ABSD for housing developers; and
- extension of the PCP period by up to a total of 18 months for residential development projects under the Qualifying Certificate regime for foreign housing developers.
Furthermore, the new Part 8C of the COVID-19 Act77 allows developers to extend the delivery date in sale and purchase agreements for a period of 122 days and a further extension as certified by an assessor under the COVID-19 Act without having to pay liquidated damages for the extension. Part 8C of the COVID-19 Act also allows purchasers to seek reimbursement for qualifying costs incurred due to the extension of delivery date.
Outlook and conclusions
While Singapore's property market managed to remain relatively stable, it has definitively not been spared from the effects of the covid-19 pandemic. With companies implementing work-from-home arrangements and lower demand for physical retail shopping pushing retailers to online marketing, demand for commercial and office and retail spaces might see a fall in demand as many get used to this 'new normal'. Nevertheless, with the opening up of borders and normalisation of coronavirus (covid-19), it is hoped that Singapore remains an attractive option for both investors and travellers to bolster the property and retail leasing market.
1 Jennifer Chia is a partner, Brenda Chow is a senior associate, and Lau Tin Yi and Teo Li Hui are associates at TSMP Law Corporation.
2 Tan Sook Yee, Tang Hang Wu and Kelvin FK Low, Tan Sook Yee's Principles of Singapore Land Law, 3rd Edition (Singapore, LexisNexis), p. 12.
3 Such estates are rare in Singapore.
5 Section 11(5), SLA.
7 Urban Redevelopment Authority of Singapore, 'Release of 3rd Quarter 2021 real estate statistics': https://www.ura.gov.sg/Corporate/Media-Room/Media-Releases/pr21-44.
10 Under Section 2(1), RPA, a foreign person means any person who is not a citizen of Singapore, a Singapore company, a Singapore limited liability partnership or a Singapore society.
11 Under the RPA, restricted residential property includes vacant land, landed housing and land meant for residential purposes, but excludes flats in buildings and units in condominiums as long as they do not comprise all the flats in the building or units in the condominium; and estate or interest in any development for a term not exceeding seven years, inclusive of any further term that may be granted by way of an option for renewal.
12 Sections 3 and 25, RPA.
13 Under Section 2(1), RPA, a foreign person includes a person that is not a Singapore company, and a Singapore company is defined as a company that is incorporated in Singapore and whose directors and members are all Singapore citizens.
14 Section 25(7), RPA.
15 Inland Revenue Authority of Singapore, 'Additional Buyer's Stamp Duty': https://www.iras.gov.sg/taxes/stamp-duty/for-property/buying-or-acquiring-property/additional-buyer's-stamp-duty-(absd).
16 The Straits Times, 'Singapore property analysts turn bullish, predict 5-10 per cent price gain by end-2018' (18 September 2017): www.straitstimes.com/business/property/singapore-property-analysts-turn-bullish-predict-5-10-price-gain-by-end-2018.
17 The exclusions applicable to restricted residential property do not apply to residential property.
18 Under Section 2(1), RPA, a dwelling house includes a building or tenement for human habitation.
19 Section 31(3), RPA.
20 Section 31(3)(c), RPA.
22 Section 33(e), RPA.
23 Section 19(5), CA.
25 Section 23(2), CA.
26 Part XIII of the Securities and Futures Act 2001 of Singapore; the Code of Collective Investment Schemes (the CIS Code), first published by the Monetary Authority of Singapore (MAS) in 2002 (and last revised by the MAS on 1 July 2021); and the Singapore Code on Takeovers and Mergers of Singapore (the Takeover Code), first published by the MAS in 2002 (and last revised by the MAS on 24 January 2019).
27 The conditions to be satisfied are as follows: (1) the additional allowance of up to 15 per cent of the property fund's deposited property is utilised solely for the redevelopment of an existing property that has been held by the property fund for at least three years and that the property fund will continue to hold for at least three years after the completion of the redevelopment; and (2) the property fund obtains the specific approval of the participants' at a general meeting on the redevelopment of the property.
28 CIS Code at Appendix 6, Paragraph 7.1.
29 CIS Code, at Appendix 6, Paragraph 9.2.
30 As of 1 July 2018, Exchange Traded Funds (ETFs) invested in Listed REITS have also been granted tax transparency treatment, to ensure parity between investors of Listed REITs and ETFs.
31 IRAS, 'IRAS e-Tax Guide – Income Tax Treatment of Real Estate Investment Trusts and Approved Sub-Trusts (Eighth Edition)' (17 November 2021), at Paragraph 5.3.
32 ibid., at Paragraph 8.
33 ibid., at Paragraph 7.1.
34 Lee Suet Fern and Linda Esther Foo, 'Real Estate Investment Trusts in Singapore – Recent Legal and Regulatory Developments and the Case for Corporatisation' (2010) 22 SAcLJ 36 at 62 and 63.
35 Takeover Code at p. 3.
36 Section 6, BTA.
37 The Schedule, BTA.
38 Section 40A, BTA.
39 Section 32, BTA.
40 Section 20, BTA.
41 CIS Code at Appendix 6, Paragraph 4.1(a).
42 Stoscheck, Stefano Simontacchi and Fabrizio Acerbis, Guide to Global Real Estate Investment Trusts (The Netherlands: Kluwer Law International, 2011) at 6 (Singapore); see footnote 50.
43 Singapore Parliamentary Report (2018, October 1), Vol. 94, page 2, https://sprs.parl.gov.sg/search/sprs3topic?reportid=bill-19.
46 Genevieve Cua, 'Plan to tweak VCC framework to draw more single family offices' (7 December 2020): https://www.businesstimes.com.sg/banking-finance/plan-to-tweak-vcc-framework-to-draw-more-single-family-offices.
47 The Development Charge will be replaced by the Land Betterment Charge pursuant to the Land Betterment Charge Act 2021.
48 Urban Redevelopment Authority, 'Revision of Development Charge Rates' (31 August 2021): https://www.ura.gov.sg/Corporate/Media-Room/Media-Releases/pr21-30.
49 Section 10, EPMA.
50 With effect from 20 February 2018, BSD is calculated as follows: the first S$180,000 – 1 per cent; the next S$180,000 – 2 per cent; the next S$640,000 – 3 per cent; and the remainder – 3 per cent for non-residential properties and 4 per cent for residential properties.
51 With effect from 16 December 2021, a purchaser that is a Singaporean citizen is required to pay ABSD at a rate of 17 per cent when purchasing or acquiring a second residential property, and ABSD at a rate of 25 per cent when purchasing or acquiring a third residential property. A foreign person who is an individual is required to pay ABSD at a rate of 30 per cent when purchasing or acquiring any residential property. A non-individual (i.e., a corporate entity), is required to pay ABSD at a rate of 35 per cent on the purchase or acquisition of any residential property. A housing developer is required to pay ABSD at a rate of 40 per cent on the purchase or acquisition of any residential property.
52 IRAS, 'Seller's Stamp Duty for Residential Property': https://www.iras.gov.sg/irashome/Other-Taxes/Stamp-Duty-for-Property/Working-out-your-Stamp-Duty/Selling-or-Disposing-Property/Seller-s-Stamp-Duty--SSD--for-Residential-Property/.
53 To ensure that the seller has duly paid the SSD, the purchaser may request a copy of the stamp certificate from the seller's lawyer as proof that SSD has been paid. All sellers of residential and industrial properties are also required to complete a seller's stamp duty declaration form when disposing of the property.
54 IRAS, 'Seller's Stamp Duty (SSD) for Industrial Property': https://www.iras.gov.sg/irashome/Other-Taxes/Stamp-Duty-for-Property/Working-out-your-Stamp-Duty/Selling-or-Disposing-Property/Seller-s-Stamp-Duty--SSD--for-Industrial-Property/.
55 IRAS, 'IRAS e-Tax Guide Stamp Duty: Additional Conveyance Duties on Property-Holding Entities' (Third Edition) (5 July 2018) at Paragraph 2.1.
56 Stamp Duties Act 1929, Section 23(2).
57 The Business Times, 'Time to rethink investment in residential property' (31 March 2017): www.businesstimes.com.sg/hub-projects/property-march-2017/time-to-rethink-investment-in-residential-property.
58 Such prohibitions are typically contractual and provided for in the lease agreement.
59 Section 87, LTA.
60 No. 14 of 2001, Sing.
61 Section 93 of the LTA.
62 Section 17 of the CLPA.
63 The Land Betterment Charge Bill was passed in Parliament on 10 May 2021 but is not yet in force.
64 Ministry of Law, 'Second Reading Speech by Second Minister for Law, Mr Edwin Tong, on the Land Betterment Charge Bill' (10 May 2021): https://www.mlaw.gov.sg/news/parliamentary-speeches/2021-05-10-second-reading-speech-by-2m-edwin-tong-on-land-betterment-charge-bill.
65 Singapore Business Federation, 'Code of Conduct for Leasing of Retail Premises in Singapore': https://www.sbf.org.sg/images/Code_of_Conduct_for_Leasing_of_Retail_Premises.pdf.
66 FTIC, 'Landlords in compliance with the Code of Conduct': https://www.ftic.org.sg/landlords-in-compliance-with-the-code-of-conduct/.
67 COVID-19 (Temporary Measures) Act 2020 (No. 14 of 2020, Sing) as occasionally amended.
68 Part 2 of the COVID-19 Act.
69 1(h) of the First Schedule of the COVID-19 Act, and such contracts must be entered into or renewed before 25 March 2020 with the contractual performance due on or after 1 February 2020.
70 Section 5(1) of the COVID-19 Act.
71 1(i), (j), (k) and (l) of the Schedule of the COVID-19 Act, and such contracts must have been entered into before 25 March 2020 with the contractual performance due on or after 1 February 2020.
72 Section 5(1) of the COVID-19 Act.
73 Part 2A of the COVID-19 Act, which came into force on 31 July 2020.
74 COVID-19 (Temporary Measures) (Rental and Related Measures) Regulations 2020, COVID-19 (Temporary Measures) (Rental Waiver Due to COVID-19 Event In 2021) Regulations 2021.
75 The temporary relief measures were first announced on 6 May 2020 (https://www.mlaw.gov.sg/news/press-releases/temporary-relief-measures-for-property-sector-due-to-covid-19-pandemic), and additional temporary relief measures were announced on 8 October 2020 (https://www.mlaw.gov.sg/news/press-releases/2020-10-08-additional-temporary-relief-measures-for-property-sector-due-to-covid19).
76 Where timelines and sales have been impacted by manpower shortages and the suspension of work at construction sites, operations at housing developers' sales galleries and home viewings.
77 Part 8C of the COVID-19 Act came into force on 1 July 2021.