Evicting Family Members From Your Property in Singapore
When it comes to living together with family members and loved ones, things can oftentimes get messy. It is a reality of life. Despite the presence of family ties, it is understandable and not unreasonable to eventually conclude that living apart might be the better option and in the best interests of all involved.
In some cases, such steps may have to be taken out of necessity and to protect oneself or the other members of the family. In all such cases, however, it is important to anticipate that the family member asked to leave the property will not agree nor willingly move out. What can be done then?
In this article, we will set out to address some common scenarios in Singapore where one might have no alternative but to take steps to evict a family member from the property, such as:
Before going further, it would be helpful to consider as a starting point whether that family member has any ownership or interest in the property (e.g. whether the family member is a joint tenant or tenant-in-common of the property).
If so, this may, on the face of it, entitle that family member to certain rights or entitlements in respect of the property. However, there may be exceptional circumstances to this, which we will deal with further below.
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Evicting a Spouse in the Case of Divorce (Commenced and/or Concluded)
In most marriages, it is likely that the spouses would have some ownership or interest in the property. In the absence of any other private written agreement between the parties or documentary evidence that reflects some other arrangement, it is reasonable to assume that both spouses would have the right to remain on the property because of their ownership.
As a result, where the spouses are co-owners, whether by a joint tenancy or tenancy-in-common, one spouse may not ordinarily evict the other as both have a right to remain on the property.
Even in the case where the property is registered in the name of only one spouse (A) during the course of the marriage, it could be argued that the other spouse (B) nonetheless has some equitable interest in the property so as to keep bound by such interests. It would then be argued that A should not be able to evict B.
However, as this may include a consideration of other (more complex) principles on the law of trusts and equity, it would be best to consult a lawyer on these further issues if they seem to be applicable to your case.
In Singapore, the commencement of divorce proceedings itself does not immediately entitle either party to evict the other from the property. The ordinary rules of property law and ownership continue to apply when the marriage still subsists, as explained above.
If a spouse is abusive however, then the other party may consider filing a Domestic Exclusion Order when commencing divorce proceedings to exclude the abusive spouse from the property (as will be explained below).
In addition, when the court exercises its powers to divide the matrimonial assets in the course of matrimonial/divorce proceedings, this may have the effect of changing the ownership rights between parties such that one party is no longer entitled to stay in the property.
For instance, if full ownership of the property is to be transferred to one particular spouse (A) by way of a court order upon division of the matrimonial assets, this would potentially have the effect of giving A the right to full occupation and usage of the property, with the accompanying right to have his/her spouse leave the property.
This could be done by seeking an enforcement of the court order that made this division (which may also include a notice for a penalty for the failure to comply with such court order). One may also consider the commencement of legal proceedings with a claim for possession of the property.
Evicting Children From Property
Where the situation potentially involves evicting a child, the primary consideration would be one of whether that child is a minor and requires the provision of lodging and accommodation as part of the welfare provisions of children under the law.
The main statutes relating to children include the Guardianship of Infants Act (GIA), the Women’s Charter (WC), and the Children and Young Persons Act (CYPA).
Under the WC, a child is defined as an individual being below the age of 21. In this regard, the WC expresses at section 68 the principle that parents have a responsibility to maintain a child whether or not that child lives with him/her.
Further, section 3 of the GIA states that the welfare of an infant (or individual below the age of 21) is the first and most important consideration in any court proceedings relating to the upbringing of that infant (amongst other things).
Reading all this together with other supporting legislation that clearly offers protection and provision for the welfare of children, such as the GIA and the CYPA, it would be argued that parents do have a responsibility to provide their minor children with such proper lodging and accommodation.
In other words, all the above strongly indicates that it is unlikely that one can evict a child under the age of 21, as this would be considered as acting against the welfare of the child and depriving that child of lodging or accommodation (subject to the applicability of the other categories below).
Evicting Abusive Family Members From Property
Sadly, this is a more common scenario than most people would imagine. In such cases, the interests, protection and safety of a victimised (or potentially victimised) family member(s) would certainly be a foremost consideration.
In such a scenario, section 65 of the WC states that a court may grant the “right of exclusive occupation” for the whole or part of a shared residence upon application of a party.
This means that a party is given the right to occupy that particular property exclusively, and to keep someone else out (i.e. the other party). This is regardless of whether the shared residence is solely or jointly owned, or leased, by the party against whom the application is being made (in this case, the abuser).
This power is exercised when one makes an application for a Personal Protection Order /Domestic Exclusion Order (DEO). A DEO is an order that gives a family member the right to exclude the other party/family member from the property under certain circumstances. It is typically granted only if the court is satisfied on balance that it is “necessary for the protection or personal safety” of the party who applied for it.
A DEO may also be applied for together with the commencement of divorce proceedings if necessary. However, it is important to note as well that the DEO may be made only against a “family member”, who are defined as the following:
- A spouse or former spouse of the person;
- A child of the person, including an adopted child and a step-child;
- A father or mother of the person;
- A father-in-law or mother-in-law of the person;
- A brother or sister of the person; or
- Any other relative of the person or an incapacitated person who in the opinion of the court should, in the circumstances, in either case be regarded as a member of the family of the person.
The application may be made by way of issuing a summons, accompanied by supporting details and information as to why the application is necessary.
In addition to law firms/lawyers, there are various agencies that are able to assist you with such applications. The family justice system is also designed to enable you to make the application without significant legal assistance in a straight-forward case.
However, where you are uncertain or have a complex case scenario, it would be best to consult a lawyer for a further opinion. Further helpful information may also be found on the Family Justice Courts’ website.
Evicting a Family Member Who is Paying Rent
If a family member is paying rent and has been given exclusive possession of the property or any part of it, it might be possible for you to argue that there is a tenancy in operation and that the family member is therefore considered a tenant. This may possibly be raised as an argument even if there is no written tenancy agreement between the parties.
In such a situation, that family member may be evicted in the same manner as any other tenant. In order to do so, the circumstances should present the right reasons or basis for eviction or termination of the tenancy. Typically, as a landlord, you should provide notice of the breach of tenancy and offer an opportunity for the tenant to rectify such breach if possible before you take further action.
For instance, section 18 of the Conveyancing and Law of Property Act states that a landlord should give the tenant notice that a breach has taken place (for example, failure to pay rent) and require the tenant to correct the breach within a reasonable period of time. The correction of the breach would in some cases depend on whether the breach can be corrected or compensated with money in the first place.
If there is no resolution to this attempt to resolve the problem, one may then consider making an application to re-enter and repossess the property, and thereafter seek an eviction of the tenant/family member by issuing a writ of possession. A re-entry and repossession may still be possible even if the tenant/family member has exclusive occupation of one part of the property (for example, if the family member is paying to stay in a particular room in the property).
Evicting a Family Member Who is Not an Owner of the Property
Where a family member is not an owner of the property, there may be little immediate or obvious reasons as to why he/she could argue that they have a right to occupy and use the premises (and not be evicted).
In the case of public housing (i.e. HDB flats) however, it is relevant to note that there is a category of persons known as the essential occupier/occupier. Such an occupier of the property does not immediately have legal interests in the property in the way that a legal owner/co-owner would. However, depending on the facts of the case, it might be possible to argue that he/she has some kind of equitable interest in the property so as to have a reason to remain on the premises.
For instance, if an essential occupier can show direct financial contribution to the purchase of the property, this may under the right circumstances form the basis to argue that there is a trust in operation that gives the contributing party equitable interests in the property, such that they have a reason to remain on the premises.
There are many different ways in which such similar arguments could arise. If so, this would involve a consideration of more complex, complicated legal principles and concepts such as constructive or resulting trusts and proprietary estoppel, amongst others.
If you believe that your case involves such a situation, it is strongly advisable that you seek the input of a lawyer to gain some perspective before proceeding further.
The circumstances leading to someone considering eviction of a family member can be as complicated and messy as family relationships themselves. It is never an easy step to take, and it is important to therefore ensure that one’s rights, as well as responsibilities towards that family member, are properly considered before such drastic action is taken.
The above is meant to simply provide a broad overview and guide you as to some common situations that may arise. However, it is certainly advisable for you to bring your matter to a lawyer for full and complete legal advice so that you may proceed with the confidence that you are doing so within your rights and entitlements as an owner of the property.
This article was written by Jonathan Cho.
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