JOINT TENANCY IN SINGAPORE: ISSUES AND FATWA
Luqman Hj. Abdullah, Muhammad Ikhlas Rosele, Abdul Karim Ali, Noor Naemah Abdul Rahman, Ashraf Md. Hashim & Nor Fahimah Mohd Razif.
Department of Fiqh and Usul, Academy of Islamic Studies, University of Malaya, 50603 Kuala Lumpur
Abstract.
Under joint tenancy law in Singaporeall the owners have an equal share in the flat. However, in the event of a demise of any joint owner,the right of survivorship applies andhis interest in the flat would automatically be passed on to the remaining co-owners.This is regardless of whether the deceased joint owner has left behind a Will. For the Muslims in Singapore this will contradict the Islamic law of succession. To resolve the problem faced by the Muslim’s community in Singapore MUIS has issued a fatwa which suggesting to adopt hibah nuzriah and hibah ruqba. This paper is to study this development in Singapore.
Keywords: Property, Islamic economy, ownership, joint tenancy, Singapore
INTRODUCTION
Joint tenancy is a contract of ownership toward asset (eg: house) between two or more owners. In other words, the asset has a mutual interest without looking at the amount of contribution in the financing of the asset. It is understandable that each owner is a full owner of the asset. Therefore, the ownership of the asset in this context will be transferred to the surviving owner in the event of death (Tan, 2001). The joint tenancy contract is different from the tenancy in common contract that also practiced in Singapore. Tenancy in common is an ownership of the house where the owner will share the assets according to the paid portion. Each owner of this contract is eligible to circumvent or sell the asset and it does not automatically transfer to the surviving owner in the event of death. However, this concept is seen to have no significant effect in legal discussions in contrast to joint tenancy contract. However, for the joint tenancy there are issues from Islamic law perspective since its ignore the rights of the heirs in the case of the death the owner It works like this (Rasban, 2015):
1. All owners have the same interest to the property with full possession authority.
2. The amount of the payment to the asset does not determine the ownership of the asset.
3. Having a "right of survivorship." When one of the owners dies the interest of the deceased is considered non-existent and will shift to the surviving owner
4. The joint tenancy contract may be changed to tenancy-in-common ownership or terminated by the will of one of the owners. When that happens, the right of survivorship will be abolished
5. One of the owners cannot sell the assets individually
6. The family members of the owner shall not be entitled to the property by other ways such as the mawarith (inheritance) and wasiyyah (bequeathal) after the death of one of the owners
In Islamic law when a person dies his property will be distributed to the heirs after paying debt, bequeathal and mortgage management expenses. This however does not apply in the joint tenancy contract thus it raises a question among Muslim community in Singapore.
In joint-tenancy, there is a right of survivorship which effect is upon the death of a joint-tenant, his interest in the flat will automatically be passed to the remaining co-owner(s), regardless of whether the deceased joint-tenant has left behind a Will. "Right of Survivorship" in the law is an important aspect to determine the ownership of assets in Singapore. Since this is against Islamic Law Islamic Religious Council of Singapore (MUIS) do not recognize this concept. According to Islamic principles the property need to be distributed based on Islamic succession law. As a solution MUIS has issued a fatwa suggesting that (AMLA, Chp 3Sec 32, 2008):
1- the survivors are given 50% of the home's value based on the concept of syarikah al-milk.
2- if the owner intends to give their share to the surviving co-owners should do the proper hibah ruqba or nuzriyah contract during their life time. This will certainly establish a clear intention of the parties (legal heirs) concerned.
The objectives of this study is to analyze the fatwa of MUIS regarding this because hibah ruqba and nuzriyah concept are debatable concept in Islamic law.
METHODOLOGY
This study is qualitative in nature adopting documentation analysis and interview method. The interview had been conducted with related parties in Singapore such as MUIS and HTHT advisory. This interviews support us in term of the real issue facing the Muslim minority in Singapore and it also gave the background basis of the fatwa on nuzriyah and hibah ruqba. The data had been analyzed using mix method of qualitative study; inductive, deductive and comparative.
RESULTS AND DISCUSSIONS
Hibah literally means a gift, but in general, it means awarding a person something without consideration (Khalil, 1981). The Maliki’s define hibah as giving ownership by those who are entitled for donating things that are approved by shariah without counter value to those who are entitled to receive with the language or any that shows it (Lahsasna, 2014).
However, hibah discussions in this context are hibah ruqba and hibah nuzriyyah that are referred in Singapore's fatwa. In spite of in the Islamic law, these two forms of hibah became a dispute among scholars. The hibahruqba is a situation when a person gives his home as a hibah ruqba to another person, in which the home is given to the grantee in his lifetime, and if he dies earlier than the grantor, the property will be returned to the giver (Rahman, 2012).
According to Nasru lHisyam (2012) study on the hibah ruqba contract, he concludes nthat;
1- Ruqba is a perfect gift to the recipients not just as a benefits gift.
2- Rules of ruju' (return) in hibah ruqba after grant recipient death is not applicable.
3- Mawhub (the hibah property) will be the property of the grantee throughout his life and will be inherited by his heirs.
Hibah nuzriyyah also does not have clear justification in Islamic law. Nuzriyah comes from the word ‘nazar’ – a vow to God. Nuzriyah is a vow which is not associated with either conditions or time and it can be executed later. In Singapore, it is used as a mean of wealth transfer. A vow is revocable without the need for consent from anyone. It can take effect before or after death and be for the benefit of legal or non-legal heirs with no constraint on the quantum. For example, for a man intending to give all of his estate to his daughters, MUIS would recommend to him to use nuzriyah.
The study found that even the nuzriyah and hibah ruqba are controversial from fiqh perspective but the situation of Muslims in Singapore which governed by CLPA of Singapore give a necessity basis for the survival of the Muslims community in Singapore. On the suggestion of using nuzriyah MUIS assert that:
A nuzriah made to ensure the well-being of another party after a person’s death is permissible in Islam. For example: Someone who makes nuzriah to give his house to his wife so that the house will not be sold and distributed among his legal beneficiaries. The Nuzriah is permissible in Islam if it is made with the intention that his wife will still have a house after his death.
Similar issue arises in the aspect of the hibah ruqba, when MUIS had recognized the contract has a clear conflict in Islamic law but through local considerations and maslahah they have chosen minority views to justify it. This is clearly mentioned in MUIS [4] statement;
Jurists have different views on hibahyruqba, and it is a matter of Ijtihad among the scholars. However, an old opinion from the Shafie School of fiqh accepts both the agreement (‘aqd) of hibahyruqba and the condition stated therein as valid.
Thus, joint tenancy's transfers in Singapore can be done in accordance with the civil law through the earlier planning of property from the owner. This is what was recognized in the fatwa of MUIS. Property owners should make hibah ruqba or hibah nuzriyah contract to ensure the transfer of the property in line to the sharia-compliant basis.
ACKNOWLEDGEMENT
We would like to acknowledge the financial support provided by University Malaya and INCEIF via UM-INCEIF research grantMO010-2017.
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