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RHTLaw Taylor Wessing’s Deputy Head of Real Estate Sandra Han shares her views in The Straits Times on the differences between the terms lessee, tenant, and owner and how it applies to HDB flat owners.
The article was first published in The Straits Times on 21 August 2017.
HDB flat buyers – owners or lessees? Debate goes beyond semantics
Source: The Straits Times © Singapore Press Holdings Ltd.
Date: 21 August 2017
Author: Ng Jun Sen
Lessee. Tenant. Owner.
When it comes to Housing Board flats, these plain terms seem to befuddle many.
What exactly should an HDB flat buyer be known as? Over the past two months, this discussion has been playing out in The Straits Times’ Forum pages and online.
Clearly, flat buyers are flat owners, with the right to sell, rent and renovate, within guidelines and for the tenure of their lease, said the HDB.
But some people seized on the qualifiers – for the length of the lease. Does that not mean that a more accurate term for HDB flat owners is “lessees”, they wonder.
It also did not help that some HDB webpages and documents refer to flat buyers as “lessees” and the HDB as “lessor”.
This is not just a tussle over semantics. It goes to the heart of a longstanding debate over whether HDB flat owners can be called that when they have to return their homes to the state when their leases expire, and when rules over what they can or cannot do with their homes are generally more circumscribed than those for owners of private leasehold property.
The question first arose on June 24 when a reader, Mr Larry Leong, wrote in to query the HDB on the terms it apparently used to refer to him. “While applying to rent out my HDB flat, I noticed that the Housing Board referred to me as a ‘tenant’, and my potential tenant as a ‘sub-tenant’,” said Mr Leong, adding that he had paid for his flat fully.
“Can we have some clarity on whether HDB dwellers are tenants or real home owners for 99 years?”
In its reply three weeks later, the HDB clarified that the term “tenants” refers only to those who rent public rental flats from it.
Purchasers of HDB flats are owners of their property, its director of branch operations Lim Lea Lea stated categorically.
She said: “Flat owners enjoy rights to exclusive possession of the flat during the tenure of the flat lease. They can sell, let out and renovate their flats, within the guidelines specified in the lease and Housing and Development Act.”
The board also said “the name of each HDB flat owner is reflected in the title deed, the original of which is kept with the Singapore Land Authority, as part of the central and comprehensive record for all properties in Singapore. This confirms his or her ownership of the property.”
But others remained unsure.
Mr Andrew Seow Chwee Guan wrote in a letter dated July 20 that a duplicate lease of an HDB flat he holds “was executed by me and my spouse many years ago as a lessee in the presence of a lessor – an HDB representative”.
He added: “My understanding is that HDB purchasers are lessees and the HDB is the lessor.
“There is a distinct difference between owners and lessees.”
In its latest reply published on Aug 14, the HDB said the leasehold system allows the land to be recycled and redeveloped, and is common around the world. It reiterated that leasehold property buyers are owners too, albeit for the length of the lease they hold.
“During this period of ownership, they can decide to live in the flat, renovate it, rent it out or even sell it once they meet the eligibility conditions. They can decide on the selling price or rental rate of the flat, and they get to keep the proceeds from these transactions.
“These are rights and benefits that only a flat owner can enjoy.”
However, experts have also pointed out that, unlike private property owners, HDB flat buyers cannot initiate collective sales of their homes, unless picked under the Selective En Bloc Redevelopment Scheme. On the flip side, HDB flat buyers are entitled to more benefits, including subsidised prices.
Given the way the terms owner and lessee seem to be used interchangeably at times, should HDB then change its nomenclature for a buyer to “lessee” to avoid misunderstandings?
Some argue that the term “owner” implies a person has possession of the property in perpetuity. They are in favour of the term “lessee”, which they say states clearly that there is a lifespan to the possession of the property.
“Lessee” is a more precise term, say property lawyers such as Ms Sandra Han of RHTLaw Taylor Wessing, though the word “owner” is still accurate.
Acknowledging that the topic is “quite tricky”, she added: “The term ‘owner’ is quite nebulous and is used very generally.”
Ms Tay Huey Ying, head of research and consultancy at property consultancy JLL Singapore, said ownership is typically implied for long-term leases of, say, more than 60 years.
At any rate, the Government will likely not be keen to give up the use of the term, say real estate watchers like Mr Nicholas Mak, head of research and consultancy at ZACD Group. The word “owner” connotes rootedness and identity, unlike “lessee”, and this is why the authorities would prefer to stick to the earlier term, he said.
“In referring to buyers as owners, it is a case of HDB trying to have its cake and eat it too,” he said.
Ms Tay said it is more fruitful for the debate to focus on raising awareness of lease expiry.
In fact, she said “ownership” has the advantage of allowing residents to feel that they have a stake in society and want to contribute actively to the country.
“With some leases running down, what is more important is to educate purchasers on what leasehold means,” she said.