O
n this Yuan Xiao Jie (first full moon of the first lunar month) of this Chinese New Year of the Ox, the Appellate Court ruled against the Minority Dissenters of Gillman Heights with Appellate Court costs borne by the respective litigants and 50% of the High Court costs borne by the Minority Dissenters.
This group of Minority Dissenters stood united in their valiant bid to save their homes as they dug into their pockets which are not deep by general standards to challenge the very law itself, pitting themselves against the big-boy developer-buyers and the all-mighty lawmaking food chain in this David versus Goliath clash. In the end, the Minority Dissenters lost. Another estate bites the dust.
1. Background. Gillman Heights was completed in 1984 - that was when the first occupants moved in. It was a HUDC estate at that time and was governed by rules and regulations akin to that of public housing administered by the Housing & Development Board (HDB). Gillman Heights - together with another HUDC estate known as Pine Grove - were the pioneers in privatizing their estate in 1995/96. In the process of privatization, Gillman Heights owners carried out some essential works to fall within the qualifying criteria and also some upgrading works a few years later. The CSC for Gillman Heights was issued only in 2002. In the en bloc process, Gillman Heights achieved about 87% majority consent, contracted to sell to a developer-buyer at $548mn and applied to the Strata Titles Boards (STB) for a collective sale order in 2007.
2. Points of contention and ruling at Appellate Court level. The Gillman Heights Minority Dissenters challenged:
(a) Whether the 1999 Land Titles (Strata) Act (LTSA) (ie, prior to the specific amendments in 2007 relating to privatised ex-HUDC estates) applied to Gillman Heights which was a HUDC estate before it was privatised; and
(b) If the 1999 LTSA applied, then whether the date of issuance of Temporary Occupation Permit (TOP) or Certificate of Statutory Completion (CSC) would apply to Gillman Heights who obtained their CSC only in 2002 (although physical completion of this estate was in 1984) and therefore would require 90% consent level for an estate of less than the 10-year-old cut-off point (instead of 80% consent level for an estate that is 10 years or more in age).
Three years
(!!!) after the Collective Sale Agreement was signed by the first of the Majority Consenters on 18 Feb 2006, the Appellate Court ruled on 9 Feb 2009 that the "purposive" element of LTSA prevailed in terms of the
estate's physical age and the availability-for-en-bloc clock started ticking from the date of completion of Gillman Heights in 1984. In fairness, the Appellate Court acknowledged that Minority Dissenters' points about the 1999 LTSA and the 2007 amendments with specific provisions for ex-HUDC developments but the Appellate Court attributed these to "faulty or inappropriate drafting" in the 1999 LTSA. Hence, the parliamentary intention underpinning this piece of legislation could not be frustrated by a literal interpretation of the law.
3. "Purposive" purpose. Laws are in black-and-white. Every word, every comma counts. Or does it?
In this connection, let me share a little New Zealand joke. New Zealand's national symbol is the Kiwi bird. Hence, New Zealanders
are also called Kiwis. Through the ages, the Kiwi bird has evolved to its present-day flightless state. This bird eats ground vegetation (eg, underground roots, little plant shoots, fallen leaves) and it also predates on worms, eels, amphibians, crayfishes, etc.
In New Zealand, they say the following:
(a) About the bird -
A Kiwi eats shoots and leaves.
(b) About some New Zealander men -
A Kiwi eats, shoots and leaves.
Add a comma between "eats" and "shoots" and the sentence transforms into a manifestation of the Darwinian Theory of Evolution:
- of self-preservation (eg, by eating),
- of procreation (ie, by seminal shooting), and
- of survival of the fittest (viz, by beating a quick exit and leaving to find another lady bird for more seminal shots to increase their gene pool)!
What is the purpose of eating shoots and leaves? We need not fly to New Zealand to ask this flightless bird as it could be found on the tin cover of a popular shoe polish brand.
What is the purpose of putting a comma between "eats" and "shoots"? We could ask a teacher of English language. Or we could ask Singapore legal practitioners who usually have a mastery over the English language on how they would interpret this comma - whether as a lawyer in explaining these words, or as a draftsman in drafting the sentence or as a judicial member in reading the final sentence. But, of course, there is this thing about being "purposive", eh?
4. Purpose of "purposive". I am probably getting my left foot entangled with my right hand by flipping "purpose" and "purposive" from the previous paragraph sub-heading. But I would like to put into context the purpose of being "purposive".
From parliamentary debates and public comments by ministers and civil servants in enacting LTSA, the purpose of en blocs is for urban renewal and higher land-use intensity in respect of private strata-title developments.
Singapore is so teeny. We have stacked upwards, tunnelled downwards, filled-up and topped-up to the north, south, east and west. With the latest population target of 6.5mn people on 700-odd sq km, what more could we do to create space for all of us to work, play, live and shit in inverse order of priority?
In the process of achieving our national agenda of urban renewal and increasing land-use intensity, the land value of these strata-title developments would be unlocked as a natural consequence. Here's a thorny question - UNLOCKED FOR WHOM??? 
4.1 Unlocking land value for corporate developer-buyers. Was it our Gahmen's intention to unlock land value for the corporate developer-buyers?So that corporate developers could demolish a 15-storey block to build 36-storeys in prime and/or popular residential districts which would NOT otherwise be so easily available for
redevelopment??? So that corporate developers could replace 200,000 sq ft of aggregate "strata-title area" with 600,000 sq ft of "net saleable area" - out of which 100,000 sq ft is for the air-space in your double-storey living/dining room, balconies in every bedroom, bay windows on three sides of your bathroom, and planter boxes in every conceivable nook which spun-off an entire sub-industry of planter-box converter specialists???
[Home-buyers - beware of this thingee called "net saleable area" as this definition morphs over time in true Darwinian spirit by courtesy of our statutory boards/government agencies!] Isn't a doubling of storey height or a tripling of net saleable area more than enough to ensure commercial viability of en bloc redevelopment for corporate developers? Bear in mind that the prime/popular locations of en bloc sites already significantly increase the marketability of the redevelopment - try peddling an en bloc redevelopment in the Katong area versus a new project in Sengkang district built on land bought under the Government Land Sale!
If the answer to
Q4.1 (unlocking land value for corporate developer-buyers) is "yes", I'd say that it is a naughty (if not nutty) answer to this knotty
question. Why? Because it is the citizens with Identity Cards (not the corporations with Business Registration Certificates) who voted in these Members of Parliament to form a Government - dare I even breathe - "of the people, by the people and for the people". Ooops, sorry, we are Singapore, on the other side of Planet Earth - what am I thinking about?
4.2 Unlocking land value for existing owners (predominantly Singaporeans). Or should there be a purpose of "purposiveness" in devising this en bloc legislation such that our Gahmen should re-calibrate this law to unlock land value for existing subsidiary proprietors? Let's not forget that these were the owners who (i)
had the acumen to buy into such prime/popular locations years ago, (ii) used their hard-earned private savings and Central Provident Fund balances for the purchase and paid a huge premium over public housing rates in the process and (iii) prudently applied inflation-hedging as part of their retirement financial planning in the hope of indexing their likely capital gains to inflation over a reasonable time horizon at the point of actualization (ie, upon their retirement or when they really need to monetize their property asset in future to send their children for overseas education, to pay for a major surgery, to embark on a new enterpreneurial venture, etc).
This is just talking the language of our hard-nosed and hard-headed Gahmen about
urban renewal and higher land-use intensity which naturally unlocks land value! This does NOT address the realm of community ties, or our sense of time and place, or our nascent rootedness, or our basic right to reside where we choose, or the sanctity of private property rights - and
NOT be forced by our neighbours to sell our homes and
NOT giving our neighbours to sell what doesn't belong to them in the first place
... even within the context of communal sharing of air-space and common facilities in strata-title developments!
Not that any of the aforementioned are any less important to us as human beings!
Has our model of
Progressive 
Corporatism gone too far for far too long? Is it time to go back to the basics of
Neo-Communitarianism - of Doing Right, in Serving the People (not just the Corporates), and to Seek Balance and Curb Excesses. Is the answer to
Q4.2 (unlocking land value for existing owners) a "yes" possibly?
Or have we missed the forest for the trees?
How to unlock land value for existing owners? By following South Korea's urban renewal model with some modifications (viz, by mandating an ADDITIONAL OPTION for 1-4-1 EN BLOC EXCHANGE based on factual SAME size, SAME floor level and SAME orientation considerations within a narrow band of pre-defined alternatives and variances in order to give some wriggle room to developer-buyer and existing owners in the redevelopment). For more elaboration, please refer to my 5 blog entries dated: - 26 Mar 2007 (One-for-one "exchange"),
- 2 Apr 2007 (Ministry of Law Public Consultation),
- 19 Nov 2007 (After the 2007 law, what's next),
- 24 Dec 2007 (In the coming year of 2008), and
- 7 Aug 2008 (So what's the alternative in the END).
5. Market's ups and downs; Life's twists and turns. Let's bear in mind that the Gillman Heights en bloc sale was crystallized PRIOR to the property prices softening in 3Q 2007 and the market's initial meltdown in 2008.
After the Appellate Court delivered this verdict against the Minority Dissenters, one of them very astutely put her finger on a very pertinent point - She said that she will be getting
$498 psf from this en bloc sale. In the mid-2007 frenzy, she recounted that a 5-room HDB flat in Mei Ling Street was going for
$746 psf in the resale market. Even in today's market nose-dive, a 5-room HDB flat in Bukit Merah is selling at
$600 psf as per her most recent check of the HDB web-site for resale flats.
The conventional wisdom is that there is a so-called "en bloc windfall", thus enabling home owners to monetize their property asset at a premium! Well, i
t all depends on how one defines "premium", eh? It looks like a rose, it pricks like a stalk of rose but does it smell like a rose? Amazing that even ministers sing this monetization tune! These ministers are so out-of-touch with ground realities that they even sing off-key with such gusto - it's really mind-blowing!
"What en bloc windfall?" she hooted. "I still lose money even after I downgrade from a privatized condo to public housing!" she lamented. 
Effectively, this Minority Dissenter will be paid
$498 psf from the en bloc sale that was ostensibly transacted at a market peak by the Sale Committee who sold the family home for her. In view of the Appellate Court verdict and assuming that legal completion of the en bloc sale goes through eventually, she would need a replacement roof for her family.
Scenario 1: If this Minority Dissenter had bought a replacement unit when the en bloc sale was crystallized for fear of the market ramping even higher (because en bloc activity usually takes place only when the property market is hot), she'd have paid $746 psf (ie, $248 extra for each sq ft) even AFTER downgrading from a privatized estate at Gillman Heights to public housing in Mei Ling Street.
Scenario 2: But this Minority Dissenter decided to take a market risk and NOT buy a replacement unit in the mid-2007 frenzy for fear that the en bloc sale may get scuttled/aborted (eg, if STB or the Courts ruled in favour of the Minority Dissenters or if the developer-buyer backs out of the transaction in the end by paying a forfeiture penalty). If the en bloc sale was scuttled/aborted, she could potentially end up with the unintended financial burden of owning two properties. But as events transpired for Gillman Heights en bloc, she got "lucky" in a way in taking this risk because the property market had crashed since then. Who would have known during the mid-2007 frenzy whether the property market was going up or down??? But even in today's downward market spiral, she'd still have to fork-out
$600 psf (ie, $102 extra for each sq ft) for downgrading to public housing in Bukit Merah.
She continued to rant: "Like this, how to do retirement financial planning? You tell me lah?" 
Who can give her an answer? Even with her
"good luck" of selling high and buying low, she is still losing money
in the immediate term! She will also be downgrading her property asset from a
privatised condo in a choice location to a
public housing flat in a less prime vicinity. Real estate is the most valuable and most substantive asset in her family's entire portfolio. Hence,
over the long term, she and her husband will lose the multiplier benefit of a better-classed real estate asset for actualization in the future when her husband eventually retires!
What can I say? I can only agree with the assessment of this Gillman Heights
Minority Dissenter that she is essentially "cooked" by this court verdict. Her sentiments were echoed by her co-litigants. Indeed, they have lost more than the court battle. My heart goes out to the Minority Dissenters
... some put up a brave front and psyched themselves to make the best out of the worst, some felt a sense of vindication that the highest court on our land acknowledged that there was "faulty or inappropriate drafting" of the law even as it ruled against them, some walked away with a dull ache of loss with tears welling up, some struggled to come to terms with the harsh reality - there was a mix of varying degrees of resentment, anxiety, resignation to fate, fear, sadness, disgust, anger.
For many of us, en blocs affect our family homes and - by extension - our memories, our hopes, our dreams and our aspirations. So, you bet, it is EMOTIVE. As it should! For we are human beings after all. But, hey, one never knows, eh? Life's twists and turns are such that maybe, maybe, maybe
... "Man Proposes, God Disposes", as they say ... God may not necessarily heed what the three good Judges Proposed!
Where Singapore has rejected ambulance-chasing lawyers who are paid a certain percentage of the judgement award to accident victims, we have conveniently closed one eye to the en bloc industry standard of “no sale, no fee” for lawyers (and marketing agents).
Having introduced legislation to deliberately let loose market forces from so many angles to facilitate en bloc sales in the name of urban renewal, a lot of us are in connivance by NOT counter-balancing the relentless ferocity of those same market forces.
The legal fraternity did not step up to preempt the market’s exploitation of their own kind. Lawyers are consensual in such exploitation. Their self-preservation and survival instincts naturally kick-in and they resort to embedding and burying all kinds of latent cluster bomblets in the Collective Sale Agreement to trip up even Majority Consenters or conveniently omitting key verbal representations made in their presence to induce signature of such Collective Sale Agreement. Lawyers do collective sale tie-ups with marketing agents to offer a package deal and there is precious l
ittle transparency and open competition to enable owners to make an informed decision and exercise freedom of choice between different law firms. Even for a modest $15mn loan syndication, agent banks typically get three competitive legal fee quotations. Yet for a $500mn en bloc sale, no competitive quotes are obtained with 
any seriousness (although there are occasional cases with some semblance of multiple quotes helpfully "sourced" by the marketing agents who themselves float-or-drown together with the lawyers in the same "no sale, no fee" yacht). Failure by industry players?
paying whatever nominal fees are stated in the Collective Sale Agreement. Whatever these property owners can get away with, they will. “They want it cheap; they want it fresh/beautiful!” – depending on the dialectic Chinese version you choose! Often times, property owners forget the cardinal rule that “if it sounds too good to be true, it probably is”. Failure by end-customers?
The ugly spectre of “serial condo raiders” or “en bloc flippers” is slyly covert in some estates and brazenly overt in other estates! Yet our Ministry of Law has a hands-off approach to this destructive and disruptive element. I do not know enough of the intricacies of the American housing market and how President Barack Obama’s efforts will pan-out in unravelling the present mess by means of the upcoming Housing Mortgage Program.
"But I also want to be very clear about what this plan will not do: It will not rescue the UNSCRUPULOUS or IRRESPONSIBLE by throwing good taxpayer money after bad loans. It will not help SPECULATORS who took risky bets on a rising market and bought homes not to live in but to sell. It will not help dishonest lenders who acted irresponsibility, distorting the facts and dismissing the fine print at the expense of buyers who didn't know better. And it will not reward folks who bought homes they knew from the beginning they would never be able to afford. In short, this plan will not save every home.” In concluding his above speech, President Obama said: "It will not be easy. But IF WE MOVE FORWARD WITH PURPOSE AND RESOLVE – with a deepened appreciation for how fundamental the American Dream is and HOW FRAGILE IT CAN BE WHEN WE FAIL IN OUR COLLECTIVE RESPONSIBILITIES – then I am confident we will overcome this crisis and once again secure that dream for ourselves and for generations to come.” [Capitalization emphasis is by The Pariah. And don't you just luv Straits Times Graphics' clever caricature of Obama???]
Does it have to be in busy, crowded Orchard Road where official motorcades would exacerbate the traffic jams now and then (time is money in our frenetic lifestyle)?
