philippine real estate articles

FAKE TITLES

2011-08-15T18:32:00.000-07:00

GUIDELINES ON HOW TO DETECT FAKE TITLES

1. Check if the initials, signatures, technical description, annotation and other component elements appearing on the front and at the back of the original are exactly the same as that appearing on the owner’s duplicate copy of the title. Any variance is a ground for suspicion;

2. Judicial Forms for titles are considered accountable forms. A serial number is assigned to each judicial form. The serial number to be used for the original copy is printer in rd and the serial number for the duplicate copy is in black. The LRA distributes the judicial forms with serial number in consecutive order to the various Registries of Deeds. Any certificate of title bearing a serial number which is not among the ones delivered to a particular registry is of doubtful authenticity;

3. A number is assigned to each judicial form. It is indicated on the upper left-hand corner of the form. Example: Judicial Form No. 109 is used for the original copy of the TCT which emanated from a decree of registration and Judicial Form No. 109-D is used for the title is not the proper form as indicated by the Judicial Form number, this should be investigated;

Immediately below the Judicial Form number is the year the form was printed or revised. If, for instance, the judicial form on which the title was prepared bears a date previous to the time when such form was printed or revised, then this is a ground for suspicion;

4. The owner’s duplicate copy of the title contains the words “Owner’s Duplicate Certificate” on the left side margin of the judicial form. On the lower left corner of the form is affixed a red seal. The seal should not blot or stain when wet;

5. The last two digits of the title number should correspond with the page number of the registration book indicated on the upper right corner of the title. Any variance should be investigated;

6. A reconstituted transfer certificate of title is identified by the letters “RT” preceding the title number, while the reconstituted original certificate of title carries the letter “RO” before the title number;

7. The Central Bank judicial form is printed on security paper which contains security features. The paper is 50% cotton and 50% chemical wood pulp with artificially colored silk fibers. It has a NALTDRA or LRA watermark which can be seen if held against the light. Patently fake titles are usually printed in forms made of cartolina or some other material of inferior quality.

8. Check if the Register of Deeds who signed the title was the incumbent register of deeds at the time the title was issued;

9. Check the entry of a related transaction in the Primary Entry Book to be certain that the title was issued on the basis of a duly registered document;

10. Check the Enumeration Book or logbook which contains information on the personnel assigned to prepare the title on a certain date and the serial number of the judicial form used;

11. Check the Releasing Book if there was a title of such number that was released by the registry on that certain date;

12. Of necessary, trace the history of the title to determine the genuineness of its source. This may entail going back to the mother title, the derivative titles and relevant documents.

                   13. If necessary, trace the history of the title to determine the genuineness of its
                       source. This may entail going back to the mother title, the derivative titles and
                       relevant documents.

[ Source : www.lra.gov.ph ]

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Pay Parking in Malls Affirmed

2009-12-01T08:43:00.000-08:00

SUPREME COURT OF THE PHILIPPINES

Benchmark Online October 2009

By Jay B. Rempillo

The Supreme Court has upheld the right of mall owners to collect parking fees from their customers.

In a 26-page decision penned by Justice Minita V. Chico-Nazario, the High Court denied the petition for review on certiorari filed by the Office of the Solicitor General, which sought to reverse and set aside January 25, 2007 decision and March 14, 2007 resolution of the Court of Appeals, affirming in toto the May 29, 2002 decision of the Regional Trial Court (RTC) of Makati City, Branch 138 and denying petitioner’s motion for reconsideration, respectively. The RTC had held that respondents Ayala Land Incorporated, Robinsons Land Corporation, Shangri-La Plaza Corporation, and SM Prime Holdings, Inc. could not be obliged to provide free parking spaces in their malls to their patrons and the general public.

The Court said that the total prohibition against the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its implementing rules and regulations. It added that the State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents’ property without payment of just compensation. (GR No. 177056, Office of the Solicitor General v. Ayala Land Incorporated, September 18, 2009)

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read full decision > > > http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/177056.htm

WHAT ARE THE RIGHTS OF A FOREIGNER . . .

2009-06-10T03:34:00.000-07:00

WHAT ARE THE RIGHTS OF A FOREIGNER WHO ACQUIRED LAND

VS. FILIPINA GIRLFRIEND IN WHOSE NAME

THE TCT WAS PLACED UNDER

This is the issue discussed by the Supreme Court in the case of Borromeo vs. Descallar, G.R. No. 159310, February 24, 2009.

The facts as stated in the decision are:

Jambrich, an Austrian arrived in the Philippines in 1983 being assigned in the country and was transferred to Cebu and met and fell in love with a separated Filipina [ herein referred to as respondent ], with two kids and who had no means of livelihood. Thereafter they bought their house and lots but the Register of Deeds refused registration of the Deed of Absolute Sale on the ground that Jambrich was an alien and could not acquire alienable lands of the public domain and therefore his name was erased and the titles issued in the name of the Filipina.

In 1986, Jambrich sold his rights and interests in the said property to a Filipino buyer, Borromeo, [ the petitioner in this case ] to pay for his debt but when Borromeo sought to register the deed of assignment, he discovered that the titles to the lots have been transferred in the name of the Filipina and that the same had been mortgaged.

The buyer, Borromeo then filed a complaint for recovery of the properties. The Filipina girlfiriend claimed that she bought it with her own funds and that Jambrich being a foreigner, was not entitled to own land in the Philippines. The Regional Trial Court rendered a decision in favour of the buyer and declared him to be the owner of the properties since the facts show that the Filipina had no means of livelihood or funds to have bought the property.

The Filipina appealed and the decision was reversed by the Court of Appeals stating that the foreigner, Jambrich, could not have acquired land being a foreigner.

The buyer, Borromeo, appealed by way of petition to the Supreme Court which stated the issues :

1. Who purchased the subject properties?

2. What is the effect of registration of the properties in the name of the Filipina?

In upholding the decision of the lower court, the Supreme Court stated:

The evidence presented showed that Jambrich had all the authority to transfer all his rights, interests and participation in the subject properties by virtue of the Deed of Assignment to the buyer, Borromeo, as it was shown that the funds to purchase the properties came from Jambrich, who was therefore the true buyer of the property, and,

“ Further, the fact that the disputed properties were acquired during the couple’s cohabitation does not help respondent. The rule that co-ownership applies to a man and a woman living exclusively with each other as husband and wife without the benefit of marriage, but are otherwise capacitated to marry each other does not apply. In the instant case, the respondent was still legally married to another when she and Jambrich lived together. In such adulterous relationship, no co-ownership exists between the parties. It is necessary for each of the partners to prove his or her actual contribution in the acquisition of property in order to be able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution does not apply.”

As to the registration of the properties in the name of the Filipina, the Supreme Court said,

“It is settled that registration is not a mode of acquiring ownership. It is only a means of confirming the fact of its existence with notice to the world at large. Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property x x x x x x This is the situation in the instant case. Respondent did not contribute a single centavo in the acquisition of the properties. She had no income of her own at that time, nor did she have any savings. She and her two sons were then fully supported by Jambrich.”

As to the capacity of Jambrich, being an alien, to acquire land, the Supreme Court said,

‘ xxxx the transfer of land xxx to Jambrich, who is an Austrian, would have been declared invalid if challenged, had not Jambrich conveyed the properties to petitioner who is a Filipino citizen. xxxxxx

The rationale behind the Court’s ruling in United Church Board for World Ministries, as reiterated in subsequent cases, is this – since the ban on aliens is intended to preserve the nation’s land for future generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization or those transfers made by aliens to Filipino citizens. As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there would be no more public policy to be protected. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved.”

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2009-06-10T03:24:00.000-07:00

PRESENCE OF HUSBAND

without signing agreement

may still mean consent of the husband

It is provided under the Family Code, more specifically, Article 124, that in case of conjugal properties the consent of the spouse must be obtained in case of sale of real property or disposition thereof ;

“ Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. x x x”

What the above would mean is that the written consent of the spouse must be obtained [ or authority from the court ] in cases of disposition or sale or encumbrance of property, otherwise the same shall be void.

However, in the case of De la Cruz vs. Segovia decided by the Supreme Court last June 26, 2008 [ G.R. No. 149801 ], it held that the presence of the husband even if he did not sign the agreement would show that he had consented to the agreement.

In this case, two sisters, who were both married, entered into an agreement regarding certain properties wherein one of the said sisters, Florinda of de la Cruz, entered into an agreement regarding the sale of one of the properties to the other sister and where she signed without the husband Renato de la Cruz signing the agreement.

Thereafter, the spouses de la Cruz filed a case for Nullity of Contract/Agreement with Damages and one of the grounds relied upon was that the agreement had no force and effect on account of the absence of the signature of the husband of Florinda, Renato.

The case was dismissed by the Regional Trial Court [ RTC ] and the Court of Appeals upheld the decision of the RTC.

The case reached up to the Supreme Court which ruled that as to the ground that the agreement had no force and effect because her husband did not sign the agreement cannot be upheld in view of the actuations of the husband which showed he agreed and gave his conformity to the agreement.

In the decision, the Supreme Court said,

“ x x x As found by the courts below, Renato’s consent to the Agreement was drawn from the fact that he was present at the time it was signed by the sisters and their witnesses; he had knowledge of the Agreement as it was presented to him for his signature, although he did not sign the same because his wife Florinda insisted that her signature already carried that of her husband; Renato witnessed the fact that Leonila contributed her hard earned savings in the amount of P36,000.00 to complete their share in the purchase price of the properties in question in the total amount of P180,000.00. The aforesaid findings of the court below are beyond review at this stage.”

Although the Supreme Court had ruled that even if the husband or spouse did not sign, his actuations and presence would show his consent, it is however, dependent on the facts and only shows that in certain cases, the absence of the signature of the other spouse would not automatically mean that the agreement is void or the party who did not sign can simply move to cancel or declare the agreement void because the spouse did not sign the agreement.

In our real estate practice, it is still deemed best of course to have both spouses sign in a case where it involves the sale or disposition of conjugal property of both spouses in order to ensure that the agreement will be valid.

[ Article written by Atty. Ariel T. Martinez, REALTOR in the issue of The REALTORS Bulletin ]

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Do you still need the "cedula" . . . ?

2008-05-02T10:12:00.000-07:00

Do you still need the
" cedula "
for the notarization of your
Deed of Absolute Sale or other documents ?

Another common concern in a real estate transaction is the notarization of the contract to sell, or deed of absolute sale. or any document pertaining to the transaction.

It has long been a requirement then that one needs the “cedula” or community tax certificate which should then be presented to the notary public for purposes of notarization of the document.

However, sometimes, it happens that the parties to the document do not have or have not yet obtained their community tax certificate at the time that the document would be executed or signed and presented to the notary public.

This sometimes causes delays or even problems in having the contract to sell or deed of absolute sale duly notarized.

Is it still really necessary to have a “cedula” for purposes of notarization?

Actually, since the approval and effectivity of the 2004 Rules of Notarial Practice, which became effective August 1, 2004, it is no longer required that the parties must have a cedula for purposes of notarization.

Under Sec. 12, Rule II, of the 2004 Rules on Notarial Practice, it was provided that the competent evidence of identity shall be :

“ SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence of identity" refers to the identification of an individual based on:

(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or

(b) x x x”

In view of the above, It can now be noted that the “cedula” would not even be considered as a competent evidence of identity, and one can use another identification document provided that it must be,

a current identification document
issued by an official agency
bearing the photograph and signature of the individual

In order to further clarify this, the Supreme Court has issued A.M. No. 02-8-13 last February 19, 2008 and which now reads,

"Sec. 12. Component Evidence of Identity. The phrase "competent evidence of identity" refers to the identification of an individual based on:

(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulations Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disable Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification;

(b) xxxx."

The above amendment to the 2004 Rules of Notarial Practice has now even enumerated the acceptable identification documents a person may use, such as in your real estate transaction.

So, you don’t really have to worry if the parties do not have a “cedula” or request them to go and get a cedula in order to finally have the contract or deed of absolute sale notarized, as even the current driver’s license, passport or any of the above documents would now suffice.

[ Republished from The Realtor's Bulletin, April 2008 ]

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2008-03-10T18:00:00.000-07:00

How to buy real estate (almost) worry-free

By William L. Jasarino
Philippine Daily Inquirer
First Posted 20:32:00 03/07/2008

Conclusion

MANILA, Philippines—Last week, this writer enumerated tips for people who are buying a unit or house to live in and who may not have ready access to professional legal assistance. This is intended to arm ordinary buyers with sufficient knowledge that will prevent, if not lessen, headaches or heartaches when making a purchase.

Here are other tips:

• Get a copy of documents to be signed and study them.

The basic documents include a reservation agreement (although this is not always required), contract to sell and deed of absolute sale. For a condominium, a master deed with declaration of restrictions is indispensable. These documents generally provide the terms and conditions of the sale. The obligations of the buyer are expectedly favorable to the seller.

The interested buyer must take pains to read the documents and identify the provisions that are not clear to him, which will likely be many. He must pay special attention to provisions regarding payments that will be required of him, from reservation, downpayment, amortization, interest and charges for delayed payments to miscellaneous expenses. The important questions here are the exact amounts, in pesos and centavos, and due dates.

The other provisions that the buyer must know about pertain to the completion of the house or unit, if any, and of the entire project. A key document for this purpose is the contract to sell. When the house or unit will be finished, as in livable and delivered to the buyer, should be clear.

Related to this concern is the details of what to expect in the house or unit, viz., size or area, features (with partitions, etc.), kind of flooring, ceiling and wall finishing, kind of electrical fixtures, color, etc. These are not usually spelled out in ads or brochures. Neither are they referred to in any of the documents that the buyer is asked to sign. The prospective buyer must ask the seller to specify these items in writing to prevent a disappointing surprise. The model house or unit can give the parties a basis for doing an itemization.

Project completion is seldom mentioned in any document that the buyer is asked to sign or even in the seller’s advertisement. Nevertheless, this is important because no buyer would want to live in a subdivision or condominium that is incomplete. The not-so-obvious significance of this timetable is the buyer may lawfully suspend amortization payments, upon compliance with certain procedures, if the developer fails to complete the project within the required period for doing so.

This required period for project completion is found in the license to sell issued by HLURB.

A person interested to buy must insist on an explanation by the developer of the documents he will be required to sign before he signs them. He must bear in mind that he will be bound by these documents for his entire life.

• Know the persons you are dealing with.

A buyer will invariably deal with a seller’s employee, whether a lowly clerk, a mid-level manager or a top vice president, a broker or salesman or some other representative.

As an objective criterion, a buyer must deal only with someone who can present a credential or what appears to be a credential, i.e. identification card, letter of authority, HLURB certification or license from the Bureau of Trade Regulation and Consumer Protection of the Department of Trade and Industry.

There may still be some bad apples, so to speak, among these credentialed guys but you have a better chance in going after them and getting some remedy if you will be so unlucky to fall into their hands.

And, always record the names and persons you talk to, their contact numbers and the date and approximate time of the interaction. One may never know when these information will become necessary or even indispensable.

Many times there will be guys who are part-timers in selling. These are one-time agent who are in this only for the commission. They include well-meaning friends and relatives who stumbled upon what they see as good properties. If you have to deal with this bunch, look for the guy behind them with the credential. If you cannot locate this fellow, forget it.

Why? If some unexpected problem is encountered, these guys will likely become difficult to find as their stake in the transaction is almost incidental.

• Know the seller.

The permits will tell you who the seller is. That’s good. But just as important is the reputation of the person or entity appearing as seller. And I’m not referring to the number of employees, the size of the organization, the network of the brokers and agents or the size of the projects. These may matter for other purposes but not always for worry-free buying.

A good source for determining reputation is HLURB, which maintains records of developers and the existence of complaint in their respective specific projects.

To inquire, one needs only to present the name of the owner-developer as well as the name and location of the project.

The number and nature of complaints given the size of the project will give a buyer a more informed judgment as to the reputation of the developer and, in the final analysis, an idea of whether or not there is a big chance that there will be repeats of the complaints in the project that he is buying into.

For sure, none of the foregoing tips should be relied on alone. All or most of them will have to be considered and followed in making a purchase that will be without or with few problems.

(The author is a practicing lawyer and the special assistant to the national president of the Chamber of Real Estate and Builders’ Associations Inc. He was a co-managing partner at Fondevilla Jasarino Young Rondario & Librojo Law Offices.)

2008-03-01T09:24:00.000-08:00

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Pointers on how to detect fake titles

Pointers on how to detect fake land titles provided by the Land Management Bureau under the Department of Environment and Natural Resources (DENR). > > > [ click here ]

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2008-02-23T23:33:00.001-08:00

Should parties to a Deed of Sale
appear before the same Notary Public ?

Notarization of sale or lease or other documents can at times present some problems in our practice.

One must remember that in having the documents of your transaction notarized, the parties must appear before the notary public for acknowledgment. This is also easily seen in the acknowledgment page where it states that,

“Before me, a Notary Public for and in the jurisdiction of ____________, personally appeared the following: “

Under the 2004 Rules on Notarial Practice, acknowledgment has been defined as follows,

“ SECTION 1. Acknowledgment. – “Acknowledgment refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an integrally complete instrument or document;

(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and

(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.”

It is of course the best that the parties both go together or appear in front of the notary public in acknowledging the document.

But what if the parties cannot go together and appear before the same notary public? Can they appear before different notaries public and acknowledge the document separately?

This can happen for a number of reasons, such as, the parties are located in different places or don’t have time to go together to a notary public or, even have their own private lawyer or company lawyer who notarizes documents for the party concerned.

In this case, one can actually have the parties appear in front of different notaries public.

What should one do in case both parties cannot appear before the same notary public or one party just simply would want to have their side notarized by their own lawyer or company lawyer ?

To do this, one would only have to make a provision for two acknowledgment pages or provision for acknowledgment, one for each party. In a case like this, only one party will appear in one acknowledgment page and the other party in the other acknowledgment page.

You can place the acknowledgment provisions in the same page if the acknowledgment provision can be placed or can be accommodated in one page. Otherwise, all you have to do is to have two acknowledgment pages, one for each party to the transaction who will appear before the said notary public.

The notary public will then only notarize for the party concerned in the acknowledgment portion. So, you will actually end up with two acknowledgments by two different notaries public.

In this case, you will still be able to have your document duly notarized even if both parties cannot appear before the same notary public or they prefer to appear before their own notary public.

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2008-02-23T23:23:00.000-08:00

IS YOUR SPA ( Special Power of Attorney ) EXPIRED ? _____________________________________________________________________________

At one point in time, you may have encountered a transaction involving the use of a “SPA” or, a Special Power of Attorney. This is generally used in case the person, whether the seller or the buyer would or could not be physically present to enter into the sale agreement and sign or execute the document, be it a contract to sell or deed of absolute sale.

In real estate transactions, an agent or attorney-in-fact must have a special power of attorney from the principal (seller or buyer) to be able to into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. (Article 1878, New Civil Code, NCC)

However, in some cases you may encounter that the Special Power of Attorney being presented by the seller (or the buyer) is more than one year old or, even several years old.

At that instance, the question that one might ask is, “ Is that SPA still valid ? ” or, “ Is that SPA expired? ”

The issue of the expiration of the SPA is governed by the laws on agency, more particularly, Article 1919 of the New Civil Code, which provides that :

“Art. 1919. Agency is extinguished:

(1) By its revocation;

(2) By the withdrawal of the agent;

(3) By the death, civil interdiction, insanity or insolvency of the principal or the agent;

(4) By the dissolution of the firm or corporation which entrusted or accepted the

agency;

(5) By the accomplishment of the object or purpose of the agency;

(6) By the expiration of the period for which the agency was constituted.

Whether the SPA is still valid or, if it has expired depends therefore on several grounds.

As to the expiration of the SPA, the general rule is that the SPA, even if it was executed several years ago, continues to be valid and you may still use the same in the real estate deal that you are working on.

You could however look into certain conditions that will affect the validity or “expiry” of the SPA, such as:

1. If the SPA provides an expiration date. In some instances, the special power of attorney contains a provision that it is only valid for a certain period, for example, only for one (1) year. In such a case, the SPA expires within that date and no longer has any effect or validity beyond such period as the authority given has expired.

2. It may still happen, or you might find out that the principal has died, in which case, the general rule is that agency is likewise extinguished or simply put, the SPA dies along with the principal and is no longer valid. (Although it could be one which is still effective even upon death of the principal, though this is an exception rather than the general rule.)

3. If the principal has revoked the agency, or the special power given, in which case you must ascertain that no revocation has been made by the principal. (Or it is one which cannot just be revoked by the principal.)

Of course, if it is possible to obtain another SPA which is current or recent, then it may be best to have another SPA executed if the other party insists on a more recent SPA.

What’s important is that, the SPA, just because it was executed several years ago, does not automatically become “stale”/expired unless certain conditions discussed above arise.