Dear PAO,
I have a legal problem regarding the entries in the birth certificates
of my two children. From my reading of your column, I learned that the
error in the entries in the birth certificates of my children will
require correction which can only be effected by an order of the court.
My questions are, how is the petition filed and how much will I spend
for this including the lawyer’s fees?
Ms. Saipan
Dear Ms. Saipan,
Before you can file the petition to effect the correction in the birth
certificates of your children, you should consult a lawyer who will
prepare the said petition. The Petition for Correction of Entry in the
record of birth of any party seeking for correction in the same may be
filed in the Regional Trial Court of the place where the birth is
registered. In your case, you may file the petition in the place of the
appropriate civil registry where the births of your two (2) children are
registered. The said remedy is provided for under Section 1, Rule 108
of the Rules of Court which provides that:
“Any person interested in any act, event or order or decree
concerning the civil status of persons which has been recorded in the
civil register may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Court of First
Instance (now Regional Trial Court) of the province where the civil
registry is located.”
The following entries in the Civil Register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations;
(e) judgments or annulments of marriage; (f) judgment declaring
marriages void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election,
loss or recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a minor; and
(o) changes of name (Section 2, Rule 108, Rules of Court).
Relative to your query of how much is the cost for the filing of the
petition, you will be spending for the filing fees in court as well as
the expenses for the publication. Filing fees for this kind of cases are
minimal. However, the amount of expenses for the publication would
depend on the kind of newspaper that will publish the Order of the court
giving due course to your petition. Judicial publications are
determined through raffle and made through the Office of the Clerk of
Court which has jurisdiction over your petition.
As for the lawyers’ fee, the same is dependent on the intricacies of
the case, the professional standing of the lawyer, among others, and
subject to the guidelines as imposed by the Code of Professional
Responsibility.
Canon 20 of the Code of Professional Responsibility, provides, that a
lawyer shall charge only fair and reasonable fees and in the
determination of the lawyers’ fees, a lawyer shall be guided by the
following factors, to wit:
a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of the acceptance of the proferred case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the service;
h) The character of the employment, whether occasional or established; and
i) Professional standing of the lawyer (Rule 20.01 Code of Professional Responsibility).
Petitions for correction of entries may not be as difficult as other
criminal or civil cases, hence, lawyers may not be charging you much
more than what is fair and reasonable.
We hope that we were able to substantially answer all your queries.
However, please be reminded that our opinion is based on your narration
of facts and our appreciation of the same. The opinion may vary if other
facts are added or elaborated.
Editor’s note: Dear PAO is a daily column of the Public
Attorney’s Office. Questions for Chief Acosta may be sent to
dearpao@manilatimes.net
Thursday, December 5, 2013
Friday, November 22, 2013
Bounced checks constitute crime of estafa
Dear PAO,
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.
I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!
Josie
Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime. As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.
BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.
Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.
I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!
Josie
Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime. As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.
BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.
Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.
source: Manila Times Column of Atty Persida Acosta
Wednesday, November 20, 2013
Last will and testament provisions must be enforced
Dear PAO,
My mother passed away some 13 years ago. When she was still a baby, she was already under the care of my grandparents. They are not her biological parents, no legal adoption transpired. She is actually the daughter of my grandmother’s sister but they took care of her because they had no child of their own. She has been using my grandparents’ names in all her records.
Can she be considered as a legally adopted child? The reason why I am asking is because the conjugal property of my grandparents are now being claimed by their relatives, and according to them my mother is not entitled to any share of the legitime as she is not a legally adopted child of my grandparents. But my grandfather left a will prior to his demise bequeathing all their properties to my mother. Can my mother be considered as a rightful heir? Your guidance will be highly appreciated.
ME
Dear ME,
In the situation that you have presented, we submit that your mother cannot be considered as a legally adopted child. First and foremost, we want to emphasize that there is no such thing as adoption by prescription. Accordingly, even if your mother was under the care of your alleged grandparents, that she has long presented herself as their daughter, and that all her records appear under their names, such will not suffice to declare her as a legally adopted child.
It is necessary that your mother and your alleged grandparents have undergone the process of adoption and that a competent court has declared her to have been legally adopted by her qualified adoptive parents. Absent these, their relationship remains to only be that of aunt-and-niece and uncle-in-law-and-niece.
Insofar as your mother’s right over the properties of her aunt and uncle-in-law is concerned, the claim of the latter’s relatives that your mother is not entitled to a legitime is correct. Legitime, as defined under the law, “is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs” (Article 886, New Civil Code of the Philippines). Pursuant to Article 887 of the said Code, only the following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Since your mother is only the niece of the decedents, she is not considered as one of their compulsory heirs, and thus, not entitled to any legitime.
However, as a devisee or legatee, your mother is entitled to receive the properties left by her uncle. It bears stressing that her uncle executed a last will and testament bequeathing in her favor those properties. Accordingly, the provisions thereof must be enforced. It is only essential that her uncle had no compulsory heir living at the time of his demise and that your mother did not predeceased him. Should there be a compulsory heir living at the time of his demise, only the properties which form part of the free portion of his estate may be transmitted to your mother, in accordance with the provisions of Section 5, Chapter 2, Title IV of the New Civil Code of the Philippines.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
My mother passed away some 13 years ago. When she was still a baby, she was already under the care of my grandparents. They are not her biological parents, no legal adoption transpired. She is actually the daughter of my grandmother’s sister but they took care of her because they had no child of their own. She has been using my grandparents’ names in all her records.
Can she be considered as a legally adopted child? The reason why I am asking is because the conjugal property of my grandparents are now being claimed by their relatives, and according to them my mother is not entitled to any share of the legitime as she is not a legally adopted child of my grandparents. But my grandfather left a will prior to his demise bequeathing all their properties to my mother. Can my mother be considered as a rightful heir? Your guidance will be highly appreciated.
ME
Dear ME,
In the situation that you have presented, we submit that your mother cannot be considered as a legally adopted child. First and foremost, we want to emphasize that there is no such thing as adoption by prescription. Accordingly, even if your mother was under the care of your alleged grandparents, that she has long presented herself as their daughter, and that all her records appear under their names, such will not suffice to declare her as a legally adopted child.
It is necessary that your mother and your alleged grandparents have undergone the process of adoption and that a competent court has declared her to have been legally adopted by her qualified adoptive parents. Absent these, their relationship remains to only be that of aunt-and-niece and uncle-in-law-and-niece.
Insofar as your mother’s right over the properties of her aunt and uncle-in-law is concerned, the claim of the latter’s relatives that your mother is not entitled to a legitime is correct. Legitime, as defined under the law, “is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs” (Article 886, New Civil Code of the Philippines). Pursuant to Article 887 of the said Code, only the following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Since your mother is only the niece of the decedents, she is not considered as one of their compulsory heirs, and thus, not entitled to any legitime.
However, as a devisee or legatee, your mother is entitled to receive the properties left by her uncle. It bears stressing that her uncle executed a last will and testament bequeathing in her favor those properties. Accordingly, the provisions thereof must be enforced. It is only essential that her uncle had no compulsory heir living at the time of his demise and that your mother did not predeceased him. Should there be a compulsory heir living at the time of his demise, only the properties which form part of the free portion of his estate may be transmitted to your mother, in accordance with the provisions of Section 5, Chapter 2, Title IV of the New Civil Code of the Philippines.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty Persida Acosta
Wednesday, November 13, 2013
Lessee may not legally suspend rent payment
Dear PAO,
My friend was named by his cousins as their attorney-in-fact in a Special Power of Attorney which they have executed relating to their properties here in the Philippines since they are domiciled abroad. My friend had the 2,000 square meter lot and the house leased at P2,500 a month, but there was no written contract. The problem is that the lessee has not paid the rentals since October 2012 and is even asking my friend to pay him the amount he spent for the improvements made in the properties. He warned my friend that a case will be filed against him if he will not settle the amount. What can my friend do to force the lessee to leave the properties which are the subject of the lease agreement?
Pia
Dear Pia,
Both parties in a contract of lease have respective obligations to fulfill. For one, the lessor is obliged, during the subsistence of the contract of lease, to make all the necessary repairs to the object of their contract in order to keep the same suitable for the use to which it has been devoted, unless there is a stipulation to the contrary (Article 1654 (2), New Civil Code [NCC]). In so far as the lessee is concerned, he or she is obliged, among others, to pay the price of the lease according to the terms stipulated in their contract (Article 1657 (1), NCC).
Should either the lessor or the lessee fail to comply with his or her obligation, the aggrieved party may ask for the rescission of the contract of lease and indemnification for damages, or allow the contract to remain in force but seek for indemnification for damages he has incurred (Article 1659, NCC). The lessee also has the option of suspending the payment of his rent if the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased and he may order the costs be attributable to the lessor if the latter has failed to make urgent repairs (Article 1658 and Article 1663 (4), NCC).
In the situation that you have presented before us, we cannot conclude with certainty whether your friend, as the representative of the owners of the property, is obliged to indemnify the lessee. While it may be true that certain works have been made by the lessee in the properties leased, it is not clear to us whether such were in the nature of necessary repairs. Accordingly, the lessee may not lawfully suspend the payment of his rent. Neither is there is any showing that such works were made as part of urgent repairs to the properties. Hence, the lessee may not order that the same be placed at the cost of the lessor or his representative.
Since the lessee has failed to comply with his obligation of paying the rent which has became due since October 2012, your friend may opt to file for judicial ejectment against the lessee. Pursuant to Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
My friend was named by his cousins as their attorney-in-fact in a Special Power of Attorney which they have executed relating to their properties here in the Philippines since they are domiciled abroad. My friend had the 2,000 square meter lot and the house leased at P2,500 a month, but there was no written contract. The problem is that the lessee has not paid the rentals since October 2012 and is even asking my friend to pay him the amount he spent for the improvements made in the properties. He warned my friend that a case will be filed against him if he will not settle the amount. What can my friend do to force the lessee to leave the properties which are the subject of the lease agreement?
Pia
Dear Pia,
Both parties in a contract of lease have respective obligations to fulfill. For one, the lessor is obliged, during the subsistence of the contract of lease, to make all the necessary repairs to the object of their contract in order to keep the same suitable for the use to which it has been devoted, unless there is a stipulation to the contrary (Article 1654 (2), New Civil Code [NCC]). In so far as the lessee is concerned, he or she is obliged, among others, to pay the price of the lease according to the terms stipulated in their contract (Article 1657 (1), NCC).
Should either the lessor or the lessee fail to comply with his or her obligation, the aggrieved party may ask for the rescission of the contract of lease and indemnification for damages, or allow the contract to remain in force but seek for indemnification for damages he has incurred (Article 1659, NCC). The lessee also has the option of suspending the payment of his rent if the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased and he may order the costs be attributable to the lessor if the latter has failed to make urgent repairs (Article 1658 and Article 1663 (4), NCC).
In the situation that you have presented before us, we cannot conclude with certainty whether your friend, as the representative of the owners of the property, is obliged to indemnify the lessee. While it may be true that certain works have been made by the lessee in the properties leased, it is not clear to us whether such were in the nature of necessary repairs. Accordingly, the lessee may not lawfully suspend the payment of his rent. Neither is there is any showing that such works were made as part of urgent repairs to the properties. Hence, the lessee may not order that the same be placed at the cost of the lessor or his representative.
Since the lessee has failed to comply with his obligation of paying the rent which has became due since October 2012, your friend may opt to file for judicial ejectment against the lessee. Pursuant to Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Saturday, November 9, 2013
Title to property immaterial in cases of forcible entry
Dear PAO,
My brother and his family used to live in a small residential lot which is subject of a land dispute. Although my brother admits that he has no legal title on the subject land, he has been living in that place for more than a decade now. No case was filed yet nor a court order was issued regarding this dispute but the other party already forced my brother and his family out of their residence through threats and physical force with the assistance of some armed men. Since then, they have been using my brother’s residence as a warehouse.
What case should my brother file to get back his house and to complain the persons who threatened and removed him from his residence? Can he legally complain even without having a land title on his occupied land? We hope for your legal advice on this matter. Thank you and more power!
Bill
Dear Bill,
Based from your narration of your brother’s situation, he may file an action for forcible entry against the people who removed him and his family from his residence.
An action for forcible entry is warranted when “…a person is deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, xxx” (Section 1, Rule 70, Revised Rules of Court). In your brother’s case, the use of force and threats justifies the filing of forcible entry. This action may be filed before the proper Metropolitan Trial Court or Municipal Trial Court, as the case may be, within one (1) year after the unlawful deprivation of the property for the purpose of recovering the possession of the property with damages and costs.
Furthermore, your brother’s lack of land title on the said disputed lot does not bar him from filing an action for forcible entry because the main issue in these kinds of action is the mere physical possession of the property and not the ownership of the said property. This is because in forcible entry cases, the actual condition of the title to the property is largely immaterial. What is important is that “…the party in peaceable and quiet possession shall not be turned out by strong hand, violence, or terror. A party out of possession must respect and resort to the law alone to obtain what he claims is his” (Edgardo L. Paras, Rules of Court Annotated, 1st edition, p. 162, citing Supia and Batioco vs. Quintero and Ayala, 59 Phil. 312).
Thus, in hearing a forcible entry complaint, the court will generally not rule on the ownership of the subject property considering that your brother has no land title on the subject land. The court’s adjudication, in these cases, is limited to the determination of who between the opposing parties has the better right to possess the same.
Once your brother has proven his allegations, the court where the action was filed may restore him as the rightful possessor of the subject property.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
My brother and his family used to live in a small residential lot which is subject of a land dispute. Although my brother admits that he has no legal title on the subject land, he has been living in that place for more than a decade now. No case was filed yet nor a court order was issued regarding this dispute but the other party already forced my brother and his family out of their residence through threats and physical force with the assistance of some armed men. Since then, they have been using my brother’s residence as a warehouse.
What case should my brother file to get back his house and to complain the persons who threatened and removed him from his residence? Can he legally complain even without having a land title on his occupied land? We hope for your legal advice on this matter. Thank you and more power!
Bill
Dear Bill,
Based from your narration of your brother’s situation, he may file an action for forcible entry against the people who removed him and his family from his residence.
An action for forcible entry is warranted when “…a person is deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, xxx” (Section 1, Rule 70, Revised Rules of Court). In your brother’s case, the use of force and threats justifies the filing of forcible entry. This action may be filed before the proper Metropolitan Trial Court or Municipal Trial Court, as the case may be, within one (1) year after the unlawful deprivation of the property for the purpose of recovering the possession of the property with damages and costs.
Furthermore, your brother’s lack of land title on the said disputed lot does not bar him from filing an action for forcible entry because the main issue in these kinds of action is the mere physical possession of the property and not the ownership of the said property. This is because in forcible entry cases, the actual condition of the title to the property is largely immaterial. What is important is that “…the party in peaceable and quiet possession shall not be turned out by strong hand, violence, or terror. A party out of possession must respect and resort to the law alone to obtain what he claims is his” (Edgardo L. Paras, Rules of Court Annotated, 1st edition, p. 162, citing Supia and Batioco vs. Quintero and Ayala, 59 Phil. 312).
Thus, in hearing a forcible entry complaint, the court will generally not rule on the ownership of the subject property considering that your brother has no land title on the subject land. The court’s adjudication, in these cases, is limited to the determination of who between the opposing parties has the better right to possess the same.
Once your brother has proven his allegations, the court where the action was filed may restore him as the rightful possessor of the subject property.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
Sunday, September 22, 2013
SALES: Special Power of Attorney required for agent to sell land
In the 1950s, a woman leased a parcel of land with improvements from
the siblings, who inherited the said land from their deceased parents.
In 1988, the siblings offered to sell the property to the woman for
P500,000. Although the woman accepted the offer, the sale did not
materialize due to the fault of the landowners. Nonetheless, the woman
and her family continued to occupy and use the property with the consent
of the siblings.
In 1994, the woman’s son desired to renew his mother’s option to purchase the subject property. After a series of negotiations with the eldest of the siblings who introduced himself as representing the other landowners, they entered into an oral contract of sale. A year after, he made partial payments amounting to P160,000, which the eldest sibling duly acknowledged and received. But despite his numerous attempts to pay the remaining balance, the son was unable to do so because the eldest sibling avoided him.
In 1997, the son demanded that the siblings execute a Deed of Absolute Sale in exchange for the full payment of the agreed price. Because his demand remained unheeded, he filed a complaint against them for specific performance with damages. He likewise sought to nullify the subsequent sale of said property when he discovered that it was sold to another buyer.
The Regional Trial Court upheld the validity of the oral contract of sale between the woman’s son and the eldest sibling. It ordered the siblings to execute a Deed of Absolute Sale in favor of the son upon payment of the balance and nullified the subsequent sale to the other buyer.
On appeal, the Court of Appeals (CA) modified the lower court’s decision. It upheld the validity of the oral contract of sale between the son and the eldest sibling only insofar as the share of latter in the property is concerned. Based on its findings, it was only the eldest sibling who consented to the sale. For want of authority to sell the other portions of the land belonging to his siblings, the eldest sibling is deemed to have only sold his aliquot share in the property.
In affirming the ruling of the CA, the Supreme Court emphasized the requirement of a Special Power of Attorney (SPA) before an agent may sell immovable property. Article 1878 of the Civil Code requires the execution of a SPA for an agent “to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.” Likewise, Article 1874 of the same Code states that “when the sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.”
In this case, the eldest sibling had no SPA or written authority from his siblings, his co-owners, to sell the subject property. Hence, the sale of the portions of the property belonging to the other siblings is invalid. When the woman’s son relied on the words of the eldest sibling without first securing a copy of the SPA in favor of the latter, he did so at his own risk and must, therefore, be bound by it. Regarding this matter, the High Court has held - Persons dealing with an assumed agency, whether [it] be a general or special one, are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case either is controverted, the burden of proof is upon them to establish it (Recio v. Heirs of Altamirano, G.R. No. 182349, 24 July 2013, J. Reyes).
source: Manila Times Column of Benchpress
In 1994, the woman’s son desired to renew his mother’s option to purchase the subject property. After a series of negotiations with the eldest of the siblings who introduced himself as representing the other landowners, they entered into an oral contract of sale. A year after, he made partial payments amounting to P160,000, which the eldest sibling duly acknowledged and received. But despite his numerous attempts to pay the remaining balance, the son was unable to do so because the eldest sibling avoided him.
In 1997, the son demanded that the siblings execute a Deed of Absolute Sale in exchange for the full payment of the agreed price. Because his demand remained unheeded, he filed a complaint against them for specific performance with damages. He likewise sought to nullify the subsequent sale of said property when he discovered that it was sold to another buyer.
The Regional Trial Court upheld the validity of the oral contract of sale between the woman’s son and the eldest sibling. It ordered the siblings to execute a Deed of Absolute Sale in favor of the son upon payment of the balance and nullified the subsequent sale to the other buyer.
On appeal, the Court of Appeals (CA) modified the lower court’s decision. It upheld the validity of the oral contract of sale between the son and the eldest sibling only insofar as the share of latter in the property is concerned. Based on its findings, it was only the eldest sibling who consented to the sale. For want of authority to sell the other portions of the land belonging to his siblings, the eldest sibling is deemed to have only sold his aliquot share in the property.
In affirming the ruling of the CA, the Supreme Court emphasized the requirement of a Special Power of Attorney (SPA) before an agent may sell immovable property. Article 1878 of the Civil Code requires the execution of a SPA for an agent “to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.” Likewise, Article 1874 of the same Code states that “when the sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.”
In this case, the eldest sibling had no SPA or written authority from his siblings, his co-owners, to sell the subject property. Hence, the sale of the portions of the property belonging to the other siblings is invalid. When the woman’s son relied on the words of the eldest sibling without first securing a copy of the SPA in favor of the latter, he did so at his own risk and must, therefore, be bound by it. Regarding this matter, the High Court has held - Persons dealing with an assumed agency, whether [it] be a general or special one, are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case either is controverted, the burden of proof is upon them to establish it (Recio v. Heirs of Altamirano, G.R. No. 182349, 24 July 2013, J. Reyes).
source: Manila Times Column of Benchpress
WILLS: Testators presumed to be of sound mind
Dear PAO,
I would like to ask for your legal advice regarding the last will and testament of my deceased father. My other siblings contest my father’s will by alleging that he was not in the right mind when he made his last will since he was already very old during that time. My father was around 80 yrs old when he made his last will but I believe that he was still aware and in the right mind when he made it. How would I prove that my father was in his right mind when he made the will?
Richie
Dear Richie,
It is not for you to prove that your father was of sound mind when he made his will. Rather, it is up to your siblings to prove their allegation that your father was not in the right mind at the time of the execution of his will. This is because the law gives the presumption that a person making a will is of sound mind unless proven otherwise.
The law on testamentary capacity clearly states that:
“Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval” (Civil Code of The Philippines).
As explicitly provided by the law, it is up to those who oppose the will to prove the absence of a sound mind by the testator. On the other hand, you will only be required to prove the sanity of your father as the testator if he was previously known to be insane before he made the will.
Furthermore, one’s legal capacity to make a will is unhampered by mere old age since the law precisely states how to determine if the testator was of sound mind in relation to the execution of his will, to which it states that:
“Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act” (Civil Code of The Philippines).
Thus, it is the testator’s awareness and knowledge on the nature of his estate being disposed, the particular object involved, and the character of his testamentary act, which are ultimately considered in determining whether he is of sound mind when he executed the will.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column by Atty Persida Acosta
I would like to ask for your legal advice regarding the last will and testament of my deceased father. My other siblings contest my father’s will by alleging that he was not in the right mind when he made his last will since he was already very old during that time. My father was around 80 yrs old when he made his last will but I believe that he was still aware and in the right mind when he made it. How would I prove that my father was in his right mind when he made the will?
Richie
Dear Richie,
It is not for you to prove that your father was of sound mind when he made his will. Rather, it is up to your siblings to prove their allegation that your father was not in the right mind at the time of the execution of his will. This is because the law gives the presumption that a person making a will is of sound mind unless proven otherwise.
The law on testamentary capacity clearly states that:
“Article 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval” (Civil Code of The Philippines).
As explicitly provided by the law, it is up to those who oppose the will to prove the absence of a sound mind by the testator. On the other hand, you will only be required to prove the sanity of your father as the testator if he was previously known to be insane before he made the will.
Furthermore, one’s legal capacity to make a will is unhampered by mere old age since the law precisely states how to determine if the testator was of sound mind in relation to the execution of his will, to which it states that:
“Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act” (Civil Code of The Philippines).
Thus, it is the testator’s awareness and knowledge on the nature of his estate being disposed, the particular object involved, and the character of his testamentary act, which are ultimately considered in determining whether he is of sound mind when he executed the will.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column by Atty Persida Acosta
Monday, September 16, 2013
SALES: Special Power of Attorney required for agent to sell land
In the 1950s, a woman leased a parcel of land with improvements from
the siblings, who inherited the said land from their deceased parents.
In 1988, the siblings offered to sell the property to the woman for
P500,000. Although the woman accepted the offer, the sale did not
materialize due to the fault of the landowners. Nonetheless, the woman
and her family continued to occupy and use the property with the consent
of the siblings.
In 1994, the woman’s son desired to renew his mother’s option to purchase the subject property. After a series of negotiations with the eldest of the siblings who introduced himself as representing the other landowners, they entered into an oral contract of sale. A year after, he made partial payments amounting to P160,000, which the eldest sibling duly acknowledged and received. But despite his numerous attempts to pay the remaining balance, the son was unable to do so because the eldest sibling avoided him.
In 1997, the son demanded that the siblings execute a Deed of Absolute Sale in exchange for the full payment of the agreed price. Because his demand remained unheeded, he filed a complaint against them for specific performance with damages. He likewise sought to nullify the subsequent sale of said property when he discovered that it was sold to another buyer.
The Regional Trial Court upheld the validity of the oral contract of sale between the woman’s son and the eldest sibling. It ordered the siblings to execute a Deed of Absolute Sale in favor of the son upon payment of the balance and nullified the subsequent sale to the other buyer.
On appeal, the Court of Appeals (CA) modified the lower court’s decision. It upheld the validity of the oral contract of sale between the son and the eldest sibling only insofar as the share of latter in the property is concerned. Based on its findings, it was only the eldest sibling who consented to the sale. For want of authority to sell the other portions of the land belonging to his siblings, the eldest sibling is deemed to have only sold his aliquot share in the property.
In affirming the ruling of the CA, the Supreme Court emphasized the requirement of a Special Power of Attorney (SPA) before an agent may sell immovable property. Article 1878 of the Civil Code requires the execution of a SPA for an agent “to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.” Likewise, Article 1874 of the same Code states that “when the sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.”
In this case, the eldest sibling had no SPA or written authority from his siblings, his co-owners, to sell the subject property. Hence, the sale of the portions of the property belonging to the other siblings is invalid. When the woman’s son relied on the words of the eldest sibling without first securing a copy of the SPA in favor of the latter, he did so at his own risk and must, therefore, be bound by it. Regarding this matter, the High Court has held - Persons dealing with an assumed agency, whether [it] be a general or special one, are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case either is controverted, the burden of proof is upon them to establish it (Recio v. Heirs of Altamirano, G.R. No. 182349, 24 July 2013, J. Reyes).
source: Manila Times' Column of Benchpress
In 1994, the woman’s son desired to renew his mother’s option to purchase the subject property. After a series of negotiations with the eldest of the siblings who introduced himself as representing the other landowners, they entered into an oral contract of sale. A year after, he made partial payments amounting to P160,000, which the eldest sibling duly acknowledged and received. But despite his numerous attempts to pay the remaining balance, the son was unable to do so because the eldest sibling avoided him.
In 1997, the son demanded that the siblings execute a Deed of Absolute Sale in exchange for the full payment of the agreed price. Because his demand remained unheeded, he filed a complaint against them for specific performance with damages. He likewise sought to nullify the subsequent sale of said property when he discovered that it was sold to another buyer.
The Regional Trial Court upheld the validity of the oral contract of sale between the woman’s son and the eldest sibling. It ordered the siblings to execute a Deed of Absolute Sale in favor of the son upon payment of the balance and nullified the subsequent sale to the other buyer.
On appeal, the Court of Appeals (CA) modified the lower court’s decision. It upheld the validity of the oral contract of sale between the son and the eldest sibling only insofar as the share of latter in the property is concerned. Based on its findings, it was only the eldest sibling who consented to the sale. For want of authority to sell the other portions of the land belonging to his siblings, the eldest sibling is deemed to have only sold his aliquot share in the property.
In affirming the ruling of the CA, the Supreme Court emphasized the requirement of a Special Power of Attorney (SPA) before an agent may sell immovable property. Article 1878 of the Civil Code requires the execution of a SPA for an agent “to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.” Likewise, Article 1874 of the same Code states that “when the sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.”
In this case, the eldest sibling had no SPA or written authority from his siblings, his co-owners, to sell the subject property. Hence, the sale of the portions of the property belonging to the other siblings is invalid. When the woman’s son relied on the words of the eldest sibling without first securing a copy of the SPA in favor of the latter, he did so at his own risk and must, therefore, be bound by it. Regarding this matter, the High Court has held - Persons dealing with an assumed agency, whether [it] be a general or special one, are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case either is controverted, the burden of proof is upon them to establish it (Recio v. Heirs of Altamirano, G.R. No. 182349, 24 July 2013, J. Reyes).
source: Manila Times' Column of Benchpress
Wednesday, September 11, 2013
Rent control law covers residential units with monthly rent of P10,000 and below
Dear PAO,
I am renting a condo unit for P15,000 a month. The owner would like to increase the rent to P17,000 a month, four months before the end of the lease contract. Is this not in violation of the Rent Control Law?
Peter
I am renting a condo unit for P15,000 a month. The owner would like to increase the rent to P17,000 a month, four months before the end of the lease contract. Is this not in violation of the Rent Control Law?
Peter
Dear Peter,
The law you are referring to in your letter is Republic Act (R.A.) No. 9653 or the Rent Control Act of 2009. Under this law, the lessor of a residential unit may not increase the rent by more than 7% per annum as long as the unit is occupied by the same lessee (Section 4, R.A. No. 9653).
The law you are referring to in your letter is Republic Act (R.A.) No. 9653 or the Rent Control Act of 2009. Under this law, the lessor of a residential unit may not increase the rent by more than 7% per annum as long as the unit is occupied by the same lessee (Section 4, R.A. No. 9653).
A residential unit as defined by the said law is as follows:
“Residential unit shall refer to an apartment, house and/or land on which another’s dwelling is located and used for residential purposes and shall include not only buildings, part or units thereof used solely as dwelling places, boarding houses, dormitories, rooms and bedspaces offered for rent by their owners, except motels, motel rooms, hotels, hotel rooms, but also those used for home industries, retail stores or other business purposes if the owner thereof and his or her family actually live therein and use it principally for dwelling purposes.”
However, only those residential units where the monthly rent does not exceed P10,000.00 in Metro Manila and other highly urbanized city or P5,000.00 in other places are covered by the said law (Section 4, RA No. 9653).
Since, your monthly rent exceeds the amounts aforementioned, you are not covered by the said law. Thus, the owner of the condominium unit you are renting may increase the amount of rent. Nevertheless, he may do so only after the expiration of the period as stipulated in the contract of lease. In other words, he cannot amend the provision of the lease contract insofar as the monthly rental is concerned, unless you are amenable to the same. If he insists on collecting higher rent than what was agreed upon, he is violating the said contract which will entitle you to either rescind or cause the fulfilment of the terms and conditions of the contract which was violated plus damages in either case (Article 1191, New Civil Code of the Philippines).
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of Atty Persida Acosta
Sunday, July 21, 2013
Claiming refund for recalled subdivision project
Dear PAO,
I have been paying for three years for a house and lot in a subdivision located in the Bicol Region. I am supposed to complete payment two years from now. Unfortunately, the developer contacted us to inform that the subdivision project was recalled and it shall refund the money we have paid. We called the developer’s main office to fix the refund but they are giving us a hard time. Finally, the accounting department confirmed to us that we can only refund half of what we paid citing the Maceda Law. I believe that this is unfair since there is no fault on our part.
Mr. Cinco
Dear Mr. Cinco,
The Maceda Law or Republic Act (R.A.) No. 6552 otherwise known as “Realty Installment Buyer Protection Act” affords buyers on installment on the sale of real estate properties including residential condominium apartments certain rights where they have defaulted in the payment of succeeding installments. The buyer’s rights under the law include, among others: a) To pay, without additional interest, the unpaid installments due within the total grace period earned by him which is hereby fixed at the rate of one month grace period for every one year of installment payments made: Provided, That this right shall be exercised by the buyer only once in every five years of the life of the contract and its extensions, if any.; (b) If the contract is cancelled, the seller shall refund to the buyer the cash surrender value of the payments on the property equivalent to fifty per cent of the total payments made, and, after five years of installments, an additional five per cent every year but not to exceed ninety per cent of the total payments made: Provided, That the actual cancellation of the contract shall take place after thirty days from receipt by the buyer of the notice of cancellation or the demand for rescission of the contract by a notarial act and upon full payment of the cash surrender value to the buyer.
Accordingly, a buyer shall be entitled to refund in case his contract with the seller of the real estate property is cancelled. However, the said provision of R.A. No. 6552 shall be applicable only in case the buyer has made defaults in his succeeding payments. In your situation, the said law cannot be applicable in the cancellation of the developer of the contract involving the sale of a house and lot in a subdivision located in the Bicol region since the same was cancelled not because you defaulted in the payment of your installments. Indeed, the reason for the said cancellation, according to you, was the recall of the subdivision project. Thus, the failure on the part of the developer entitles you, among others, to rescind the contract with payment of damages (Article 1191, Civil Code). You may first send a demand letter to the developer to inform them of your demand. Thereafter, you may file a case in court when the developer refused to give in with your demand. You may also inquire with the Housing and Land Use Regulatory Board (HLURB) for administrative liability of the said developer in its failure to comply with its obligation.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
I have been paying for three years for a house and lot in a subdivision located in the Bicol Region. I am supposed to complete payment two years from now. Unfortunately, the developer contacted us to inform that the subdivision project was recalled and it shall refund the money we have paid. We called the developer’s main office to fix the refund but they are giving us a hard time. Finally, the accounting department confirmed to us that we can only refund half of what we paid citing the Maceda Law. I believe that this is unfair since there is no fault on our part.
Mr. Cinco
Dear Mr. Cinco,
The Maceda Law or Republic Act (R.A.) No. 6552 otherwise known as “Realty Installment Buyer Protection Act” affords buyers on installment on the sale of real estate properties including residential condominium apartments certain rights where they have defaulted in the payment of succeeding installments. The buyer’s rights under the law include, among others: a) To pay, without additional interest, the unpaid installments due within the total grace period earned by him which is hereby fixed at the rate of one month grace period for every one year of installment payments made: Provided, That this right shall be exercised by the buyer only once in every five years of the life of the contract and its extensions, if any.; (b) If the contract is cancelled, the seller shall refund to the buyer the cash surrender value of the payments on the property equivalent to fifty per cent of the total payments made, and, after five years of installments, an additional five per cent every year but not to exceed ninety per cent of the total payments made: Provided, That the actual cancellation of the contract shall take place after thirty days from receipt by the buyer of the notice of cancellation or the demand for rescission of the contract by a notarial act and upon full payment of the cash surrender value to the buyer.
Accordingly, a buyer shall be entitled to refund in case his contract with the seller of the real estate property is cancelled. However, the said provision of R.A. No. 6552 shall be applicable only in case the buyer has made defaults in his succeeding payments. In your situation, the said law cannot be applicable in the cancellation of the developer of the contract involving the sale of a house and lot in a subdivision located in the Bicol region since the same was cancelled not because you defaulted in the payment of your installments. Indeed, the reason for the said cancellation, according to you, was the recall of the subdivision project. Thus, the failure on the part of the developer entitles you, among others, to rescind the contract with payment of damages (Article 1191, Civil Code). You may first send a demand letter to the developer to inform them of your demand. Thereafter, you may file a case in court when the developer refused to give in with your demand. You may also inquire with the Housing and Land Use Regulatory Board (HLURB) for administrative liability of the said developer in its failure to comply with its obligation.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
Sunday, July 14, 2013
The importance of publication
IN 1957, President Carlos Garcia issued Proclamation No. 423,
reserving parcels of land in Pasig, Taguig, Parañaque, Rizal, and Pasay
City as a military reservation, more commonly known as Fort Bonifacio.
In 1967, President Ferdinand Marcos amended Proclamation No. 423 and reserved a portion of Fort Bonifacio for a national shrine. Today, this area is known as Libingan ng mga Bayani. In 1986, President Marcos issued Proclamation No. 2476, further amending Proclamation No. 423 by excluding certain barangays in Lower Bicutan, Upper Bicutan and Signal Village from forming part of the military reservation. At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum, which read: “P.S.—This includes Western Bicutan (SGD.) Ferdinand E. Marcos.” That same year, Proclamation No. 2476 was published in the Official Gazette without the addendum.
In 1999, members of Nagkakaisang Maralita ng Sitio Masigasig, Inc. (NMSMI) filed a petition with the Commission on Settlement of Land Problems (COSLAP) to convert the areas they were occupying in Western Bicutan from public land to alienable land pursuant to Proclamation No. 2476. COSLAP granted the request, ruling that despite the lack of publication of the addendum, the “intention of President Marcos could not be defeated by the negligence or inadvertence of others.”
The Court of Appeals (CA) reversed the decision of COSLAP. On appeal, the Supreme Court (SC) sustained the CA. It ruled that the “Court cannot rely on a handwritten note that was not part of Proclamation No. 2476 as published. Without publication, the note never had any legal force and effect.”
It was undisputed that the handwritten addendum was not included when Proclamation No. 2476 was published in the Official Gazette. The SC, however, noted that the issue of whether President Marcos intended to include Western Bicutan in Proclamation No. 2476 was not only “irrelevant but speculative.” Courts cannot speculate on the probable intent of the legislature apart from the words appearing in the law.
Citing Tañada v. Hon. Tuvera, the SC also reiterated that requirement of publication is indispensable in order to give effect to the law, unless the law itself has otherwise provided. The phrase “unless otherwise provided” refers to a different effectivity date other than after fifteen days following the completion of the law’s publication in the Official Gazette. Nevertheless, this does not imply that the requirement of publication may be dispensed with -
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended . . . It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it.
The Court also cited those covered under the indispensible rule of publication -
[a]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers.
It is important to note that publication “must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws” (Nagkakaisang Maralita ng Sitio Masigasig v. Military Shrine Services, G.R. No. 187587, 5 June 2013, C.J. Sereno).
source: Manila Times' Column of Benchpress
In 1967, President Ferdinand Marcos amended Proclamation No. 423 and reserved a portion of Fort Bonifacio for a national shrine. Today, this area is known as Libingan ng mga Bayani. In 1986, President Marcos issued Proclamation No. 2476, further amending Proclamation No. 423 by excluding certain barangays in Lower Bicutan, Upper Bicutan and Signal Village from forming part of the military reservation. At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum, which read: “P.S.—This includes Western Bicutan (SGD.) Ferdinand E. Marcos.” That same year, Proclamation No. 2476 was published in the Official Gazette without the addendum.
In 1999, members of Nagkakaisang Maralita ng Sitio Masigasig, Inc. (NMSMI) filed a petition with the Commission on Settlement of Land Problems (COSLAP) to convert the areas they were occupying in Western Bicutan from public land to alienable land pursuant to Proclamation No. 2476. COSLAP granted the request, ruling that despite the lack of publication of the addendum, the “intention of President Marcos could not be defeated by the negligence or inadvertence of others.”
The Court of Appeals (CA) reversed the decision of COSLAP. On appeal, the Supreme Court (SC) sustained the CA. It ruled that the “Court cannot rely on a handwritten note that was not part of Proclamation No. 2476 as published. Without publication, the note never had any legal force and effect.”
It was undisputed that the handwritten addendum was not included when Proclamation No. 2476 was published in the Official Gazette. The SC, however, noted that the issue of whether President Marcos intended to include Western Bicutan in Proclamation No. 2476 was not only “irrelevant but speculative.” Courts cannot speculate on the probable intent of the legislature apart from the words appearing in the law.
Citing Tañada v. Hon. Tuvera, the SC also reiterated that requirement of publication is indispensable in order to give effect to the law, unless the law itself has otherwise provided. The phrase “unless otherwise provided” refers to a different effectivity date other than after fifteen days following the completion of the law’s publication in the Official Gazette. Nevertheless, this does not imply that the requirement of publication may be dispensed with -
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended . . . It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it.
The Court also cited those covered under the indispensible rule of publication -
[a]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers.
It is important to note that publication “must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws” (Nagkakaisang Maralita ng Sitio Masigasig v. Military Shrine Services, G.R. No. 187587, 5 June 2013, C.J. Sereno).
source: Manila Times' Column of Benchpress
Buying a building built on own lot
Dear PAO,
My sister-in-law built an apartment on our lot with our permission. She is now selling the apartment to us because of some financial difficulties. Do we still need to execute some documents for the sale?
JV
Dear JV,
A contract of sale is one where one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent (Article 1458, Civil Code of the Philippines). It is a consensual contract which is perfected at the moment there is a meeting of minds between the seller and the buyer upon the thing which is the object of the contract and upon its price. From its perfection, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts (Article 1475, Civil Code of the Philippines).
As a rule, no other form shall be necessary for the perfection and validity of a sale. However, there are certain sales which the law requires to be in writing, not for its validity, but for its enforceability. Article 1403 of the Civil Code of the Philippines requires agreements for the sale of real property or an interest therein to be put into writing:
“Article 1403. The following contracts are unenforceable, unless they are ratified:
xxx
2) Those that do not comply with the Statue of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:
xxx
e. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
xxx
(emphasis supplied)
Based on the foregoing, if you will buy the apartment which was built on your land, you and your wife, as the buyer, and your sister-in-law as the seller, shall execute a Deed of Sale of the apartment. The deed shall contain a clear description of the apartment that you are buying, its price, such other terms that you deem proper provided that they are not contrary to law, morals, good customs, public order or public policy (Article 1305, Civil Code of the Philippines).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
My sister-in-law built an apartment on our lot with our permission. She is now selling the apartment to us because of some financial difficulties. Do we still need to execute some documents for the sale?
JV
Dear JV,
A contract of sale is one where one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent (Article 1458, Civil Code of the Philippines). It is a consensual contract which is perfected at the moment there is a meeting of minds between the seller and the buyer upon the thing which is the object of the contract and upon its price. From its perfection, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts (Article 1475, Civil Code of the Philippines).
As a rule, no other form shall be necessary for the perfection and validity of a sale. However, there are certain sales which the law requires to be in writing, not for its validity, but for its enforceability. Article 1403 of the Civil Code of the Philippines requires agreements for the sale of real property or an interest therein to be put into writing:
“Article 1403. The following contracts are unenforceable, unless they are ratified:
xxx
2) Those that do not comply with the Statue of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents:
xxx
e. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
xxx
(emphasis supplied)
Based on the foregoing, if you will buy the apartment which was built on your land, you and your wife, as the buyer, and your sister-in-law as the seller, shall execute a Deed of Sale of the apartment. The deed shall contain a clear description of the apartment that you are buying, its price, such other terms that you deem proper provided that they are not contrary to law, morals, good customs, public order or public policy (Article 1305, Civil Code of the Philippines).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
Saturday, July 13, 2013
Expired special power of attorney has no legal effect
Dear PAO,
I am planning to buy a house and lot. The person who is transacting with me bought it from the original owner, but the title of the property is still under the latter’s name. He presented to me a Special Power of Attorney for the sale of the property which was signed by the original owner. However, the Special Power of Attorney is already expired as it is indicated in the document that its validity is only one year from the date of the sale of the property to my seller. How do I go about it? How long will it take to transfer the title of the property?
Adrian
I am planning to buy a house and lot. The person who is transacting with me bought it from the original owner, but the title of the property is still under the latter’s name. He presented to me a Special Power of Attorney for the sale of the property which was signed by the original owner. However, the Special Power of Attorney is already expired as it is indicated in the document that its validity is only one year from the date of the sale of the property to my seller. How do I go about it? How long will it take to transfer the title of the property?
Adrian
Dear Adrian,
It is quite common in commercial transactions that a Special Power of Attorney (SPA) is used when the person selling the property is not the owner thereof. In particular, Article 1878 (5) of the New Civil Code provides that an SPA is necessary for a party to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.
It is quite common in commercial transactions that a Special Power of Attorney (SPA) is used when the person selling the property is not the owner thereof. In particular, Article 1878 (5) of the New Civil Code provides that an SPA is necessary for a party to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration.
However, the agent who is holding a Special Power of Attorney must act within the scope of the authority granted him as well as within the time frame he is permitted to act. He cannot bind the principal if he acts beyond what was authorized of him or beyond the period stipulated in the SPA. Moreover, our law provides that one of the modes of extinguishment of the agency is the expiration of the period for which the agency was constituted (Article 1919 (6), id). Hence, any act by virtue of an expired SPA has no legal effect whatsoever. Accordingly, it is not advisable for you to purchase the house and lot on the basis of the SPA that was presented to you considering that the authority granted by the named owner has already lapsed.
Nevertheless, you may insist from the seller of the property to settle first the transfer of the title of the property under his name before you push through with the purchase thereof. Besides, he should find no problem concerning the transfer of such title under his name considering that, as you have mentioned in your letter, he bought the said property from the original owner. By virtue of their contract, he has already acquired the ownership of the subject property.
We cannot say, though, with certainty how long it would take for him to have the transfer of the title of the property under his name as it is dependent on his vigilance in making the necessary arrangements insofar as the payment of the appropriate taxes relative to his transaction with the original owner is concerned as well as with the registration of such transfer with the Register of Deeds of the place where the property is situated.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
Tuesday, July 9, 2013
Owner cannot eject tenants of leased property covered by Rent Control Act
Dear PAO,
I am renting an apartment in Makati City. The property was bought last October 2012, and as I understand, it was sold again to another person in the same year, but I don’t know exactly when. In the middle of December, the last person who bought the apartment wanted us to vacate by the end of this month, because we cannot afford the increase in the rent. Are we obliged to pay and leave without even a grace period?
Thank you. I hope to hear some advice from your office.
Marco
Dear Marco,
You did not indicate the amount of rent you are paying for your apartment. This is important, as it will determine what law applies in your case. If your rent is not more than ten thousand pesos (P10,000) per month, you are covered by the Rent Control Act of 2009 or Republic Act (R.A.) No. 9653. If your rent is more than ten thousand pesos (P10,000) per month, then you are covered by the provisions on lease under the Civil Code of the Philippines.
For the purpose of our discussion, we will assume that your lease contract has not yet expired.
If you are covered by the Rent Control Act, the new owner may not be allowed to eject you from your apartment on the grounds that it has been sold or mortgaged to another person, regardless of whether the lease or mortgage is registered or not (Section 10, R.A. No. 9653).
In addition, the owner or lessor may only increase the rent by not more than seven percent (7%) annually as long as the apartment is occupied by the same lessee (Sec. 4, R.A. No. 9653).
Therefore, if your new landowner is increasing the rent by more than 7% annually, you may not agree to and refuse to pay such increase.
If you are covered by the Civil Code, Article 1676 of the Civil Code states that anyone who purchases a piece of land which is under a lease, but the lease is not under the Registry of Property, he may terminate the lease, except when there is a stipulation to the contrary in the contract or sale or when the purchaser knows of the existence of the lease. It is therefore important for you to know if your lease contract was registered in the Registry of Property, if their contract of sale states that your lease must be respected, or if prior to buying the property, the buyer knew of the existence of the lease contract.
As for the increase in rent, you must look at your lease contract to see when it is proper for a rent increase. This is in conformity with Article 1657 of the Civil Code, which states that the lessee must pay the price of the lease according to the terms in the lease contract.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
I am renting an apartment in Makati City. The property was bought last October 2012, and as I understand, it was sold again to another person in the same year, but I don’t know exactly when. In the middle of December, the last person who bought the apartment wanted us to vacate by the end of this month, because we cannot afford the increase in the rent. Are we obliged to pay and leave without even a grace period?
Thank you. I hope to hear some advice from your office.
Marco
Dear Marco,
You did not indicate the amount of rent you are paying for your apartment. This is important, as it will determine what law applies in your case. If your rent is not more than ten thousand pesos (P10,000) per month, you are covered by the Rent Control Act of 2009 or Republic Act (R.A.) No. 9653. If your rent is more than ten thousand pesos (P10,000) per month, then you are covered by the provisions on lease under the Civil Code of the Philippines.
For the purpose of our discussion, we will assume that your lease contract has not yet expired.
If you are covered by the Rent Control Act, the new owner may not be allowed to eject you from your apartment on the grounds that it has been sold or mortgaged to another person, regardless of whether the lease or mortgage is registered or not (Section 10, R.A. No. 9653).
In addition, the owner or lessor may only increase the rent by not more than seven percent (7%) annually as long as the apartment is occupied by the same lessee (Sec. 4, R.A. No. 9653).
Therefore, if your new landowner is increasing the rent by more than 7% annually, you may not agree to and refuse to pay such increase.
If you are covered by the Civil Code, Article 1676 of the Civil Code states that anyone who purchases a piece of land which is under a lease, but the lease is not under the Registry of Property, he may terminate the lease, except when there is a stipulation to the contrary in the contract or sale or when the purchaser knows of the existence of the lease. It is therefore important for you to know if your lease contract was registered in the Registry of Property, if their contract of sale states that your lease must be respected, or if prior to buying the property, the buyer knew of the existence of the lease contract.
As for the increase in rent, you must look at your lease contract to see when it is proper for a rent increase. This is in conformity with Article 1657 of the Civil Code, which states that the lessee must pay the price of the lease according to the terms in the lease contract.
We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty Persida Acosta
Thursday, July 4, 2013
Laws obligate lessor to make necessary repairs to leased property
Dear PAO,
We were renting a house for almost two years but we recently vacated the premises because it became uninhabitable and my children were always getting sick. The lessor refused to make the necessary repairs despite our repeated demands. We even delayed our rental payment until he makes the necessary repairs, but to no avail.
The lessor’s son and daughter are getting involved in the problem. They are insisting that we pay the 3 months rent that is due plus 5% penalty for every two weeks of delayed payment. I informed her that we intend to use the one month deposit and one month advance that we paid her mother before. But she said that only the one month advance can be used because the deposit is a security bond or a guarantee that we will be staying in the house until the contract ends.
The lessor also told us that she will file a case in court if we do not settle the amount due. Is this correct? Are we still bound to pay even if we were not evicted but instead voluntarily left the premises?
Annalyn
Dear Annalyn,
First and foremost, we would like to stress that under our laws, it is the obligation of the lessor to make all the necessary repairs to the thing leased, during the subsistence of the contract of lease, in order to keep it suitable for the use to which it has been devoted. The only exception to this rule is when the lessor and the lessee have agreed that the repairs shall be shouldered by the lessee.
In the situation that you have presented, it is not apparent whether you and your lessor have agreed that you will be shouldering the expenses for the repairs of the house. Hence, it is presumed that the responsibility remains on her. Accordingly, she should maintain the property tenantable and safe for you and your family. If she fails to do so, you have the option of suspending the payment of your rent. This recourse is recognized by our law. As provided for under Article 1658 of the New Civil Code of the Philippines, “The lessee may suspend the payment of the rent in case the lessor fails to make the necessary repairs or to maintain the lessee in the peaceful and adequate enjoyment of the property leased.”
However, the option of suspending the payment of the rent does not mean that you are discharged of your obligation to whatever amount that has already become due even if you opted to voluntarily vacate the premises. This obligation does not only form part of your contract, but it is also imposed under Article 1657, id, which provides that: “The lessee is obliged: (1) to pay the price of the lease according to the terms stipulated; x x x” Therefore, you are still liable to settle the 3-month rent that you have withheld from the lessor. You may also be held accountable for 5% penalty for every two weeks of delayed payment if this is expressly provided for under your contract of lease.
Nevertheless, you may ask that your lessor exhaust the advanced rental and deposit that you have given her to answer for the rent which you are still obliged to settle. Her daughter cannot insist that the deposit you have made will only serve as a guarantee that you will be staying in the house until the contract ends, unless such condition is expressly stated in your contract. It is worth noting that Section 7 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009 provides that, “x x x In the event however, that the lessee fails to settle rent, electric, telephone, water or such other utility bills or destroys any house components and accessories, the deposits and interests therein shall be forfeited in favor of the latter in the amount commensurate to the pecuniary damage done by the former.”
If the amount of deposit and advanced rental payment is still insufficient to answer for the rent that has become due, we strongly advise you to settle the same. Should you fail to do so, your lessor has the right to file the appropriate case against you.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
We were renting a house for almost two years but we recently vacated the premises because it became uninhabitable and my children were always getting sick. The lessor refused to make the necessary repairs despite our repeated demands. We even delayed our rental payment until he makes the necessary repairs, but to no avail.
The lessor’s son and daughter are getting involved in the problem. They are insisting that we pay the 3 months rent that is due plus 5% penalty for every two weeks of delayed payment. I informed her that we intend to use the one month deposit and one month advance that we paid her mother before. But she said that only the one month advance can be used because the deposit is a security bond or a guarantee that we will be staying in the house until the contract ends.
The lessor also told us that she will file a case in court if we do not settle the amount due. Is this correct? Are we still bound to pay even if we were not evicted but instead voluntarily left the premises?
Annalyn
Dear Annalyn,
First and foremost, we would like to stress that under our laws, it is the obligation of the lessor to make all the necessary repairs to the thing leased, during the subsistence of the contract of lease, in order to keep it suitable for the use to which it has been devoted. The only exception to this rule is when the lessor and the lessee have agreed that the repairs shall be shouldered by the lessee.
In the situation that you have presented, it is not apparent whether you and your lessor have agreed that you will be shouldering the expenses for the repairs of the house. Hence, it is presumed that the responsibility remains on her. Accordingly, she should maintain the property tenantable and safe for you and your family. If she fails to do so, you have the option of suspending the payment of your rent. This recourse is recognized by our law. As provided for under Article 1658 of the New Civil Code of the Philippines, “The lessee may suspend the payment of the rent in case the lessor fails to make the necessary repairs or to maintain the lessee in the peaceful and adequate enjoyment of the property leased.”
However, the option of suspending the payment of the rent does not mean that you are discharged of your obligation to whatever amount that has already become due even if you opted to voluntarily vacate the premises. This obligation does not only form part of your contract, but it is also imposed under Article 1657, id, which provides that: “The lessee is obliged: (1) to pay the price of the lease according to the terms stipulated; x x x” Therefore, you are still liable to settle the 3-month rent that you have withheld from the lessor. You may also be held accountable for 5% penalty for every two weeks of delayed payment if this is expressly provided for under your contract of lease.
Nevertheless, you may ask that your lessor exhaust the advanced rental and deposit that you have given her to answer for the rent which you are still obliged to settle. Her daughter cannot insist that the deposit you have made will only serve as a guarantee that you will be staying in the house until the contract ends, unless such condition is expressly stated in your contract. It is worth noting that Section 7 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009 provides that, “x x x In the event however, that the lessee fails to settle rent, electric, telephone, water or such other utility bills or destroys any house components and accessories, the deposits and interests therein shall be forfeited in favor of the latter in the amount commensurate to the pecuniary damage done by the former.”
If the amount of deposit and advanced rental payment is still insufficient to answer for the rent that has become due, we strongly advise you to settle the same. Should you fail to do so, your lessor has the right to file the appropriate case against you.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column of Atty. Persida Acosta
Saturday, June 29, 2013
Law requires no specific form for lease contract
Dear PAO,
We are planning to require our tenants to sign a contract of lease. Is there a specific form for that?
MAF
We are planning to require our tenants to sign a contract of lease. Is there a specific form for that?
MAF
Dear MAF,
By a contract of lease, a person, called the lessor, binds himself to give to another the enjoyment or use of a thing for a price certain and for a period, which may be definite or indefinite (Article 1643, Civil Code of the Philippines). It is a consensual contract which is perfected from the moment there is a meeting of minds between the lessor and the lessee as to the property to be rented and the amount of rent to be paid. As a rule, no other form shall be necessary for its perfection. However, there are certain contracts which the law requires to be put in writing, not for its validity but for the convenience of parties. One of which is an agreement for the lease of property for a period longer than one year. Article 1403 of the Civil Code of the Philippines provides:
By a contract of lease, a person, called the lessor, binds himself to give to another the enjoyment or use of a thing for a price certain and for a period, which may be definite or indefinite (Article 1643, Civil Code of the Philippines). It is a consensual contract which is perfected from the moment there is a meeting of minds between the lessor and the lessee as to the property to be rented and the amount of rent to be paid. As a rule, no other form shall be necessary for its perfection. However, there are certain contracts which the law requires to be put in writing, not for its validity but for the convenience of parties. One of which is an agreement for the lease of property for a period longer than one year. Article 1403 of the Civil Code of the Philippines provides:
“Article 1403. The following contracts are unenforceable, unless they are ratified:
1. xxx
2. Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; xxx
xxx
e. An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein;
xxx
Even if you are not leasing your property for more than one year, it would be better for you and your tenants to execute a contract of lease as the same shall be the best evidence of your agreement. There is no specific form of a contract of lease. Like any other contract, a contract of lease shall be signed by the lessor and the lessee and shall contain the personal information of the parties and all the terms and conditions that they have agreed upon. You and your tenants are free to include in you contract of lease such stipulations, clauses, terms and conditions as you deem convenient, provided that they are not contrary to law, morals, good customs, public order, or public policy (Article 1306, Civil Code of the Philippines).
Among the terms included in a contract of lease are the following: the amount of the rent, the place and date when the rent is due, duration of the period of rent, restrictions on the leased premises, interests or penalties due for non-com-pliance of the agreements.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Tuesday, May 7, 2013
FAMILY CODE: Non-inclusion in will takes out right of illegitimate child as heir
Dear PAO,
I have a cousin who is born out of wedlock. His father died when he was just 4 years old and his grandparents died a couple of years ago. He is now 32 years old and wanted to know if he can inherit from his father’s share of the estate. His father predeceased his parents and has 3 siblings. The remaining children of his grandparents transferred the properties only to themselves and left my cousin nothing. Does my cousin have a right on the share of his father?
Joshua
Dear Joshua,
Since you mentioned that your cousin was born out of wedlock, it is safe to assume that he is an illegitimate child. Taking this into consideration, the right of your cousin to inherit from his grandparents is affected by his status as an illegitimate child.
Article 992 of the New Civil Code of the Philippines states that:
“An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father and mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.”
Thus, according to the aforementioned law, your cousin cannot inherit from his grandparents except through a last will and testament, known as testamentary succession.
This same law was also cited by the Supreme Court in the case of Leonardo vs. Court of Appeals, 120 SCRA 890, 1983, in ruling that an illegitimate child cannot inherit from his great grandparent for being an illegitimate child.
Note however that, under the normal circumstances, grandchildren may inherit from their grandparents through the right of representation which is provided by law as:
“. . . a right created by fiction of law, by virtue of which the representative is raised to the place and degree of the person represented, and acquires the right, which the latter would have if he were living or if he could have inherited” (Article 970, New Civil Code).
To further illustrate, a grandson with a right of representation subrogates the right of his deceased father to inherit from his grandfather if the father: a) predeceased the grandfather, b) is incapacitated or c) was disinherited (Articles 981, 1035 and 923, New Civil Code). Applying this rule, the inheritance of a grandson shall cover all that his father would have inherited from his grandfather if the latter were alive should the grandfather die intestate, or without a last will and testament.
However this rule applies only to legitimate children. And since it was established that your cousin is an illegitimate child, the law prohibiting illegitimate children to represent their father’s share in the inheritance from his relatives shall apply.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of PAO Chief Atty
I have a cousin who is born out of wedlock. His father died when he was just 4 years old and his grandparents died a couple of years ago. He is now 32 years old and wanted to know if he can inherit from his father’s share of the estate. His father predeceased his parents and has 3 siblings. The remaining children of his grandparents transferred the properties only to themselves and left my cousin nothing. Does my cousin have a right on the share of his father?
Joshua
Dear Joshua,
Since you mentioned that your cousin was born out of wedlock, it is safe to assume that he is an illegitimate child. Taking this into consideration, the right of your cousin to inherit from his grandparents is affected by his status as an illegitimate child.
Article 992 of the New Civil Code of the Philippines states that:
“An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father and mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.”
Thus, according to the aforementioned law, your cousin cannot inherit from his grandparents except through a last will and testament, known as testamentary succession.
This same law was also cited by the Supreme Court in the case of Leonardo vs. Court of Appeals, 120 SCRA 890, 1983, in ruling that an illegitimate child cannot inherit from his great grandparent for being an illegitimate child.
Note however that, under the normal circumstances, grandchildren may inherit from their grandparents through the right of representation which is provided by law as:
“. . . a right created by fiction of law, by virtue of which the representative is raised to the place and degree of the person represented, and acquires the right, which the latter would have if he were living or if he could have inherited” (Article 970, New Civil Code).
To further illustrate, a grandson with a right of representation subrogates the right of his deceased father to inherit from his grandfather if the father: a) predeceased the grandfather, b) is incapacitated or c) was disinherited (Articles 981, 1035 and 923, New Civil Code). Applying this rule, the inheritance of a grandson shall cover all that his father would have inherited from his grandfather if the latter were alive should the grandfather die intestate, or without a last will and testament.
However this rule applies only to legitimate children. And since it was established that your cousin is an illegitimate child, the law prohibiting illegitimate children to represent their father’s share in the inheritance from his relatives shall apply.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
source: Manila Times Column of PAO Chief Atty
Thursday, April 18, 2013
RENT CONTROL ACT: Tenant may be ejected for failure to pay three months rent
Dear PAO,
I have a tenant who has failed to pay for three consecutive months. The rental fee is P5,000.00 per month. He is ignoring my claims and refuses to talk to me. I already filed a complaint before the Barangay but he never showed up during the hearings. What should I do?
Zarina
Dear Zarina,
What exists between you and your tenant is a contract of lease. Pursuant to Article 1654 of the New Civil Code of the Philippines, you are obliged to: (1) deliver the thing which is the object of your contract in such a condition as to render it fit for the use intended; (2) make all the necessary repairs, during the subsistence of your contract, in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary; and (3) maintain the lessee in the peaceful and adequate enjoyment of the thing leased for the entire duration of your contract. On the part of your tenant, he is obliged, among others, to pay the price of the lease according to the terms the two of you have agreed on (Article 1657 (1), id).
Accordingly, we submit that you have the right to claim from your tenant the payment of his rental arrears. However, your legal claims must first be threshed out before the Barangay since, as you have mentioned in your letter, you have filed your claims therein. It is worth emphasizing that our regular courts will not take cognizance of any existing claim which is well within the jurisdiction of the Barangay.
Nevertheless, you may seek for the issuance of a certificate to file action from your Barangay Chairman. Such recourse is available if the obligee, the lessee as in this case, continues to avoid attending the hearings before the Barangay, making amicable settlement unattainable. Thereafter, you may proceed with filing an action for ejectment against your lessee. As provided for under Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x” You may also ask for the payment of the amount which your lessee owes you, as well as damages, if you have incurred any.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by
I have a tenant who has failed to pay for three consecutive months. The rental fee is P5,000.00 per month. He is ignoring my claims and refuses to talk to me. I already filed a complaint before the Barangay but he never showed up during the hearings. What should I do?
Zarina
Dear Zarina,
What exists between you and your tenant is a contract of lease. Pursuant to Article 1654 of the New Civil Code of the Philippines, you are obliged to: (1) deliver the thing which is the object of your contract in such a condition as to render it fit for the use intended; (2) make all the necessary repairs, during the subsistence of your contract, in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary; and (3) maintain the lessee in the peaceful and adequate enjoyment of the thing leased for the entire duration of your contract. On the part of your tenant, he is obliged, among others, to pay the price of the lease according to the terms the two of you have agreed on (Article 1657 (1), id).
Accordingly, we submit that you have the right to claim from your tenant the payment of his rental arrears. However, your legal claims must first be threshed out before the Barangay since, as you have mentioned in your letter, you have filed your claims therein. It is worth emphasizing that our regular courts will not take cognizance of any existing claim which is well within the jurisdiction of the Barangay.
Nevertheless, you may seek for the issuance of a certificate to file action from your Barangay Chairman. Such recourse is available if the obligee, the lessee as in this case, continues to avoid attending the hearings before the Barangay, making amicable settlement unattainable. Thereafter, you may proceed with filing an action for ejectment against your lessee. As provided for under Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x” You may also ask for the payment of the amount which your lessee owes you, as well as damages, if you have incurred any.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by
Saturday, April 13, 2013
Family Code: Infidelity no reason for deportation
Dear PAO,
I just want to know whether or not I can have my father deported from Saudi Arabia. He had an affair with another woman in Khamis, Saudi Arabia while he is married to my mother. Can you advise us on what we should do? Thank you.
NRK
Dear NRK,
Spouses are obliged to remain faithful to each other. Such obligation is expressly provided for under Article 68 of the Family Code of the Philippines: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Mere distance should not serve as an excuse for both of the spouses to falter from their mutual responsibilities. Instead, distance should serve as a motivation for them to make their love for each other stronger.
In the situation you have presented before us, it is undeniable that your father has violated his legal obligation to your mother. He should not have had an affair with another woman. However, we do not see such violation as a sufficient ground in order to have your father deported from Saudi Arabia. To begin with, your father has the right to travel, like any of us, and such right is protected by no less than our Constitution. It may only be thwarted in the instances recognized under the law. As provided for under Section 6, Article III of the 1987 Philippine Constitution, “x x x Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
Aside from the foregoing, it bears stressing that deportation mainly rests on the laws of the country where the alleged violator is. Accordingly, your father may only be deported by the government of Saudi Arabia if it is proven that he has violated a law of that country.
We would like to emphasize that we are not condoning what your father has done. As we have mentioned earlier, he has violated his obligation. Nonetheless, we must remain guided by our laws. In addition, we must respect the laws of other countries.
source: Manila Times' Column by
I just want to know whether or not I can have my father deported from Saudi Arabia. He had an affair with another woman in Khamis, Saudi Arabia while he is married to my mother. Can you advise us on what we should do? Thank you.
NRK
Dear NRK,
Spouses are obliged to remain faithful to each other. Such obligation is expressly provided for under Article 68 of the Family Code of the Philippines: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Mere distance should not serve as an excuse for both of the spouses to falter from their mutual responsibilities. Instead, distance should serve as a motivation for them to make their love for each other stronger.
In the situation you have presented before us, it is undeniable that your father has violated his legal obligation to your mother. He should not have had an affair with another woman. However, we do not see such violation as a sufficient ground in order to have your father deported from Saudi Arabia. To begin with, your father has the right to travel, like any of us, and such right is protected by no less than our Constitution. It may only be thwarted in the instances recognized under the law. As provided for under Section 6, Article III of the 1987 Philippine Constitution, “x x x Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
Aside from the foregoing, it bears stressing that deportation mainly rests on the laws of the country where the alleged violator is. Accordingly, your father may only be deported by the government of Saudi Arabia if it is proven that he has violated a law of that country.
We would like to emphasize that we are not condoning what your father has done. As we have mentioned earlier, he has violated his obligation. Nonetheless, we must remain guided by our laws. In addition, we must respect the laws of other countries.
source: Manila Times' Column by
Wednesday, April 10, 2013
As negotiable instrument, laws set limitations on checks
Dear PAO,
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
Tuesday, April 9, 2013
Buyer can return defective vehicle
Dear PAO,
I bought a second hand car from an auto exchange shop. The dealer guaranteed to me that the car is in good condition for it was only used by the first owner for two years. The car was exactly in good condition as guaranteed. But after three months, we started to encounter several problems such as over-heating. We went back to the auto exchange shop to complain this matter. They have repaired the car but still we encountered the same problem. What other solutions are available to us? Can we just demand for the return of our payment?
Ignacio
Dear Ignacio,
In a contract of sale, one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. The vendor is not only obliged to transfer the ownership of and deliver, but he has the obligation to warrant the thing sold. In connection therewith, the seller impliedly warrants that he has the right to sell the thing at the time when the ownership is to pass, and that the buyer shall from that time have and enjoy the legal and peaceful possession of the thing. There is also an implied warranty that the thing shall be free from any hidden faults or defects, or any charge or encumbrance not declared or known to the buyer (Articles 1458, 1495 and1547, Civil Code).
In your situation, we suggest that you refer first your problem to the written warranty existing in
connection with the sale of the vehicle. The obligations and liabilities of the auto exchange shop, as the seller, even if the vehicle bought is second hand, shall be based upon the written warranty that exists. In the absence thereof, the shop shall remain to be liable under its implied warranty as already mentioned. More particularly, the liability of the shop is clear under Articles 1561 and 1567 of the Civil Code, stating that the seller shall be responsible for warranty against hidden defects which the thing sold may have, should they render it unfit for the use for which it is intended, or should they diminish its fitness for such use to such an extent that, had the buyer been aware thereof, he would not have acquired it or would have given a lower price for it. In such a case, you may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damage in either case. Thus, you may demand from the shop for the return of the vehicle bought and the refund of the payment made with damages.
source: Manila Times' Column by
I bought a second hand car from an auto exchange shop. The dealer guaranteed to me that the car is in good condition for it was only used by the first owner for two years. The car was exactly in good condition as guaranteed. But after three months, we started to encounter several problems such as over-heating. We went back to the auto exchange shop to complain this matter. They have repaired the car but still we encountered the same problem. What other solutions are available to us? Can we just demand for the return of our payment?
Ignacio
Dear Ignacio,
In a contract of sale, one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. The vendor is not only obliged to transfer the ownership of and deliver, but he has the obligation to warrant the thing sold. In connection therewith, the seller impliedly warrants that he has the right to sell the thing at the time when the ownership is to pass, and that the buyer shall from that time have and enjoy the legal and peaceful possession of the thing. There is also an implied warranty that the thing shall be free from any hidden faults or defects, or any charge or encumbrance not declared or known to the buyer (Articles 1458, 1495 and1547, Civil Code).
In your situation, we suggest that you refer first your problem to the written warranty existing in
connection with the sale of the vehicle. The obligations and liabilities of the auto exchange shop, as the seller, even if the vehicle bought is second hand, shall be based upon the written warranty that exists. In the absence thereof, the shop shall remain to be liable under its implied warranty as already mentioned. More particularly, the liability of the shop is clear under Articles 1561 and 1567 of the Civil Code, stating that the seller shall be responsible for warranty against hidden defects which the thing sold may have, should they render it unfit for the use for which it is intended, or should they diminish its fitness for such use to such an extent that, had the buyer been aware thereof, he would not have acquired it or would have given a lower price for it. In such a case, you may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damage in either case. Thus, you may demand from the shop for the return of the vehicle bought and the refund of the payment made with damages.
source: Manila Times' Column by
Sunday, April 7, 2013
Foreign citizens entitled to own real property via succession
Dear PAO,
I am a 72-year-old widower. I have two children with my second wife and three children with my previous wife. My children from the first marriage are all naturalized foreign citizens and have not acquired dual citizenship yet. They are also
living with their own families in other countries. I plan to make a last will and testament. May I exclude my children from my first marriage in my last will and testament?
Greggy
Dear Greggy,
Children, legitimate or illegitimate, are compulsory heirs of their parents. Thus, they are entitled to receive legitime or that part of the estate which by law is reserved to them (Article 887, Civil Code). As such, a child cannot be excluded in the partition of the estate of his deceased parent even if the said parent dislikes his child, unless the former is deprived of his legitime through disinheritance. The grounds for disinheritance of a child are limited to those mentioned under Article 919 of the Civil Code, to wit: (1) when a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) when a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) when a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) when a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) a refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) maltreatment of the testator by word or deed, by the child or descendant; (7) when a child or descendant leads a dishonorable or disgraceful life; (8) conviction of a crime which carries with it the penalty of civil interdiction.
Based on the foregoing, you cannot exclude your children from your first marriage in your last will and testament if there is no ground for their disinheritance. Being a foreigner or change of citizenship is not a sufficient ground for the denial of their share in the estate because, even if they are foreigners, they are entitled to their legitime and even entitled to hold real estate properties in the Philippines in accordance with Section 7, Article XII of the 1987 Constitution, giving foreigners the right to hold real estate properties if the mode of transfer is through hereditary succession.
source: Manila Times PAO Column of Atty. Persida Acosta
I am a 72-year-old widower. I have two children with my second wife and three children with my previous wife. My children from the first marriage are all naturalized foreign citizens and have not acquired dual citizenship yet. They are also
living with their own families in other countries. I plan to make a last will and testament. May I exclude my children from my first marriage in my last will and testament?
Greggy
Dear Greggy,
Children, legitimate or illegitimate, are compulsory heirs of their parents. Thus, they are entitled to receive legitime or that part of the estate which by law is reserved to them (Article 887, Civil Code). As such, a child cannot be excluded in the partition of the estate of his deceased parent even if the said parent dislikes his child, unless the former is deprived of his legitime through disinheritance. The grounds for disinheritance of a child are limited to those mentioned under Article 919 of the Civil Code, to wit: (1) when a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) when a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) when a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) when a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) a refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) maltreatment of the testator by word or deed, by the child or descendant; (7) when a child or descendant leads a dishonorable or disgraceful life; (8) conviction of a crime which carries with it the penalty of civil interdiction.
Based on the foregoing, you cannot exclude your children from your first marriage in your last will and testament if there is no ground for their disinheritance. Being a foreigner or change of citizenship is not a sufficient ground for the denial of their share in the estate because, even if they are foreigners, they are entitled to their legitime and even entitled to hold real estate properties in the Philippines in accordance with Section 7, Article XII of the 1987 Constitution, giving foreigners the right to hold real estate properties if the mode of transfer is through hereditary succession.
source: Manila Times PAO Column of Atty. Persida Acosta
Friday, April 5, 2013
PD 1529: Implied trust eases transfer of property to real owners
Dear PAO,
My wife and I bought a tract of land through Pag-ibig. Since we were both Overseas Filipino Workers (OFW), I asked my sister-in law to make the purchase in our behalf. Accordingly, the title was named after her. Unfortunately, after 3-4 months thereafter, my sister-in-law passed away because of sickness. The title remains under her name but the original certificate of title is in our possession. We found out from a reliable source that a relative of my sister-in-law is planning to get a certified true copy of the title for the purpose of selling the land. Can that relative sell the property with the use of a certified true copy of the title?
Bert
Dear Bert,
The certificate of title of a land is the best evidence to prove ownership of the named person over a parcel of land described therein. In your case, if we are to examine the owner’s certificate of title in your possession, the owner of the parcel of land described therein is your sister-in-law since she is the person named as the registered owner. As the registered owner she or her heirs in case of her death may sell or convey the same to another person. However, if an implied trust is created between you, your wife and your sister-in-law, the property may be transferred to your name as the real owners thereof. It is provided under Article 1453 of the Civil Code that “when property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another or to the grantor, there is implied trust in favor of the person whose benefit is contemplated”. If you are claiming your right under an implied trust, it is proper to register the said claim by filing a sworn statement of such claim in the Registry of Deeds of the place where the property is registered (Section 68, PD. 1529, otherwise known as the “Property Registration Decree”).
The heirs of your sister-in-law may sell the property on the basis of hereditary right being the successors of the deceased if they are to rely upon the certificate of title. However, the seller cannot register his right thereto without the presentation of the owner’s duplicate of title, which is in your possession. The presentation of the owner’s duplicate of title is necessary in order to register the transactions / dealings voluntarily entered into by the registered owner in accordance with Section 53 of the Property Registration Decree. It is still best if you and your wife could communicate this matter to the heirs of your sister-in-law. If they have no objections to your claim, they may execute a deed of conveyance in your favor in order that a title may be transferred to your name. On the other hand, you have to prove the said claim based on implied trust in court in case the heirs would opposed thereto.
source: Manila Times' Column of Atty
My wife and I bought a tract of land through Pag-ibig. Since we were both Overseas Filipino Workers (OFW), I asked my sister-in law to make the purchase in our behalf. Accordingly, the title was named after her. Unfortunately, after 3-4 months thereafter, my sister-in-law passed away because of sickness. The title remains under her name but the original certificate of title is in our possession. We found out from a reliable source that a relative of my sister-in-law is planning to get a certified true copy of the title for the purpose of selling the land. Can that relative sell the property with the use of a certified true copy of the title?
Bert
Dear Bert,
The certificate of title of a land is the best evidence to prove ownership of the named person over a parcel of land described therein. In your case, if we are to examine the owner’s certificate of title in your possession, the owner of the parcel of land described therein is your sister-in-law since she is the person named as the registered owner. As the registered owner she or her heirs in case of her death may sell or convey the same to another person. However, if an implied trust is created between you, your wife and your sister-in-law, the property may be transferred to your name as the real owners thereof. It is provided under Article 1453 of the Civil Code that “when property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another or to the grantor, there is implied trust in favor of the person whose benefit is contemplated”. If you are claiming your right under an implied trust, it is proper to register the said claim by filing a sworn statement of such claim in the Registry of Deeds of the place where the property is registered (Section 68, PD. 1529, otherwise known as the “Property Registration Decree”).
The heirs of your sister-in-law may sell the property on the basis of hereditary right being the successors of the deceased if they are to rely upon the certificate of title. However, the seller cannot register his right thereto without the presentation of the owner’s duplicate of title, which is in your possession. The presentation of the owner’s duplicate of title is necessary in order to register the transactions / dealings voluntarily entered into by the registered owner in accordance with Section 53 of the Property Registration Decree. It is still best if you and your wife could communicate this matter to the heirs of your sister-in-law. If they have no objections to your claim, they may execute a deed of conveyance in your favor in order that a title may be transferred to your name. On the other hand, you have to prove the said claim based on implied trust in court in case the heirs would opposed thereto.
source: Manila Times' Column of Atty
Wednesday, January 23, 2013
Property: Does the nullity of a reconstituted lost certificate of title settle the issue of ownership of the property covered by said title?
Unsettled issue
A law each day(KEEPS TROUBLE AWAY) By Jose C. Sison (The
Philippine Star) | Updated January 23, 2013 - 12:00am
Does the nullity of a reconstituted lost certificate of title settle
the issue of ownership of the property covered by said title? This is the
question answered in this case between Nora and the spouses Montes.
Nora
was the registered owner of 11 adjacent lots covered by TCT Nos. 72654 to
72664. However, the owner’s duplicates of said titles were not in her
possession. So she reported to the Register of Deeds that she lost the owner’s
duplicate copies of said TCTs and at the same time filed a petition for the
issuance of new owner’s copies before the Regional Trial Court (RTC).
After
due notice and hearing the RTC granted Nora’s petition. Hence, new copies of
the 11 TCTs were issued to Nora pursuant to Section 129 of the Land
Registration Act.
It
turns out however that the TCTs were not actually lost but were in the actual
possession of the spouses Montes. So when they learned that new TCTs were
issued in the name of Nora, they filed with the RTC a petition for relief from
judgment asking that the new owner’s duplicate copies of the 11 TCTs be
declared null and void.
The
spouses claimed that they had actual possession of the owner’s copies of the
TCTs which had been declared lost and cancelled. They alleged that Nora had
sold the lands covered by the TCTs to a certain Mr. Lazo before it was
subdivided into 11 lots. They further alleged that when Mr. Lazo subdivided the
land into 11 lots, the titles remained in the name of Nora because Lazo lacked
funds to transfer them in his name. On March 21, 2006, Lazo sold the 11 lots to
them and gave them the 11 copies of the TCTs. They said they discovered the RTC
decision ordering the issuance of new owner’s copies to Nora when they tried to
register the properties in their names, thus prompting them to file this
petition for relief from judgment.
The
RTC granted the petition of the spouses and restrained and prohibiting the
Register of Deeds from accepting/registering any document executed by Nora and
any person authorized by her that will in any way encumber or cause the
transfer of the property covered by the 11 TCTs. The RTC also set aside its
decision granting Nora’s petition for reconstitution of titles and instead
dismissed said petition. It also declared as null and void, the new owner’s
TCTs in the name of Nora. The RTC said that “when the original owner’s copy of
the title is not lost but is in the possession of a new owner, being the
alleged buyer, it did not acquire jurisdiction over Nora’s petition for the
issuance of new owner’s copies of the eleven TCTs. Was the RTC correct?
Opinion ( Article
MRec ), pagematch: 1, sectionmatch: 1
Yes.
It is judicially settled that a trial court does not acquire jurisdiction over
a petition for the issuance of a new owner’s duplicate certificate of title if
the original is in fact not lost but in the possession of the alleged
buyer. Such reconstituted certificate is itself void once the existence
of the original is unquestionably demonstrated. Nonetheless the nullity of the
reconstituted certificate does not by itself settle the issue of ownership over
the property; much less does it vest such title upon the holder of the original
certificate. The issue of ownership must be litigated in appropriate
proceedings. It cannot be determined in an action for the issuance of a new
owner’s duplicate certificate of title or in proceedings to annul such newly
issued certificate.
In
this case, the RTC did not decide the issue of ownership when it permanently
enjoined the Register of Deeds from accepting or registering any kind of
conveyance that may be executed by Nora to any person except as to the spouses
Montes. It did not declare that the spouses Montes are the new owners of the
properties. The spouses Montes’ possession of the 11 TCTs is not necessarily
equivalent to ownership of the lands covered by the TCTs which must be
litigated in another appropriate proceeding. This case is similar to the ruling
in the case of Espino vs. Spouses Bulut, G.R. 183811, May 30, 2011.
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