Monday, February 24, 2014

Property owner has right to enjoy and dispose of property

Dear PAO,
For almost 15 years, my aunt allowed our family to stay in her house. However, my aunt now wants to evict us out of the house. Can she validly do this?
Mr. J.

Dear Mr. J,
Under the law, the owner of a property shall have the right to enjoy and dispose of a thing, without limitations other than those established by law. He shall also have a right of action against the holder and possessor of the property that he owns in order to recover it (Article 427, Civil Code of the Philippines).

Being the owner, your aunt unquestionably has the right of possession over her house. The fact that she allowed you and your family to stay there for a very long time shall not divest her of her rights over her property. Since your right to stay at the house of your aunt is dependent only on her consent or tolerance, she may validly demand from you to vacate her house if she wants to. If you and your family refuse to vacate her house despite demand, your aunt shall have the right to file an action against you for unlawful detainer pursuant to Section 1, Rule 70, Rules of Court, to wit:

Rule 70 Forcible entry and unlawful detainer
Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.

If after hearing, the court finds that the allegations in the complaint for unlawful detainer are true, it shall render a judgment in favor of the plaintiff for the restitution of the house, the sum justly due as reasonable compensation for the use and occupation of the premises, attorney’s fees and costs (Section 17, Rule 70, Rules of Court).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed 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

Tuesday, February 11, 2014

Unalienable land must remain unalienable!

Here is a question that Filipinos ought to ask themselves. When a land is declared unalienable (meaning, it is beyond the commerce of man according to the Philippine Constitution) can a Supreme Court decision declared such a land as alienable even if a great part of it is under the sea? This is the question that the people of the Municipality of Liloan 18 kilometers North of Cebu City are just beginning to ask questions, why was 92 hectares of the 500 hectare Silot Bay awarded to the family of Labor Leader Democrito Mendoza and titular head of the Associated Labor Unions (ALU)?

Perhaps a simpler question to ask is… can an ordinary man on the street a.k.a. Juan dela Cruz secure a permit from the Department of Environment and Natural Resources (DENR) and have it titled even if a great portion of the land is under water? Of course not! Even squatters who occupy land that doesn’t belong to them may occupy it…but never own it.

This is the crux of the issue… where on March 28, 2007, the Supreme Court granted ownership of a large portion of Silot Bay to the Mendoza family even if they could not occupy it because believe it or not…it was part of the tidal basin of Silot Bay and therefore unalienable. Apparently the people of Liloan Town and its Mayor Duke Frasco are up in arms about this lopsided SC Ruling granted clearly to very powerful people.

In that March 2007 decision the SC said in part, “If the titles of innocent buyers were recognized and protected in the afore-mentioned circumstances, even when the original title to the property was obtained through fraud, then the titles of the purchasers in good faith and for value of the fishpond areas in the present case better deserve our recognition and protection.”

At this point, I dare all the Supreme Court Justices who signed that order to come to Cebu City and look and see for themselves portion of Silot Bay that someone had allegedly or fraudulently sold to the Mendoza Family for the simple reason that the sea is unalienable and could never be titled. Remember the scam when someone sold the Eiffel Tower or the Brooklyn Bridge? If we based this SC ruling… then the Brooklyn Bridge would have belonged to a private individual!

In my book, if it was an ordinary man who was gypped in that allege fraudulent sale… it would have been a simple case of “caveat emptor” or Buyers Beware! But in this country where corruption is the rule rather than the exception… I dare say that the SC decision in the Silot Bay case was made “under duress” or “Sub Coercitione” after all the Associated Labor Union (ALU) is such a powerful organization and its officials can get anything it wants under any government.
Finally after six long years, the people of Liloan have awakened because the Mendoza Family started putting fences even if portion of this land is under the sea. This prompted the Municipal Council of Liloan to approve a resolution seeking a review of the Silot Bay case. Meanwhile Mayor Frasco has issued a notice of illegal construction in the setting up of the fence.

But more importantly for the people of Liloan… and yes for the Filipino people as a whole… that when it comes to titling of properties… anything that is under the sea should always remain unalienable… even if the Supreme Court says otherwise. So let’s see if the SC would make this review and give justice where justice is really due to the people of Liloan.

 (The Philippine Star) |

Wednesday, February 5, 2014

New will must contain clause that revokes previous will

Dear PAO,

I made my own last will and testament two years ago which was already notarized and given to a trusted family member. Since then, a lot has changed including my relationship with my family and the person to whom I entrusted my will died already. Because of this, I’d like to make a new last will that substantially changes the content of my old will. I’d like to know how I can make a new last will and testament that will replace the first one I made. I hope you can help me. Thanks!


Dear Glory,

The Philippine law on succession specifically provides for the manner of changing a last will and testament and replacing it with a new one. The New Civil Code of the Philippines provides that:
“Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.”

It can be seen from the above cited law that a last will and testament can be revoked either by implication of law; by physical destruction of the will with intent to revoke it; or by execution of a new will. In your case, the last one applies since you mentioned that you wish to make a new will wherein such act of making a subsequent will can have the effect of revoking your old will and rendering it ineffective.

However, mere preparation of a new will does not automatically render the old will inoperative. In order to have a valid revocation of a will by a subsequent will, it is important that: the subsequent will complies with the formal requirements in the execution of a will; the maker of the will possesses testamentary capacity; and the subsequent will must either contain express revocatory clause or is incompatible with the prior will; and that the subsequent will be also probated. (Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession, 2006)

In other words, to effectively replace the old will with a new will, the recent will must either expressly mention the intention to replace the old will, or contain provision which is incompatible with the old will as this signifies the intention to revoke the old will. This, in addition to the requirement that the last will follows the formalities set by law and be probated by Court, is what you must do to replace your old will with a new one.

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to

source:  Manila Times

The statute of frauds: More than just a handshake

WE LIVE in a society where businesses thrive and flourish based on so-called gentlemen’s agreements and adhere to a close-knit paradigm of intrapersonal relationships. Most businessmen today fail to recognize the value of a written and signed contract. While not all contracts need to be in writing and subscribed by or signed by the parties to be enforceable, the Statute of Frauds, found in paragraph 2 of Article 1403 of our Civil Code, enumerates six classes of statutes which describe transactions required by law to be in writing.

The Statute of Frauds finds its roots in the Parliament of England in the 1600s. It was then adopted in our Civil Code. The rationale behind the Statute of Frauds is to prevent fraud and perjury in the enforcement of obligations. Without a written contract, parties will depend on their sheer memory or that of their witnesses. Without any palpable evidence of the intention of the parties when the contract is executed, there is a high probability of fraud.

The first statute pertains to an agreement whose terms are not to be performed within a year from its making. In Viewmaster Construction Corp. v. Roxas (G.R. No. 133576, July 13, 2000), the Supreme Court found that a verbal agreement to act as guarantor for a loan -- only after the borrower sells 50% of his shareholdings in a corporation; and undertake a joint venture over two real estate properties -- was clear to be performed more than a year from the making thereof. As the circumstances behind the agreement fell squarely within the coverage of this statute, the verbal agreement was declared to be unenforceable.

The second statute applies to a special promise to answer for the debt, default or miscarriage of another. It must be noted however that for this statute to apply, the promise must be merely collateral. Thus, if the promisor becomes thereby primarily liable for the payment of the debt, the Supreme Court held in Reisse v. Jemije (G.R. No. 5447, March 1, 1910) that the transaction need not be made in writing to be enforceable.

The third statute involves transactions made in consideration of marriage. To clarify, this statute does not cover instances where there is a breach of a mutual promise to marry. Consequently, a groom may sue his bride for damages based on a verbal promise (Cabague v. Auxilio, G.R. No. 5028, Nov. 26, 1952). What the statute contemplates is a promise by third persons to one of the parties contemplating the marriage. In the case of Domalagan v. Bolifer (G.R. No. 8166, Feb. 8, 1916), the Supreme Court held that a father who verbally agreed and gave money to his son’s fiancĂ© cannot seek the return thereof because the agreement was not evidenced by a note or memorandum.

The fourth statute relates to sale of personal property for a price not less than P500. While this amount may be considered unsubstantial at this age and time, the value of P500 still controls, since there has been no amendment to this provision of law.

The fifth statute pertains to an agreement for a lease longer than one year. Consequently, a tenant cannot demand for the execution of a supplemental contract of lease for a period longer than of one year based on the landlord’s verbal promise.

The statute also applies to transactions involving the sale of real property or an interest therein. However, where part of the purchase price in an oral contract of sale of real estate had been paid, said partial performance takes the transaction out of the coverage of the statute. This statute only applies to interests involving a perfected contract of sale.

Lastly, the sixth statute applies to representations made to the credit of a third person. Thus, as a general rule, a representation made by a corporate officer to bind a corporation to a verbal agreement may be impugned for being unenforceable if such was not made in writing. However, such objections must be timely made and no benefit must have been derived by the corporation from the said transaction.

If the parties fail to reduce in writing their agreement, such a defect may nevertheless be ratified. Also, partial performance of any of the obligations in the agreement will no longer make it susceptible to being challenged under the Statute of Frauds.

In conclusion, knowing which transactions are covered by the Statute of Frauds is relevant to either ensure the enforceability of contractual obligations or challenge any obligation or liability not agreed upon. Clearly, the failure to present a written contract may have far reaching consequences as no evidence of the transaction will be admitted in court, unless the party enforcing presents a note or memorandum which is duly subscribed by the party obligated. In either case, it is safer to have a written contract, note or memorandum which clearly defines the terms of the obligation -- especially since, there may be instances when a handshake may not be enough.

(The author is an Associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. She can be contacted at 830-8000 or The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes and not offered as and does not constitute legal advice or legal opinion.)

source:  Businessworld

Monday, February 3, 2014

Parents can execute a will, deed of donation or sale in favor of their heirs

Dear PAO,

I would like to make a query on how my parents can transfer to me their properties while they are still living. I want to know the process on how this can be done. What are the documents that need to be prepared?

Thank you.

Dear BRG,
Article 712 of the New Civil Code (NCC) provides for the mode of acquisition of properties, thus we quote as follows:

“Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.”

Assuming that you are the only child of your parents and you are their only compulsory heir, there are several means wherein they can transfer title to their properties in your name while they are still living. They may opt to execute a Deed of Sale or a Deed of Donation in your favor. They can also make a will and have it probated while they are still living and have their properties partitioned in accordance with what they wish.

Should they desire, they can execute a Deed of Donation in your favor. Under the law, donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, NCC). In donation, the transfer of the property by the donor to the donee is gratuitous and the consideration is the donor’s graciousness, love and affection to the donee or the recipient. There is no monetary consideration for the transfer of the property in donation except for the love and affection of the donor to the donee. It is important however that the requisites for a valid donation be complied with. Article 749 of the New Civil Code provides for the requisites for a valid donation, thus:

“Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.”

If the Deed of Donation provides that the same will take effect during the lifetime of your parents then the title to the property which has been donated to you may be transferred in your name after the appropriate donor’s and transfer taxes have been paid. Aside from the execution of a valid Deed of Donation, the law requires the payment of taxes by the parties to a donation. After the payment of the required taxes, you may go to the Office of the Register of Deeds where the property subject matter of the Deed of Donation is and have the said deed registered and inscribed at the back of the title involving the said property. The registration of the Deed of Donation with the Register of Deeds is very important in order to bind third parties who are not parties to the Deed of Donation. The inscription at the back of the title to the property of the said Deed of Donation is a notice to other parties not involved in the said deed of the transfer of the property to you by your parents through an instrument called Deed of Donation. After the registration and inscription, you may take the appropriate steps so that the title to the said properties be transferred in your name.

We hope that we were able to address your query. We wish to remind you however that our opinion is based on the facts that you stated. Our 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

source:  Manila Times