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Transcript of PAREB Broker's Review Manual
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Table of Contents
Chapters Pages
I. Legal Requirements of Property Ownership
II. Code of Ethics & Responsibilities
III. Fundamentals of Property Ownership
IV. Real Estate Brokerage Practice
V. Subdivision Development
VI. Condominium Concepts & other types of Real Estate Holdings
VII. Real Estate Finance & Economics
VIII. Basic Principles of Ecology
IX. Urban& Rural land use
X. Planning, Development & Zoning
XI. Legal Aspects of Sales, Lease & Mortgage
XII. Documentation & Registration
XIII. Real Property Laws & Taxation
XIV. Other related topics
Basic Principles of Real Estate Appraisal
Site Location & Maps Reading
Public land survey
Salient features of Pag-ibig Housing Financing (HDMF)
Q&A
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I
Fundamentals of Property Ownership
REGALIAN DOCTRINE
All Lands of the public domain belong to the state*. "All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands and all other natural resources shall not be alienated. The exploration
development and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens.
x x x" [Sec. 2. Art. XII]
I. RIGHT TO OWN LAND
The right to own real estate in the Philippines is governed by: A. Constitution [1987 Philippine Constitution] and
Art.XII. Sec. 3. Philippine citizenship may be lost or reacquired in the manner provided by law.
Art. XII. Sec.4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their
act or omission they are deemed, under by law, to have renounced it.
Art.XII. Sec.7. Save in cases of hereditary succession, no private lands shall be transferred or
conveyed except to individuals, corporations or associations qualified to acquire or hold lands of the
public domain. Art. XII. Sec.8. Notwithstanding the provisions of Section 7 of the article, a natural- born citizen of the
Philippine citizenship may be transferee of private lands, subject to limitations provided by law. B. Other Special or Pertinent Laws
II. LANDS OF THE PUBLIC DOMAIN 1. Lands of the public domain are classified into:
(1) agricultural,
(2) forest or timber,
(3) mineral, and
(4) national parks.
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2. Alienable lands of the public domain shall be limited to agricultural lands. 3. Private corporations and associations may hold such alienable lands of the public domain only by lease,for a
period not exceeding 25 years, renewable for not more than 25 years, and not to exceed 1,000 has.
4. Filipino citizens may lease not more than 500 hectares, or acquire not more than 12 hectares by purchase,
homestead, or grant.
III. STEWARD CONCEPT OF OWNERSHIP Ownership carries with it a distinct social obligation. As stewards of their land, owners are obliged to use their
properties to promote not only their properties to promote not only their interest but also the general welfare.
When a person's landholdings exceed the requirements of his needs, or their utilization is not conducive to general
welfare, the state may exercise its power to regulate and control ownership.
IV. BUNDLE OF RIGHTS THEORY
This refers to the rights or attributes which are inherent in, or appurtenant to ownership, and include
the rights.
to possess
to use,
to the fruits,
to dispose, and
to recover
V. RESTRICTIONS OR LIMITATIONS TO BUNDLE OF RIGHTS
1. Government or Legal:
a. Zoning - refers to use restrictions in particular areas or the delineation of allowable uses in
particular areas.
b. Subdivision Regulations - requirements which must be complied within subdivision
specifications, etc.,
c. Police Power - the power of the state to regulate the use of the property d. Building Code - regulations pertaining to specifications such as height, setbacks
e. Eminent Domain - the power of the State to take the private property for public use upon
payment of just compensation. f. Escheat - the reversion of the State to take private property for public use upon payment of just
compensation. g. Taxation - power of the State to impose and collect tax and other charges. 2. Contractual or Voluntary: a. Lease Contract - the temporary surrender of the right to possess, use and enjoy in favor of
person who pays a consideration. b. Right of Way Easement - the right given to an owner of an adjoining land to pass or have
access thru another land. c. Usufruct - conveyance of the right to enjoy the fruits of the property.
d. Use Restrictions in Subdivision Contract
BUNDLE
OF
RIGHTS
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VI. ESTATE AND REAL ESTATE Estate - refers to the totality of the assets owned by a person which includes real estate
and personal properties.
Real State - refers to the land and all permanent improvements thereon.
VII. CONCEPT OF TITLE
"TITLE" is not synonymous with the Torrens Certificate of Title. It is a term which means evidence or proof of
ownership, such as tax declaration, realty tax receipts, deed of sales, and Torrens Certificate of Title.
The best evidence of ownership of title is the Torrens Certificate of Title because it is imprescriptible and
indefeasible. A person is deemed to have title to a property when he can exercise or has the bundle of rights over
it.
VIII. MODES OF ACQUIRING TITLE 1. Private Grant - voluntary transfer or conveyance such as sale or transfer. 2. Public Grant - acquisition of alienable public land by homestead patent, free patent,
sales patent, or other government award. 3. Involuntary Grant - acquisition against consent of owner, such as foreclosure or executive
sale. 4. Inheritance - acquisition by hereditary succession. 5. Reclamation - filling of submerged land subject to government regulations and
existing laws.
6. Accretion - acquisition of land adjoining banks of rivers due to gradual deposit of
soil.
7. Prescription - acquisition of title by actual, open continuous and uninterrupted
possession for a period of time under claim of title.
- Ten (10) years in good faith and
- Thirty (30) years if in bad faith. IX. GENERAL RULE ON OWNERSHIP OF LAND 1. Only Filipino citizens
1. By birth 2. Naturalization Process 3. Act of Congress 4. Repatriation 5. Dual Citizenship
2. Corporations or partnership at least 60% of the capital of which is owned by Filipinos are
entitled to acquire land in the Philippines.
.
NOTE: FOREIGN OWNERSHIP OF HOUSE/IMPROVEMENTS A foreigner may own a house and improvements, which may be constructed on the land owned by a
Filipino [e.g. under lease] EXCEPTIONS
1. As exceptions to the general cases to the rule, alien acquisition of real estate in the Philippines is allowed in the
following cases.
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a) Acquisition before the 1935 Constitution;
b) Acquisition by hereditary succession [LEGAL HEIR] ;
c) Purchase by aliens of not more than 40% of the units in a condominium project;
d) Purchase by former natural-born Filipino citizens, subject to the by law requirements or
limitations prescribed.
Under Batas Pambansa Bilang 185 (B.P. 185)
aa) Acquisition shall not exceed
- 1,000 square meters for urban land or
- 1 hectare for rural land to be used solely for residence of the buyer WHAT IS URBAN LAND?
Urban land shall refer to land located in an urban area. The urban areas shall include:
(1) In their entirety, all municipal jurisdictions which, whether designated or not as chartered cities,
provisional capitals, have population density of at least 1,000 persons per square kilometer;
(2) Poblaciones or central districts of municipalities and cities which have a population density of at least
500 persons per square kilometer;
(3) Poblaciones or central districts (not included in 1 and 2 above) regardless of population size which
have the following:
(a) A street pattern, i.e., a network of streets in either at parallel or right angle orientation; and
(b) At least six establishments (commercial, manufacturing, recreational and/ or personal
services); and
(c) At least three of the following:
1. A town hall, church or chapel with religious services at least once a month;
2. A public plaza or cemetery;
3. A market place or building where trading activities are carried on at least once a week; and
4. A public building like a school, hospital, puericulture and health center or library.
(d) Barangays having at least 1,000 inhabitants which meet the conditions set forth in the
preceding subparagraph [sub-par. (3)] and in which the occupation of the inhabitants is
predominantly other than farming or fishing.
Rural lands shall refer to land located in a rural area. The rural areas shall refer to all the areas of the Philippines
which do not meet the conditions set forth in the definition of urban areas in the immediately preceding paragraph
(par. 3) of this Section. (Sec. 1. IRR. BP 185)
bb) In case of married couples, one or both of them may avail of the privilege provided that the total area shall
not exceed the maximum limit.
cc) When the transferee already owns urban or rural lands for residential purpose, he shall be entitled to acquire
additional urban or rural land for residential purpose which, when added to those already owned by him shall not
exceed maximum area allowed by law.
BP 185: Mechanics for registration of transfer
No deed of conveyance in favor of a transferee under Batas Pambansa Blg. 185 shall be registered by the Register
of Deeds unless accompanied by a sworn statement showing the;
1. date and place of the transferee's birth;
2. names and addresses of his parents, of his spouse and children if any;
3. area, location and mode of acquisition of his landholdings in the Philippines if any;
4. his intention to reside permanently in the Philippines;
5. date he lost his Philippine citizenship, and
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6. country of which he is presently a citizen.
The sworn statement herein above mentioned shall be in addition to the documentary requirements prescribed as
prerequisites for the registration of titles under existing law and regulation. (Sec.4, IRR. BP 185)
Under Foreign Investments Act of 1991
e) Any natural born citizen who has lost his Philippine citizenship and who has the legal capacity to enter
into a contract under Philippine laws may be a transferee of a private land.
aa) up to a maximum area of five thousand (5,000) square meters in the case of urban land or 3
hectares in the case of rural land to be used by him for business or other purposes.
bb) In the case of married couples, one of them may avail of the privilege herein granted: provided that if
both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed.
cc) In the case of the transferee already owns urban or rural land for business or other purposes, he shall
still be entitled to be a transferee of additional urban or rural land for business or other purposes which when
added to those already owned by him shall not exceed the maximum areas herein authorized.
dd) A transferee under this Act may acquire not more than two (2) lots which should be situated in
different municipalities or cities anywhere in the Philippines: Provided. That the total land area thereof
shall not exceed
- five thousand (5,000) square meters in the case of urban land or
- three (3) hectares in the case of rural land
- for use by him for business or other purposes.
A transferee who has already acquired urban land shall be disqualified from acquiring rural land and
vice versa".(Sec.10. RA 7042 as amended by R.A 8179. Approved March 28,1996)
IMPLEMENTING RULES AND REGULATIONS OF RA 7042 (As amended by Republic Act No.8179)
SECTION 5. Land acquired under this Act shall be primarily, directly and actually used by the transferee in the
performance or conduct of his business or commercial activities in the broad areas of
1. agriculture
2. industry and
3. services,
4. including the lease of land.
but excluding the buying and selling thereof.
A transferee shall use his land to engage in activities that are not included in Negative List or in those areas
wherein investment rights have been granted to him under this Act.
2. A Filipina who married an alien retains her Philippine Citizenship (unless by her act or omission she is
deemed under the laws to have renounced her Philippine Citizenship) and may therefore acquire real estate in the
Philippines.
3. A former natural-born citizen of the Philippines who became of another country and reacquires Filipino
citizenship under R.A. No. 9225(Dual Citizenship Law).
d. DUAL CITIZENSHIP LAW [REPUBLIC ACT NO.9225 ]
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AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN
CITIZENSHIP PERMANENT, AMENDING FOR THE PURPOSE COMMONWEALTH ACT NO. 63 AS
AMENDED, AND FOR OTHER PURPOSES
Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:
SECTION1. Short Title - This Act shall be known as the "Citizenship Retention and Re-acquisition Act of
2003."
SEC.2.Declaration of Policy - It is hereby declared the policy of the state that all Philippine citizens who
become citizens of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act.
SEC.3. RETENTION OF PHILIPPINE CITIZENSHIP - Any provision of law to contrary notwithstanding,
natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization
as citizens of a foreign country hereby deemed to have reacquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:
"I , solemnly swear (or affirm) that I will support and depend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines:
and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true
faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation
or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the aforesaid oath.
SEC. 4 Derivative Citizenship - The unmarried child, whether legitimate or adopted, below 18 years of age, of
those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the
Philippines.
SEC. 5 Civil and Political Rights and Liabilities - Those who retain or reacquire Philippine citizenship under this
Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under
Sec.1,Article V of the Constitution, Republic Act No. 9189, otherwise known as the, "The
Overseas Absentee Voting Act of2003".and other existing laws. (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution and existing laws, and at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all the foreign citizenship before any public
authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, that they renounce their oath of allegiance to the country where they took
that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper
authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) Are candidates for or are occupying any public office in the country of which
they are naturalized citizens; and/or
(b) Are in active service as commissioned or non-commissioned officers in the
armed forces of the country which they are naturalized citizens.
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SEC.6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any other
or provision not affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this
Act are hereby repealed or modified accordingly.
SEC.8. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its publication in the
Official Gazette or two newspapers of general circulation.
Approved.
EFFECTIVITY : SEPTEMBER 18, 2003
PUBLICATION : SEPTEMBER 2, 2003 (Manila Times and Today)
APPROVED BY GMA : AUGUST 29, 2003
X. PROPERTY ACQUISITION AND THE AFFIDAVIT OF WAIVER
REPUBLIKA NG PILIPINAS
KAGAWARAN NG KATARUNGAN
PANGASIWAAN SA PATALAAN NG LUPAIN
(LAND REGISTRATION AUTHORITY)
East Avenue cor. NIA Road
Quezon City
In RE: Consulta
REGISTRAR of DEEDS FOR
PUERTO PRINCESA CITY,
Petitioner. CONSULTA No. 3543
CONSULTA No. 3554
X***********************X
R E S O L U T I O N
May a Filipina who contracted marriage with an alien husband after the passage of the Family Code and
has acquired real property in the Philippines through a Deed of Absolute Sale register the same in her own
exclusive name? This is the very issue that this consulta seeks to resolve.
The instant case actually involves two months (2) consultas. These consultas were consolidated
considering they were mistakenly docketed separately, they actually involve the same issues, the same set of
documents sought to be registered, the same property and the same parties.
From the records of case, the facts are as follows:
On April 27, 1999,Nelly Rodriguez, A Filipino citizen, and Estratios N. Varsamos, a Greek national got
married without an ante-nuptial agreement at the Greek Embassy in the country of Abu Dhabi. That, sometime in
July 4, 2002,Nelly Rodriguez-Versamos bought a parcel of land described as Lot No. 3787 of Pls - 1117-D with
an area of 30,355 sq. m. located at Brgy Luzvminda, Puerto Princesa City, covered by OCT No. 568 issued by the
Register of Deeds of Puerto Princesa City. The Deed of Absolute Sale executed by the registered owner, Joseph
Ibanez Genon dated July 4, 2002 in favor herein petitioner, was presented for registration to the Register of Deeds
who however entertained doubts as to its registrability in view of Consulta No. 2738 promulgated on June
30,2000,wherein this Authority ruled against the registration of a sale in favor of a Filipina who is married to a
foreigner on the ground that, under the Family Code, in the absence of an agreed property regime, the spouses are
deemed to have adopted an absolute community property regime. Under this system, which supposedly makes the
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foreigner spouse a co-owner of real property acquired by the Filipino spouse, the constitutional fiat prohibiting
aliens from acquiring lands in the Philippines should apply.
Hence, this Consulta.
The seeming complication was brought about by the advent of Article 93 of the Family Code which
pertinently provides that;
Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that
it one of those excluded therefrom.
From the aforequoted provision of law, it is clear that under the regime of absolute community, all properties
acquired during marriage are presumed to belong to the community. Pescinding from the basic principle. It is
axiomatic, that all properties acquired by either spouse during the existence of that absolute community, shall be
presumed to be co-owned by both spouses, such that a foreigner husband married to a Filipina wife shall be a co-
owner with respect to that property. That presumption of co-ownership is however merely created by fiction law.
As a matter of fact, Article 90 of the Family Code even provides that: "The provision on co-ownership shall
apply to the absolute community of property between the spouses in all matters not provided in this Chapter".
However, that "[T]he partnership having been created by law, it has no object and it is unsafe to extend it on
pretext of tacit consent."(Gutierrez, 3d Ed., vol. 1,p. 579, cited in Nable Jose,41 Phil. 713) "Which means that
either of the spouses holds merely an inchoate right over the co-owned property, a mere right of expectancy,
because of it will be discovered during the liquidation of the marriage that there is no absolute community
property to be divided, there will be no share for either husband or the wife" (supra). Moreover, as Article 93 of
the family Code further provides, the presumption of co-ownership of properties acquired during the existence of
the absolute community is a rebuttable one, "unless it is proved that it is one of those (properties) excluded there
from." Thus, if a Filipina spouse buys a certain real property in the Philippines under her name she acquired the
same in her personal individual capacity and intends to put the same under her individual name, not under the
legal fiction of the Absolute community. Stated otherwise, her marriage to an alien spouse merely created a legal
presumption of co-ownership which will not in anyway deprive her of her right to acquire real properties in the
Philippines in her own right.
A natural born citizen's right to acquire real property is a basic right enshrined in the constitution. In this
regard, the interplay of four (4) basic constitutional provisions should be enlightening, thus:
Art.XII. Sec.3. Philippine citizenship may be lost or reacquired in the manner provided by law.
Art.XII. Sec.4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced it.
Art.XII. Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except
to individuals, corporations or associations qualified to acquire or hold lands of the public domain
Art.XII.Sec.8. Notwithstanding the provisions of Sec.7 of this article, a natural-born citizen of the Philippines who
has lost his Philippine citizenship may be transferee of private lands, subject to limitations provided by law.
Certainly in the case at bar, there is no showing that the registrant Filipina spouse is not qualified to own real
property in the Philippines nor it is shown that she possesses any of the disqualification. The fact that she
married a Greek husband does not automatically make her Greek. The Constitution requires a positive act of
renunciation of citizenship, i.e, by naturalization in a foreign state or by taking an oath of allegiance to a foreign
country, before a Filipino citizen may lose his citizenship. None of these conditions are obtaining in the instant
case.
Applying now these constitutional provisions in relation to the provisions in the relation to the Family Code
provision cited above, it goes without saying that if we deny registration of a Deed of Sale of land in favor of the
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Filipina spouse by mere reason that it shall ultimately redound to the benefit of the absolute community which as
discussed earlier, is a mere legal fiction of co-ownership. Certainly this is an absurd spectacle. A regime of
absolute community of property has no citizenship. This is not within preview of the constitutional prohibition
against aliens owning lands in the Philippines. We should not be confused that here, it is the Filipina wife who is
buying the land and not the absolute community regime.
It is so fundamental in our jurisdiction that a mere statutory provision of law cannot constrict, delimit or
otherwise expand a basic constitutional principle. To deny the Filipina wife the registration of her Deed of Sale is
a direct affront on her basic constitutional right as it will unnecessarily constrict and unjustly deprive her of her
right to own lands in the Philippines. The Family Code cannot prevail over the constitution in view of the basic
principle in law that the Constitution, being the supreme law of the land, all other laws must be subordinate to it.
In addition, the denial of registration of a Deed of Sale of land in favor of the Filipina spouse married to a
foreigner is a great inequity which evens the Constitution looks upon with disfavor. In this regard, it is apropos to
mention Section 8 &Art.XII of the Constitution, which provides that even natural born Filipino citizen who has
lost his/her citizenship may still acquire lands or be a transferee of private lands in the Philippines, subject to
limitations provided by law. A still valid law - Batas Pambansa Bilang 185- implements the constitutional
provision as it allows a former Filipino citizen who has lost and or renounced his Filipino citizenship, to be a
transferee of private land in the Philippines, subject to certain limitations. Applying the statutory provision in the
case at bar, we will be placing the Filipina registrant who has not lost her citizenship nor renounced her Filipino
citizenship at a rather iniquitous and lesser standing if we deny registration of her title.
The Authority is not unaware in the past, it has accepted practice that before a Filipino a wife married to an
alien husband registers a real property under her name , the Registrar of Deeds, as a matter of pre-requisite,
requires that an "Affidavit of Waiver of Rights" executed by the foreigner spouse must also be presented. This
authority finds that such requirement finds no basis in law as it directly collides with Article 89 of the Family
Code which provides that "no waiver of rights, interests, shares and effects of the absolute community of property
during the marriage can be made except in judicial separation property" or "after the marriage has been dissolved
or annulled". This provision precisely applies to voluntary waiver, the reason being to avoid undue influence
between the spouses, and does not, therefore, affect judicial transfers. Thus, in the light of the foregoing
ratiocination, we opine that the requirement of such "Affidavit of the Waiver of Rights" has become a mere
surplus age as it serves no useful purpose, other than being void.
WHEREFORE, in view hereof, this Authority rules and so holds that the Deed OF Absolute Sale covering
transfer of lot No. 3787, Pls-1117D with an area if 20,355 sq. m. located at Luzvminda, Puerto Princesa City,
covered by OCT No. 568 in favor of Nelly Rodriguez Versamos, is registrable, provided that all requirements for
its registrability are complied with.
Consulta No. 2738 and all other consultas inconsistent with this ruling are deemed to be abandoned and or
superseded.
SO ORDERED.
Quezon City, Philippines, March 12, 2003
HON. BENEDICTO B. ULEP
Administrator
XI. SELECTED SUPREME COURT CASES
ACQUISITION OF LAND BY FOREIGNERS
1. G.R. No. L-630 November 15, 1947
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ALEXANDER A. KRIVENKO vs. THE REGISTER OF DEEDS, CITY
OF MANILA, respondent and appellee.
PERTINENT PORTIONS OF DECISION IN KRIVENKO vs. REGISTER OF DEEDS
"Section 7, Article XII of the 1987 Constitution states:
Save in the cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain.
Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence,
they are also disqualified from acquiring private lands. The primary purpose of the constitutional provision is the
conservation of the national patrimony. In the case of Krivenko v Register of Deeds, the Court held:
Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of public agricultural
land, shall not be alienated," and with respect to public agricultural lands, their alienation is limited to Filipino
citizens. But this constitutional purpose conserving agricultural resources in the hands of Filipino citizens may
easily be defeated by the Filipino citizens themselves who may alienate their agricultural lands in favor of aliens.
It is partly to prevent this result that section 5 is included in Article XIII, and it reads as follows;
"Sec.5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned except
to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the
Philippines."
This constitutional provision closes the only remaining avenue through which agricultural resources may leak into
aliens' hands. It would certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all,
they may be freely so alienated upon their becoming private agricultural lands in the hands of Filipino citizens. x
x x
x x x x
If the term "private agricultural lands" is to be construed as not including residential lots or lands not strictly
agricultural, the result would be that " aliens may freely acquire and possess not only residential lots and houses
for themselves but entire subdivisions, and whole towns and cities," and that " they may validly buy and hold in
their names lands of any area for buildings homes, factories, industrial plants, fisheries, hatcheries, schools, health
and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes that are
not, in appellant's words strictly agricultural." (Solicitor General's Brief, p.6.) That this is obnoxious to the
conservative spirit of the Constitution is beyond question."
- - - - - - - - - -0- - - - - - - - - -
2. BORROMEO VS. DESCALLAR
G.R. No. 159310, February 24, 2009
"WHAT ARE THE RIGHTS OF A FOREIGNER WHO ACQUIRED LAND VS. FILIPINA GIRLFRIEND IN
WHOSE NAME THE TCT WAS PLACED UNDER
This is the issue discussed by the Supreme Court in the case of Borromeo vs. Descallar, G.R. No. 159310,
February 24, 2009.
The facts are stated in the decision are:
Jambrich, an Austrian arrived in the Philippines in 1983 being assigned in the country and was transferred to
Cebu and met and fell in love with a separated Filipina [herein referred to as respondent with two kids and who
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had no means of livelihood. Thereafter, they bought their house and lots but the Register of Deeds refused
registration of the Deed of Absolute Sale on the ground that Jambrich was an alien and could not acquire alienable
lands of the public domain and therefore his name was erased and the titles issued in the name of the Filipina.
In 1986, Jambrich sold his rights and interests in the said property to a Filipino buyer, Borromeo, [the petitioner in
this case] to pay for his debt but when Borromeo sought to register the deed assignment, he discovered that the
titles to the lots had been transferred to the name of the Filipina and that the same had been mortgaged.
The buyer, Borromeo then filed a complaint for recovery of the properties. The Filipina girlfriend claimed that she
bought it with her own funds and that Jambrich being a foreigner, was not entitled to own a land in the
Philippines. The Regional Trial Court rendered a decision in favor of the buyer and declared him to be the owner
of the properties since the facts show that the Filipina had no means of livelihood or funds to have bought the
property.
The Filipina appealed and the decision was reversed by the Court of Appeals stating that the foreigner Jambrich,
could not have acquired land being a foreigner.
The buyer, Borromeo, appealed by way of petition to the Supreme Court which stated the issues;
1. Who purchased the subject properties?
2. What is the effect of registration of the properties in the name of the Filipina?
In upholding the decision of the lower court, the Supreme Court stated:
The evidence presented showed that Jambrich had all the authority to transfer all his rights, interests and
participation in the subject properties by the virtue of the Deed of Assignment to the buyer, Borromeo, as it was
shown that the funds to purchase the properties came from the Jambrich, who was therefore the true buyer of the
property, and
"Further, the fact that the disputed properties were acquired during the couple's cohabitation does not help the
respondent. The rule that co-ownership applies to a man and woman living exclusively with each other as
husband and wife without the benefit of marriage, but otherwise capacitated to marry each other does not apply.
In the instant case, the respondent was still legally married to another when she and Jambrich lived together. In
such adulterous relationship, no co- ownership exists between the parties. It is necessary for each of the partners
to prove his or her actual contribution in the acquisition of property in order to be able to claim any portion of it.
Presumptions of co- ownership and equal contribution do not apply."
As to the registration of the properties in the name of the Filipina, the Supreme Court said,
"It is settled that the registration is not a mode of acquiring ownership. It is only a means of confirming the fact of
its existence with notice to the world at large. Certificates of title are not a source of right. The mere possession of
a title does not make one true owner of the property. This is the situation in the instant case. Respondent did not
contribute a single centavo in the acquisition of the properties. She and her two properties were then fully
supported by Jambrich."
As to the capacity of Jambrich, being an alien, to acquire land, the Supreme Court said,
"xxxx the transfer of land to Jambrich, who is an Austrian, would have been declared invalid if challenged, had
not Jambrich conveyed the properties to petitioner who is a Filipina citizen. xxxxxx
-
The rationale behind the Court's ruling in the United Church Board for World Ministries, as reiterated in the
subsequent cases, is this - since the ban on aliens is intended to preserve the nation's land for future generations of
Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who became Filipino
citizens by naturalization or those transfers made by aliens to Filipino citizens. As the property in dispute is
already in the hands of a qualified person, a Filipino citizen, there would be no more public policy to be protected.
The objective of the constitutional provision to keep our lands in Filipino hands has been achieved."
3. MULLER VS. MULLER, G. R. No. 149625, August 29, 2006
IN REPITITION FOR
SEPARATION OF PROPERTY
ELENA BUENAVENTURA MULLER,
-versus-
HELMUT MULLER,
"Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence,
they are also disqualified from acquiring private lands. The primary purpose of the constitutional provision is the
conservation of the national patrimony. In the case of Krivenko vs. Register of Deeds, the Court held:
xxxxxx
Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity where it is clear that he
willingly and knowingly bought the property despite the constitutional prohibition.
Further, the distinction made between transfers of ownership as opposed to recovery of funds is a futile exercise
on respondent's part. To allow reimbursement would in effect permit respondent to enjoy the fruits of a property
which he is not allowed to own. Thus, it is likewise prescribed by law. As expressly held in Cheesman v.
Intermediate Appellate Court:
4. CHEESEMAN VS. INTERMEDIATE APPELLATE COURT
G.R. No. 74833 January 21, 1991
THOMAS C. CHEESEMAN, petitioner, vs.
INTERMEDIATE APPELLATE COURT:
Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973
Constitution ordains that, "Save in cases of hereditary succession, no private land shall be transferred or conveyed
except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain."
Petitioner Thomas Cheeseman was, of course, charged with knowledge of this prohibition. Thus, assuming that it
was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the
property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and
clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. In any event, he had
and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory
that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain
such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be
declared conjugal, this would accord in the alien husband a not substantial interest and right over land, as he
would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not
permit him to have.
As already observed, the finding that his wife had used her own money to purchase the property cannot and will
not at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used
conjugal funds to make the acquisition, the considerations just set out to militate on high constitutional grounds,
against his recovering and holding the property so acquired, or any part thereof. And whether in such an event, he
may recover from his wife any share of the money used for the purchase or charge her with unauthorized
disposition or expenditure of conjugal funds is not now inquired into, that would be, in the premises, a purely
academic exercise. (Emphasis added)
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XII. LEASING OF REAL PROPERTIES BY FOREIGNERS [SALIENT FEATURES]
REPUBLIC ACT NO.7652
AN ACT ALLOWING THE LONG-TERM LEASE OF PRIVATE LANDS BY FOREIGN INVESTORS
Section 1. Title This Act shall be known as the "Investors' Lease Act".
Sec.2. Declaration of Policy It is hereby declared the policy of the State to encourage foreign investments consistent with the constitutional mandate to conserve and develop our own patrimony. Towards this end, the
State hereby adopts a flexible and dynamic policy of the granting of long-term lease on private lands to foreign
investors for the establishment of industrial estates, factories, assembly or processing plants, agro-industrial
enterprises, land development for industrial, or commercial use, tourism and other similar priority productive
endeavors.
Sec.3. Definitions For purposes of this act, unless the context indicates otherwise, the term: (1) "Investing in the Philippines" shall mean making an equity investment in the Philippines through actual
remittance of foreign exchange or transfer of assets, whether in the form of capital goods, patents,
formulas or other technological rights or processes, upon registration with the Securities and Exchange
Commission; and
(2)" Withdrawal of approved investment" shall mean either: (a) the failure to operate the investment project for
any three (3) consecutive years; or (b) outright abandonment of the investment project at any time during the
approved lease period: Provided, that failure to pay lease rental for three (3) consecutive months coupled with the
failure to operate the investment project for the same period shall be deemed as outright abandonment of the
project.
Sec.4. Coverage Any foreign investor investing in the Philippines shall be allowed to lease private lands in accordance with the laws of the Republic of the Philippines subject to the following conditions:
(1) No lease contract shall be for a period exceeding fifty (50) years, renewable once for a period of not
more than twenty-five (25) years;
(2) The leased area should solely for the purpose of the investment upon the mutual agreement of the parties;
(3) The leased premises shall comprise such area as may reasonably be required for the purpose of the
investment subject however to the Comprehensive Agrarian Reform Law and the Local Government Code.
The leasehold right acquired under long-term lease contracts entered into pursuant of this Act may be sold,
transferred, or assigned: Povided. That when the buyer, transferee, or assignee is a foreigner or a foreign-owned
enterprise, the conditions and limitations in respect to the used of the leased property as provided for under this
Act shall continue to apply.
Sec.5. Limitations (1) Foreign individuals, corporations, associations, or partnerships not otherwise investing in the Philippines as defined herein shall continue to be covered by Presidential Decree No. 427 and other existing
laws in lease of lands to foreigners.
(2) Withdrawal of the approved investment in the Philippines within the period of the lease agreement
entered into under this Act, or use of the leased area of the purpose other than that authorized, shall
warrant the ipso facto termination of the lease agreement without the prejudice to the right of the lessor to be
compensated for the damages he may have suffered thereby.
-
(3) Any lease agreement under this Act which is renewable at the option of the lessee subject to the same
terms and conditions of the original contract shall be interpreted to mean as renewable upon the mutual
agreement of the parties.
(4) In addition to the conditions for the renewal of a lease agreement after the period of fifty (50) years as
provided herein, the foreign lease shall show that it has made social and economic contributions to the
country.
(5) In the case of tourism projects, lease of private lands by foreign investors qualified herein shall be
limited to projects with an investment of not less than five million (5M) US dollars, seventy percent
(70% ) of which shall be infused in said project within three years from the assigning of the lease contract, Chan
Robles virtual library.
Sec. 6 Termination of Lease Contract The Secretary of Trade and Industry shall terminate any lease contract entered into under the provisions of this Act, if the investment project is not initiated within three (3) years from
the signing of the lease contract.
Approved: June 4, 1993
SUPREME COURT CASES INVOLVING
LEASE OF LAND/FOREIGNERS
Matthews vs. Taylor, G.R. 164584, [June 22, 2009],
IS THE LEASE OF REAL PROPERTY IN THE NAME OF THE FILIPINA WIFE VALID WITHOUT THE
CONSENT OF THE FOREIGN HUSBAND?
It is not the uncommon that real property is placed under the name of the Filipina wife who married to a foreigner
in as much as a foreigner cannot own land in the Philippines save only in constitutionally recognized exceptions.
In such a case, may the Filipina wife lease out the property without the consent of the foreign husband?
In the Supreme Court case of Matthews vs. Taylor, G.R No. 164584, [June 22, 2009], this issue was raised
wherein the Supreme Court resolved the issue of whether the contract of lease entered into by the Filipina wife
over real property is valid despite the absence of consent of the foreign husband. The facts as stated in the
decision are as follows:
"On June 30, 1988, respondent, Benjamin A. Taylor (Benjamin), a British subject, married Joselyn C. Taylor
(Joselyn), a 17- year old Filipina. On June 9, 1989, while their marriage was subsisiting, Joselyn from Diosa M.
Martin a 1,294 square-meter lot ( Boracay property) situated at Manoc-Manoc, Boracay Island, Malay Aklan, for
and in consideration of P129,000.00. The sale was allegedly financed by Benjamin. Joselyn and Benjamin, also
using the latter's funds, constructed improvements thereon and eventually converted the property to a vacation
and tourist resort known as the Admiral Ben Bow Inn. All required permits and licenses for the operation of the
resort were obtained in the name of Ginna Celestino, Joselyn's sister.
However, Benjamin and Joselyn had a falling out, and Joselyn ran away with Kim Philippsen. On June 8, 1992.
Joselyn executed a special power of Attorney (SPA). In favor of Benjamin, authorizing the latter to maintain, sell,
lease, and sub-lease and otherwise enter into the contract with third parties with respect to their Boracay property.
On July 20, 1992, Joselyn, as lessor and petitioner Philip Matthews as lessee, entered into an Agreement of Lease
(Agreement) involving the Boracay property for a period of 25 years, with an annual rental of P 12,000.00. The
agreement was signed by the parties and executed before a Notary Public. Petitioner thereafter took possession of
the property and renamed the resort as Music Garden Resort.
Claiming that the Agreement was null and void since it was entered into by Joselyn without his (Benjamin's)
consent, Benjamin instituted an action of Declaration of Nullity of Agreement of Lease with Damages against
Joselyn and the petitioner. Benjamin claimed that his funds were used in the acquisition and improvement of the
-
Boracay property, and coupled with the fact that he was Joselyn's husband, any transaction involving the said
property required his consent."
Was the lease entered into by the Filipina wife without the consent of her foreign husband valid?
To this the Supreme Court said,
"In fine, we are called upon to determine the validity of an Agreement of Lease of a parcel of land entered into by
a Filipino wife without the consent of her British husband. In addressing the matter before us, we are confronted
not only with civil law or conflicts of law issues, but more importantly, with a constitutional question.
It is by undisputed that Joselyn acquired the Boracay property in 1989. Said acquisition was evidenced by a Deed
of Sale with Joselyn as the vendee. The property was also declared for taxation purposes under her name. When
Joselyn leased the property to petitioner, Benjamin sought the nullification of the contract on two grounds; first,
that he was the actual owner of the property since he provided the funds used in purchasing the same; and second,
that Joselyn could not enter into a valid contract involving the subject property without consent. x x x
Citing several decisions on the matter, the Supreme Court reiterated that, 'The rule is clear and inflexible; aliens
are absolutely not allowed to acquire public or private lands in the Philippines, save only in constitutionally
recognized exceptions. There is no rule more settled than this constitutional prohibition, as more aliens attempt to
circumvent the provision by trying to own lands through another. xxxxxx
It therefore ruled as follows;
xxxxxx
In the light of the foregoing jurisprudence, we find and so hold that Benjamin has no right to nullify the
Agreement of Lease between Joselyn and petitioner. Benjamin, being an alien, is absolutely prohibited from
acquiring private and public lands in the Philippines. Considering that Joselyn appeared to be the designated
"vendee" in the Deed of Sale of said property, she acquired sole ownership thereto. This is true even if we sustain
Benjamin's claim that he provided the funds for such acquisition. By entering into such contract knowing that it
was illegal, no implied trust was created in his favor; no reimbursement for his expenses can be allowed; and no
declaration can be made that the subject property was part of the conjugal/community property of the spouses. In
any event, he had and has no capacity or personality to question the subsequent lease of the Boracay property by
his wife on the theory that in so doing, he was merely exercising the prerogative of a husband in respect of the
conjugal property. To sustain such a theory would countenance in direct controversion of the constitutional
prohibition. If the property were to be declared conjugal, this would accord the alien husband a substantial interest
and right over the land, as he would then have decisive vote as to its transfer or disposition. This is a right that the
Constitution does not permit him to have.
In fine, the Agreement of Lease entered into between Joselyn and petitioner cannot be nullified on the grounds
advanced by Benjamin. Thus, we uphold its validity."
- - - - - - - - - - - - - - -0- - - - - - - - - - - - - -
BASIC PROPERTY RELATIONS UNDER THE FAMILY CODE
EFFECTIVITY OF THE FAMILY CODE: AUGUST 03, 1988
1. BASIS OF PROPERTY RELATIONS UNDER THE FAMILY CODE
Art. 74: Family Code
1. By marriage settlements executed before the marriage
2. By provisions of this Code
-
3. By the local custom
2. Property Relations that may be agreed upon by future spouses in marriage settlement
I. Absolute Community of Property
II. Relative Community of Property or Conjugal Partnership of Gains
III. Complete Separation of Property
IV. Upon any other regime that may be agreed upo
In the absence of marriage settlements or when the same are void, the property relations shall be
governed as provided for below.
3. Property Relations without Marriage Settlement
Before the Family Code CONJUGAL PARTNERSHIP OF GAINS
Under the FAMILY CODE
(Effective August 3, 1988) ABSOLUTE COMMUNITY OF PROPERTY
4. ESSENTIAL FEATURES OF THE TYPES OF PROPERTY RELATIONS
1. CONJUGAL PARTNERSHIP OF GAINS
Conjugal partnership of gains presupposes that there are properties which are to be considered
conjugal and therefore owned both by the husband and the wife, while there are those properties which
still belong exclusively to each of the spouses over which they exercise exclusive ownership and
administration.
CONJUGAL PROPERTIES
The following are considered conjugal properties;
(1) Those acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of
the spouses;
(3) The fruits, natural, industrial or civil, due or received during the marriage from the
common property, as well as the net fruits from the exclusive property of each
spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or
owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of
each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting.
However, losses therefrom shall be borne exclusively by the loser-spouse, (153a,
154,155,159)
-
PRESUMPTION OF BEING CONJUGAL PROPERTY
Art. 116. All property acquired during the marriage, whether the acquisition appears to have been,
contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the
country is proved.
ADMINISTRATION AND ENJOYMENT OF CONJUGAL PROPERTY
Art. 116. The administration and enjoyment of the conjugal partnership shall belong to both spouses
jointly. In case of disagreement, the husband shall prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration
of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without authority of the Court or the written consent of the other spouse.
In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by
the Court before the offer is withdrawn by either or both offerors.
EXCLUSIVE PROPERTIES
The following properties are considered as exclusive, paraphernal or belonging only to one of the spouse:
1. That which is brought to the marriage as his or her own;
2. That which each acquires during the marriage by gratuitous or lucrative title.
3. That which is acquired by right of redemption or by exchange with other property belonging to
only one of the spouse and;
4. That which is purchased with the exclusive money of the wife or the husband.
The general rule is that the conjugal properties cannot be alienated without the consent of both spouses;
while respect to exclusive properties, the owner thereof can alienate the same without the consent of the other
spouse.
EFFECTS OF SEPARATION IN FACT
Art.127. The separation in fact between the husband and wife shall not affect the regime of
conjugal partnership, except that;
(1) The spouse, who leaves the conjugal home or refuses to live therein, without just cause, shall not
have the right to be supported.
(2) When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both spouses
shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a
summary proceeding, be given judicial authority to administer or encumber any specific property of the
other spouse and use the fruits or proceeds thereof to satisfy the latter's share.
ABSOLUTE COMMUNITY OF PROPERTY
Absolute Community of Property presupposes that all the present and future properties of the spouses
shall be considered as belonging jointly to the husband and wife except the following;
1. Property acquired by gratuitous title by either spouse when it is provided by the donor or
testator that it shall not become part of the community property;
-
2. Property inherited by either husband or wife through the death of a child by a former
marriage, there being brothers and sisters of the full blood of the deceased child;
3. A portion of the property of either spouse equivalent to the presumptive legitimate of the
children by a former marriage; and 4. Personal belongings of either spouse. The ownership, administration and usufruct of the community property pertain to the
spouses jointly.
WAIVER OF RIGHTS
Art. 89. No waiver of rights, shares and effects of the absolute community of property during the
marriage can be made except in the case of judicial separation of property.
When the waiver takes place upon a judicial separation of property, or after the marriage has been
dissolved or annulled, the same shall appear in a public instrument and shall be recorded as
provided in Article 77. The creditors of the spouse who made such waiver may petition the Court to
rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (146a)
PRESUMPTION OF ABSOLUTE COMMUNITY PROPERTY
Art. 93. Property acquired during the marriage is presumed to belong to the community unless it is
proved that it is one of those excluded therefrom.
OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND DISPOSITION OF COMMUNITY
PROPERTY
Art. 96. The administration and enjoyment of the community property shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife
for proper remedy, which must be availed of within five years from the date of the contract implementing such
decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration
of the common properties, the other spouse may assume sole powers of administration. These powers do not
include disposition or encumbrance without authority of the court or the written consent of the other spouse.
In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by
the Court before the offer is withdrawn by either or both offerors. (206a)
DONATION BY SPOUSE Art.98. Neither spouse may donate any community property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing or family distress.
III. COMPLETE SEPARATION OF PROPERTIES
If the spouse before the marriage agree on complete separation of properties, the separation may refer to
both present and future properties or it may be total or partial.
The ownership, administration and usufruct of those properties which are considered separate pertain
to the spouse to whom they belong.
Each spouse shall proportionately bear family expenses.
RIGHT TO DISPOSE, POSSESS, ADMINISTER EXCLUSIVE PROPERTY
Art. 145. Each spouse shall own, dispose of , possess, administer and enjoy his her own separate estate,
without need of the content of the other. To each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage
from his or her separate property.
-
RIGHT OF SPOUSE OVER EXCLUSIVE PROPERTY Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their
exclusive properties.
Either spouse may, during the marriage, transfer the administration of his or her exclusive
property to the other by means of a public instrument, which shall be recorded in the registry of
property of the place the property is located. (137a, 168a, 169a)
Art.111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in the court to litigate
with regard to the same.
SEPARATION OF PROPERTY DURING MARRIAGE
Art.134. In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place except by judicial order. Such judicial
separation of property may either be voluntary or for sufficient cause. (190a)
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property;
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has abused that
power; and
(6) That at the time of the petition, the spouses have been separated in fact for atleast one year and
reconciliation is highly improbable.
IV. ANY OTHER REGIME
Ex. Dowry system
MARITAL CONSENT IN DEED OF SALE
1. Marital consent is required, a) when the property relations between the spouse is one of absolute community and the
property is community property; or
b) when the property relations between the spouses is one of the conjugal partnership and
the property involved was acquired by onerous title during the marriage at the expense of
the common fund.
2. Marital consent is NOT necessary a) when the property relations between the spouses is one of absolute separation; or
b) when the property relations between the spouses is one of conjugal partnership and the
property involved;
1. was brought into the marriage by either of the spouses [property nomenclature]
husband's exclusive property - capital wife's exclusive property - paraphernal
2. was acquired by either of the spouses by inheritance; or
3. was acquired with exclusive funds of either of the spouses.
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PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
Art. 147. When a man and woman who are capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co- ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired
during cohabitation and owned in common, without the consent of the other, until after the termination of
their cohabitation.
When only one of the parties to void marriage is in good faith, the share of the party In bad faith in the co- ownership shall be forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their descendants, each vacant share shall belong to the
respective surviving descendants. In all cases, the forfeiture shall take place upon termination of the
cohabitation. (144a)
COHABITATION WITH MARRIED PERSON EFFECT ON PROPERTY ACQUIRED Art. 148. In case of cohabitation not falling under the preceding Article only the properties acquired by
both of the parties through their actual joint contribution of money, property, or industry shall be owned
by them in common in proportion to their respective contributions.
In the absence of proof to the contrary, their contributions and corresponding shares are presumed
to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue
to the absolute community or conjugal partnership existing in such valid marriage. If the party who
acted in bad faith is not validly married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on the forfeiture shall likewise even if both parties are in bad faith.
LEGITIMATE AND ILLEGITIMATE CHILDREN
LEGITIMATE CHILDREN
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband
or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that
both of them authorized or ratified such insemination in a written instrument executed and signed
by them before the birth of the child. The instrument shall be recorded in the civil registry
together with the birth certificate of the child. (55a.25a)
ILLEGITIMATE CHILDREN
Art.165.Children conceived and born outside a valid marriage are illegitimate, unless otherwise
provided in this code.
SURNAME OF ILLEGITIMATE CHILD UNDER FAMILY CODE
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Illegitimate children shall use the surname and shall be under the parental authority of their mother,
and shall be entitled to support in the conformity with this Code.
The legitime of each illegitimate child shall consist of one-half of a legitimate child. Except for this
modification, all other provisions in the civil code governing successional rights shall remain in
force. [Art. 176]
AS AMENDED BY RA 9225
REPUBLIC ACT No. 9225
February 24, 2004
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR FATHER,
AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO.209.OTHERWISE KNOWN
AS THE "FAMILY CODE OF THE PHILIPPINES"
SECTION 1.Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is
hereby amended to read as follows:
"Article 176 Illegitimate children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in the conformity with this code. However, illegitimate children
may use the surname of their father if their filiation has been
1. expressly recognized by the father through the record of birth appearing in the civil register, or
2. when an admission in a public document or
3. private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to prove non- filiation
during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate
child."
Approved: February 24, 2004
REPUBLIC ACT. NO. 9858
AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS BELOW
MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE PHILIPPINES, AS
AMENDED
Section1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code of the Philippines" as
amended, is hereby further amended to read as follows:
"Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception of
the former, were not disqualified only because either or both of them were below eighteen (18) years of age, may
be legitimated."
"Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation."
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Approved: DEC. 20, 2009
II
CODE OF ETHICS and RESPONSIBILITIES
REAL ESTATE SERVICE/IRR PROVISIONS ON THE CODE OF ETHICS AND RESPONSIBILITIES
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SEC. 5. Powers and Functions of the Board. - The Board is hereby vested the following powers and
functions:
xxxxxx
F. Adopt a national Code of Ethics and Responsibilities to be strictly observed all licensed real
estate service practitioners:
xxxxxx
SEC.35. Code of Ethics and Responsibilities for Real Estate Service Practitioners. - The Board shall
adopt and promulgate the Code of Ethics and Responsibilities for real estate service practitioners which shall be
prescribed and issued by the accredited and integrated professional organization of real estate service
practitioners. / Secs. 5f and 35, also of IRR of RESA. /
NATIONAL CODE OF ETHICS FOR THE REALTY SERVICE PRACTICE
INTRODUCTION
The Realty Service Practice, a profession, calling or occupation, is dedicated to the promotion,
development including proper zonification and conservation of land and natural resources, including
improvements and rights and interests appurtenant thereto for the benefit and enjoyment of the Filipino people. As
such, those engaged therein are bound by a code of conduct, morals, and values in the performance of their and
obligations towards the obligations towards the government co-practitioners and the people they serve.
It is, therefore, imperative and necessary to adopt this NATIONAL CODE OF ETHICS for REALTY
SERVICE PRACTICE to govern the role of conduct of those who will engage therein.
ARTICLE1. DECLARATION OF PRINCIPLES
SECTION1. - The Realty Service Practice is a noble profession, calling or occupation and those engaged
therein shall abide by and comply with all the laws, decrees, orders and rules and regulations enacted or
promulgated by duly constituted government authorities.
SECTION2 - Utmost fidelity, sincerity, respect for colleagues in the profession, and honesty shall be
observed at all times by those in the realty service practice in their relation client, the community and the nation in
general.
SECTION3 - Adequate knowledge, competence and expertise in real estate development and
management; and the upgrading of the standards of practice shall be affected when need arises; all these for, and
in the interest of the social and economic progress of the country.
SECTION4 - The spirit of camaraderie, cooperation and professional relationship by respecting the rights
of the other practitioners shall be promoted, and every organization to which they shall be encouraged to join shall
have such aims and purposes as it will set up, upgrade, and maintain a high level of integrity, honesty and
competence in the profession for the best interest the community and the nation.
SECTION5 - A high level of professional and respect relationship with colleagues in the Realty Service
Practice shall be maintained, and their dealings with each other shall always be fair, honest and just.
SECTION 6 - The Golden Rule which reads; "Treat others as you like them to treat you" shall be
observed in all the dealings and relation of the practitioners with clients, fellow practitioners, the organization to
which they belong and the general public.
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ARTICLE II. SCOPE AND PURVIEW OF THE CODE
SECTION 1- As used in this code and for the purpose thereof. The Realty Service Practice shall embrace
and include all persons, partnerships or corporations who are duly licensed by the Department of Trade and
Industry in accordance with Section3(e) and (ee) of Act No. 2728 as amended by Act No. 3715 and 3969 and
Ministry Order No.39. Series of 1985 as real estate salesman, broker, appraiser or consultant and such other
practitioners as the Directors of the Department of Trade and Industry may now or hereafter license pursuant to
any law, rule or regulation that may be promulgated by the government. They shall be called Realty Service
Practitioners hereinafter known as the Practitioners.
ARTICLE III. RULES OF CONDUCT AND PRACTICE
The practitioners shall be governed by the following rules of conduct and practice;
SECTION1. Relation to the Government
(a) The practitioner should secure all the necessary licenses, permits and authority from
the Department of Trade and Industry and other government agencies as may required by law, ordinance
or rules and comply with all the requirements thereof before engaging in the same;
(b) He should pay any and all taxes, fees, dues levies or charges that the government may
impose in accordance to law, ordinance, or rules and regulations;
(c) He should help, assist and cooperate with the Department of Trade and Industry and all
government agencies and instrumentalities in the promotion, development, proper zonification and
conservation of lands and other natural resources; its improvements and rights and interests therein;
(d) He should not encourage, abet, tolerate or participate in the evasion or illegal
reduction in the payment of all taxes, fees, dues, levies or charges that may be imposed by the
government;
(e) He should not offer or agree to pay to, split or rebate any commission, fee or valuable
consideration, directly or indirectly, with any person who is not a duly licensed practitioner or to
cooperate, assist or endorse any transaction or engagement of his services in violation of any existing
law, rule or regulation;
(f) He should indicate the license number of the Certificate issued by the Department of
Trade and Industry in his letterhead, dry seal, signboard, billboard, advertisement or other
announcement in relation to the Realty Service Practice;
SECTION 2- Relation to the Public
(a) The practitioner should be imbued with a social conscience for he does not live by himself
and his family alone but he is a part of society with definite social responsibilities.
(b) He should ensure the highest and the best use of the land and the equitable distribution of
ownership, irrespective of political beliefs, cultural background, sect religion or class;
(c) He should keep himself well informed as to any movement affecting real estate in his
community, city or province, so that he may be able to contribute to the public thinking on matters
of taxation, land use, city planning, zonificaton and other programs of the government;
(d) He should cooperate with the government in protecting the public against deceptive, unfair and
unconscionable acts and practices of some unscrupulous or unlicensed practitioners, like fraud,
misrepresentation, concealment of relevant information and other related unethical practices;
(e) He ascertain all pertinent facts concerning every property, and avoid error, exaggeration,
misrepresentation, concealment of pertinent facts in dealing with the general public concerning real
estate transactions;
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(f) He should not be instrumental in introducing in a neighborhood a certain character or use
of property which will tend to impair or erode property values within that neighborhood;
(g) He should not be a party to the naming of a false consideration in deed of instrument;
(h) He should keep a special bank account separate and distinct from his own funds, all
moneys received in trust for other persons, such as deposit in escrow, trust funds, clients earnest money
and similar items;
(i) In his advertisements, brochures or announcements, he should present a true picture of the
property, its improvements, or rights and interests therein including whatever liens or
encumbrances it may have, if any, and should indicate his name, firm name, address and license number
of the Certificate issued by the Department of Trade and Industry. In case of real estate salesman, he
should indicate the name, firm name and license number of the broker under whom he is employed;
(j) He should see to it that all agreement, terms and conditions, financial obligations and
commitments in a real estate transaction are in writing, duly signed by all parties concerned, and if
necessary to be properly authenticated by a Notary Public.
SECTION 3 - Relation to the Client Customer (a) T he practitioner, in accepting an appointment or Authority to act for and in behalf of a
client or customer, should pledge himself with utmost fidelity and good faith to protect
and promote the interest of his client without in any manner sacrificing the legitimate
interest of the other party in the transaction;
(b) For the sake of justice and fairness to his client who have reposed confidence in him, the
Practitioner should endeavor to be well informed of current legislation, policies and
programs of the government including proposed legislation, which may affect the interest
of his client;
(c) He should not accept any commission, fee or any valuable consideration from any party
in any transaction except from his client unless with the full knowledge and consent of all
the parties in the transaction. He shall not also introduce or work for an overprice from
either the buyer or seller except the usual standard rate of commission on any real estate
transaction;
(d) He should charge or collect only such fees or commissions as are fair and reasonable in
accordance with usual schedule of commission for Metro Manila and provinces;
(e) He should not advertise any property without authority and in any offering, the price
quoted should be in accordance with the price agreed with the owners as the offering
price.
(f) In the event that more than one formal offer on a specific property is made before the
owner has accepted a proposal, all written offers should be presented to the owner for his
decision;
(g) He should endeavor to make his client and customer concludes a fair contract
advantageous to both;
(h) He should assist his customer acquire possession and ownership of the real property
bought in accordance with the terms and conditions agreed upon;
(i) In case he is called upon to act as witness in a court proceeding he should give his
testimonies in the most unbiased, honest, truthful, and professional manner;
(j) As a real estate appraiser, he should not render an opinion without careful and thorough
analysis and interpretation of all factors affecting the value of the property. His counsel
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and advice constitutes a professional service for which he should make a fair and
reasonable charge;
(k) As an agreement, he should not undertake to make an appraisal or render an opinion that
is outside the field of his experience and competence unless he obtains the assistance of
another practitioner familiar with such type of property or unless the facts are fully
disclosed by the client.
SECTION 4- Relations to Fellow Practitioners
(a) He should not solicit a listing which is currently listed exclusively with another broker
unless the listing agreement has expired or revoked by the owner and the owner offers to
list the same to the new broker without soliciting the same;
(b) When he accepts a listing from another broker, the agency of the broker who offers the
listing should be respected until it has expired and the property has come to the attention
of the accepting broker from a different source, or until the owner without solicitation,
offers to list with the accepting broker. Such a listing should not be passed to a third
broker or published in a daily newspaper without the knowledge and consent of the
listing broker;
(c) Signs giving notice of a property for sale, rent, lease or exchange should not be placed on
any property by more than one broker and only if authorized by the owner;
(d) He should not use information obtained by him from a listing broker through offers to
cooperate or received through multiple listing services or other sources authorized by the
listing broker for the purpose for creating a referral prospect to a third broker or for
creating a buyer's prospect, unless such is authorized by the listing broker;
(e) He should cooperate with other brokers on property listed and share the commission on
an agreed basis. Negotiations concerning property listed exclusively with one broker
should be carried with the listing broker, and not the owner, except with the consent of
the listing broker;
(f) He should not solicit or use the services of an employee or salesman of another
practitioner without the knowledge of the employer;
(g) He should not criticize publicly a competitor nor volunteer an opinion of a competitor's
transaction. If his opinion is sought, it should be rendered with professional integrity and
courtesy;
(h) The practitioners should seek no fair advantage over his fellow practitioners. In the event
of a controversy between practitioners belonging to the same organization or association,
such controversy should be submitted for arbitration to such organization or association
whose decision, if accepted by both parties, will be final and binding as far as the
association is concerned.
(j) If the controversy is between practitioners belonging to different organizations or
associations, it should be submitted to an Arbitration Board considering of one member
from each organization or association chosen by each of the parties to the controversy. A
third member should be chosen from either the organizations or association or from the
national organization or association is affiliated.
(k) In case the practitioners in a controversy are not members of any duly recognized
organization or the Arbitration Boards cannot settle the controversy, the Department of
Trade and Industry shall assume jurisdiction over said controversy;
(f) In case a complaint is filed against a practitioner with his organization or association for
unethical or unfair practice, he should voluntarily submit all pertinent facts before an
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investigating body that may be informed by his organization or association for evaluation
and resolution.
SECTION 5 -Relation to his Organization Including the National Association to which his Organization
is affiliated
(a) In the interest of society and his own profession, calling or occupation, the practitioner
should abide by the Constitution and By-Laws of his association or organization and the
National Association to which it is affiliated;
(b) Election as officer or member of the governing body of the organization or association
carries with it the moral obligation to serve honorably, unselfishly, diligently and
efficiently. It should not be subject of the election campaign or use of letters or circulars
announcing one's candidacy or appealing for votes for himself or for other nominees or
candidates or other forms of ele