TRANSFER OF NAME : LAND TITLE

By Balita | June 28, 2013

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Q. Hi Atty. Wong I have a question regarding a property of my deceased father in Manila. My father
died in 2000 and still has his name in the land title of the property.
How can I and my older brother transfer the land title from our deceased father to us?
Points to consider:
Both parents are dead. Mom died 8 years before dad.
All property taxes are paid regularly.
Me and my brother moved to Canada 2005 and now both Canadian Citizens. I am now 25 yrs old
and my brother is 26.
Please also provide additional information about other taxes and legal fees. Thank you! Ms. D.
ANS:
Hello Ms D, in order that the title of the property(ies) left by your parents can be transferred from the
name(s) of your deceased parents to the children as their heirs, you and your sibling are required to
execute the so called EXTRAJUDICIAL SETTLEMENT OF ESTATE.
You could ask your lawyer in the Philippines to make the necessary documentations for the purpose.
However, if you dont intend to travel to the Philippines for the said purpose, you can execute the
Extrajudicial Settlement of Estate with a Special Power of Attorney(SPA) in Canada and have the
said document, duly acknowledged and notarized (with red ribbon) before our Philippine Consulate
in order that the said document will be recognized in the Philippines.
However, if you and your sibling intend to travel to the Philippines to personally attend to this matter,
you can have the Extrajudicial Settlement prepared and notarized in the Philippines.
The inclusion of the SPA in the settlement of the estate documents as stressed above, is a
convenient way for your representative(s) to make the necessary legwork for and on your behalf, and
more particularly, in the cancellation of the old land title which still bears the name(s) of your
deceased parents, and for the issuance of a new title(s) under your name and the name of your
sibling as co-owners of the land(s) in question.
Moreover , if you and your brother agree , you could have a physical partition of the property and an
individual titles thereof will be issued separately for segregated lot . Should you opt for this option ,
you have to get the professional services of a Geodetic engineer or surveyor to make the necessary
Lot/Subdivision plan of the subject property and thereafter for the approval of the same by the Land
Management Bureau and the Land Registration Authority (LRA).

As to taxes and fees, you guys need to work fast. You really have to address ASAP this matter as the
interest and penalty charges per annum of failing to pay estate taxes that are already due reckon
from the death of your father in 2000 and your mother in 2008 respectively .
As to the amount of taxes that you have to pay, I am not in position to determine the amount as the
taxes thereof depends on the zonal or market of the property whichever is higher per the schedule
as listed and provided by the Bureau of Internal Revenue(BIR) of a given place or locality referred to
as the zonal valuation .
What is certain is the fact that you have to pay the prescribed of taxes/fees (aside from real estate
taxes which you claimed are paid on time) and more particularly, the following:
a) Estate Tax plus interest at 25% on the tax amount due for late filing and payment and annual
interest of 20%
interest per annum.
b) Documentary stamp tax( 1.5% of the zonal or market value whichever is higher)
c) Transfer tax/fees ( ranging from .5 to 1% of the consideration/ zonal or market value whichever is
higher)
For further assistance on tax matters, it is recommended that you engage the services of tax
practitioner in the Philippines, for professional guidance.
Then there is also a need for the Extrajudicial Settlement of the Estate that you have executed to be
published in the news paper of general circulation for three(3) consecutive weeks in the Philippines
or in the locality where the property is situated and thereafter secure an affidavit of such publication
from the publisher or editor of the newspaper .
Once, the above formalities are done, the above taxes will then have to be paid to the Bureau of
Internal Revenue (BIR) for the issuance of Certificate Authorizing Registration(CAR), followed by the
payment of fees/taxes to the Assessors Office/Register of Deeds . Depending on the scope of the
professional services of the lawyer, the above tasks could be included as part and parcel of your
lawyers job.
As regards the legal fees for the lawyer, again it depends on the value/kinds/nature of the property
involved , the complexity of the job and the professional standing of the lawyer in the community. In
short if there are problems and issues over the property or if youll hire a high caliber lawyer or De
campanilla , the higher the professional/attorneys fees will be.
For now, the first order of business is for you is to scout a prospective lawyer of your preference to
provide you with such professional services at the earliest opportunity.
Lastly. The fact that you and your sibling are now Canadian citizens and are therefore considered as
foreigner, does not disqualify either of you from owning real properties in the Philippines, being the
intestate heirs of your deceased.

However, in terms of the land area ownership , there is a limit imposed upon former natural-born
Filipino citizens who are now citizens of other country . A maximum of 1,000 square meters in urban
centers and 10,000 square meters of land in rural areas.
The above-restrictions does not apply to those citizens who availed of the Dual Citizenship and
Retention Act, otherwise known as RA 9225.
Under this law, a natural-born Filipino citizen is deemed not to have lost their Philippine citizenship
notwithstanding becoming a naturalized citizens of other country. As such, all the rights of being
Filipino citizens, more particularly, in land ownership is fully restored upon them. Hence, the
restrictions on land ownership imposed upon foreigners does not apply to them.
Looking forward youll find the above in order. Thank you for writing and good luck!
Disclaimer: Batas Pinoy Corner Not Legal opinion:
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Such circumstances or understanding of the facts as conveyed to the writer by the sender may not
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not meant to be a substitute for legal opinion. Always consult your lawyer or other legal professional
for legal advice as regards to the information obtained in this column.

Heirs share in ownership of undivided estate

Dear PAO,
We are five siblings, all of legal age. Our parents are already deceased leaving no will. We have an
ancestral property in La Union still registered under the name of our parents. My siblings and I are
planning to have the property partitioned under extrajudicial process.

Our ancestral home is still intact in that land. How do we go about dividing the land? Do we have to
tear down the house before we can proceed with the partition process? Or can we proceed with the
partition of the land with the house intact? The problem is that one of my nieces and her family live in
the ancestral house. We have asked them to vacate, but they dont want to. In fact, her father, one of
our siblings, doesnt want them to leave either. The house is the sticking point in our quest for a fair,
just and equal distribution of our ancestral land property. Please advice us on how to deal with this
issue.
M.L.
Dear M.L.,
Partition, in general, is the separation, division and as-signment of a thing held in common among
those to whom it may belong (Article 1079, Civil Code). The heirs of a deceased who are all of age
or minors who are re-presented by their judicial or legal representatives duly authorized for the
purpose may divide the estate among themselves as they see fit by means of a public instrument
filed in the office of the register of deeds. This process of division is called extrajudicial partition and
governed under Section 1, Rule 74, Rules of Court.
Before partition, the ow-nership over an undivided thing or right is owned in common by all heirs
(Article 1078, Civil Code). But, a co-owner may demand at any time the partition of the said thing
owned in common, insofar as his share is con-cerned (Article 494, Civil Code). In the partition
thereof, equality shall be observed as far as possible, dividing the property into lots, or assigning to
each of the co-heirs things of same nature, quality and kind (Article 1085, Civil Code), However,
should a thing be indivisible or would be much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the others the excess in cash (Article 1086, Civil Code). If the
co-heirs could not agree that it be allotted to one of them who shall indemnify the others, it shall be
sold and its proceeds distributed (Article 498, Civil Code).
Clearly, the ancestral house and lot cannot be physically divided to you and your siblings because
the physical division of the house would make it worthless. The house cannot be demolished in
order to partition the land because the house is part of the estate, unless all of your siblings would
agree to this. Con-sidering that one of your nieces stays in the house with the consent of her father
who is your sibling, you may assign the ancestral house and land to that sibling after he pays the
other siblings with their respective shares in cash. If you or one of your other siblings refuses to allot
the property to that sibling whose daughter is staying in the house, the said property may be sold
and the proceeds distributed equally to all children. Nevertheless, since there is already a
disagreement as to the division of the an-cestral property, it would be best to file a petition for
partition in court in order to resolve the manner of its partition.

Please be reminded that the above legal opinion is solely based on our appreciation of the problem
that you have stated. The opinion may vary when other facts are elaborated therein.

Co-owner keeps ownership of share, may demand partition of

property

Dear PAO,
My father and uncle inherited a piece of land from their parents. The title of the land was transferred
in their names as co-owners. My uncle needed money so he went to my father and borrowed the
owners duplicate title of the land and mortgaged it to a friend. As my uncle cannot pay the loan, his
friend foreclosed the mortgage. We were surprised one day to receive a demand letter from my
uncles friend informing us that he is now the new owner of the whole property as the redemption
period already expired and ordering us to vacate the property. Does this mean that my father no
longer owns the other half of the property because of the mortgage? What are we going to do, we
have no money to repurchase the property? Please help.
Lotlot
Dear Lotlot,
Co-owners may sell, mortgage or transfer to another person their rights over their shares in the
property which is owned in common. This is explicitly provided by Article 493 of the New Civil Code
of the Philippines which states as follows:
Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in
its enjoyment, except when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him
in the division upon the termination of the co-ownership.
No less than the Supreme Court of the Philippines in the case of Nilo A. Mercado vs. The Court of
Appeals (G.R. No. 108952, January 26, 1995) elucidated this provision in this wise, to wit:
Pursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-owned
property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he
cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary
rule that no one can give what he does not have (Nemo dat guod non habet).

As can be gleaned from the foregoing, your uncle has the right to mortgage his share in the property
they inherited from their parents. However, the mortgage which he entered into with a friend does
not bind your father insofar as that part of the property which belongs to the latter is concerned. In
other words, even if the mortgage is foreclosed, it does not affect the share of your father. Your
father shall remain the owner of his share notwithstanding the change of ownership of the other
share in the property.
Be that as it may, since co-ownership still exists, as a co-owner of the property, your father may
demand the partition of the property. This is clearly provided by the New Civil Code of the Philippines
which provides:
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand
at any time the partition of the thing owned in common, insofar as his share is concerned.
xxx
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.