Land Titles and Deeds Reviewer
2009
Atty. Palabrica’s Lectures
HISTORY
Spanish Influence – Legal significance to ownership of the
land
• Regalian Doctrine – all lands are owned by the State
How lands were owned during the Spanish Era 1. Titulo Real (Royal Title) – Land is given to
Spanish people to encourage them to settle in the Philippines. Among those granted are:
a. Discoverers b. Settlers
2. Special Grant – Grant given by the governor assigned in the Philippines. No special law is required to empower governor to grant. 3. Adjustment Title – given to a person who has
ownership of land but the land was not defined. By virtue of such, he acquires ownership of encroached land.
4. Title of Purchase – applicable to lands of public domain
5. Possessory Information Title – title showing possession of land
Regalian Doctrine – Enshrined in the Constitution.
Section 2, Article 12
“All lands of the public domain, waters, minerals, coal petroleum, and other mineral oils, all forcer 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, 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 60% of whose capital is owned by such citizens. Such agreements may be for a period not exceeding 25 years, renewable for not more than 25 years, and under such terms and conditions as maybe provided by law…”
Exceptions to Regalian Doctrine:
1.) Religious and ecclesiastical properties are not owned by the State. Such are held IN TRUST by these religious organizations. (Bishop of Cebu vs Mangaron)
2.) Native title - lands owned by indigenous people since time Immemorial. RA 8173 or IPRA of 1997. (Cruz vs. DENR)
P.D. 1529 Property Registration Decree – codifies all other laws
pertaining to title registration as it supersedes the same. However, all other laws not inconsistent are still applicable.
Land Titles and Deeds Reviewer
2009
Torrens SystemIt is Judicial in character and not merely administrative in nature.
It provides for a system for the registration of titles to lands whereby the official certificate will always show the state of the title and the person in whom it is vested.
Real purpose of Torrens system is to quiet title to land and to stop forever any question as to its legality.
It does not vest title it merely confirms and records title already existing and vested.
Origin
1. Spanish Mortgage Law of 1893 – provided for a systematic way of Registering titles
2. Act 926 of 1903 – otherwise known as First Public Land Law. Applicable to Public Lands. SUBSTANTIVE. Among its functions are:
a. Providing for Homesteading b. Issuance of Patents
c. Completion of imperfect title d. System of Sales and Lease e. Rids of Spanish concession
• Act 2874 of 1918 – Amendatory act of Act 926. 3. Torrens System of 1903 – Otherwise known as Land
Registration Act. Copied verbatim the 1898 Torrens System of Massachusetts by Robert Torrens, a South Australian Registrar of Deeds. He was said to be
inspired by the Merchant Shipping Registration, and applied the same to Land Registration
a. Description:
i. Government issues official certificate showing ownership of title
ii. Subjects the same to liens or encumbrances
iii. Indefeasible
iv. Incontrovertible after one year b. Principles:
i. Best evidence of ownership ii. Notice for the whole world that the
property belongs to the owner.
iii. Any claim over the land before issuance of the Torrens title is deemed barred. iv. Imprescriptible – squatters will not
acquire ownership through prescription • Every person registering in good faith and for
value need not go beyond the title.
• Person who fraudulently registers the land in his name is holding the property as a trustee and aggrieved party has option to recovery.
4. Act 141 of 1936 – Amended 1903 Torrens System. More substantial than procedural
5. Act 496 – Land Registration act of 1903. PROCEDURAL.
In a nutshell: Act 926 provided for the substantive requirements seen in PD 1529, while Act 496 enumerated the procedures to be undertaken.
Land Titles and Deeds Reviewer
2009
6. Cadastral Act of 1913 – Derived from the opinions of the President. Initiated by the President as instructed by him.
7. P.D. 1529 – The mother load. Otherwise known as Property Registration Decree.
Sec. 2 Nature
• In Rem or Against the whole world – through notice of publication, all interested parties may oppose.
• Courts of First Instance/ RTC has exclusive jurisdiction
1. Filed in proper C.F.I. – subject to provisions of Judiciary Act of 1980 as amended by RA 7691
§ There Could be a delegation of jurisdiction when:
• There is no controversy • The value of Land is
less than P100,000. Value is determined by affidavit of claimant or declared value. • Pursuant to SC Administrative Circular 6-93-A,
of 1995:
o If the case is filed before the effectivity of the circular, and there has been NO HEARING yet, the case may be delegated
o If the hearing has started, the case may be delegated if the parties agree • The Torrens Title though indefeasible is not a
shield of fraud.
• As between 2 innocent purchasers – the one who caused the wrong shall bear the loss.
o He who registers first is preferred as far as 3rd persons are concerned
o As between two certificates of title pertaining to the same land, the earlier certificate prevails.
o A forged document may be the root of a valid title when sold to an innocent purchaser for value.
o Forgery must show that the name of the supposed owner was changed to the name of the forger.
Sec. 3 – Spanish Mortgage Law is discontinued, all lands without Torrens Title are deemed unregistered.
Sec.4-13 – Agencies/Offices that control Torrens system. • DOJ – LRA – R.O.D.
o One Registry of Deeds for each province
o One Registry of Deeds for each City
MAJOR STEPS IN REGISTERING LAND
I. APPLICATION
Sec 14-22 PD 1529
Section 14. Who may apply. The following persons may file
in the proper Court of First Instance an application for registration of title to land, whether personally or through their duly authorized representatives:
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2009
(1) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier.
(2) Those who have acquired ownership of private lands by prescription under the provision of existing laws.
(3) Those who have acquired ownership of private lands or abandoned riverbeds by right of accession or accretion under the existing laws.
(4) Those who have acquired ownership of land in any other manner provided for by law.
Where the land is owned in common, all the co-owners shall file the application jointly.
Where the land has been sold under pacto de retro, the vendor a retro may file an application for the original registration of the land, provided, however, that should the period for redemption expire during the pendency of the registration proceedings and ownership to the property consolidated in the vendee a retro, the latter shall be substituted for the applicant and may continue the proceedings.
A trustee on behalf of his principal may apply for original registration of any land held in trust by him, unless prohibited by the instrument creating the trust.
• Pertains to Original registration – Involves land of public domain that are alienable, its purpose is to perfect the imperfect title held by the possessor.
• Section 14 is a colorable right
• June 12 1945 does not pertain to the status of “Alienable and Disposable” but rather to the Bona Fide Ownership.
• We have until December 31, 2020 to perfect imperfect titles. So what are you waiting for? ☺
Applicant Requisites:
1.) Filipino Citizen
• Can a corporation be an applicant for
registration of land? – Corporations cannot own lands of Public Domain therefore cannot be an applicant for original registration.
o BUT Filipino Corporations can own private lands if land has already been registered.
§ If owned previously by a private individual, then sold to a Filipino Corporation, the latter may become an owner. This is because the moment all the requisites or application are complied with, the owner may be given ad GOVERNMENT grant. (Republic vs Sineza) § In fact the corporation may
continue the application proceedings when upon the original registration of the owner
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2009
of the land, such land becomes a private land.
o BUT Foreign Corporations cannot own public or private lands, whether registered or not. (Director of Lands
vs. ACME Mineer and Plywood Company).
o Foreigners cannot own lands in the Philippines. (Rivenco vs Registry of
Deeds)
• Who may acquire private lands? 1.) Filipino Citizen
2.) Alien through hereditary succession
3.) Filipino Corporation
4.) Filipino who has lost citizenship
– pertains to time when property was acquired and not during registration. (Republic vs.
Lipana)
2.) Must have by themselves or through their predecessors in interest possessed and occupied alienable and disposable land.
• Unclassified Lands cannot be disposed. Only Agricultural Lands
• Only Agricultural Lands may be Alienable. o Only the President and other
subordinate executive departments may declare land alienable – the Courts do not have such power.
• If land is not Alienable but occupied for a long time, it still cannot be registered since the land was not being occupied through a bona fide claim.
• Occupation of Predecessor-in-interest is
TACKED to the applicant, that it is not important that the status of “Alienable and Disposable” need not be since June 12, 1945. (Republic vs.
Naguit)
3.) Must be open, continuous, exclusive and notorious under a bona fide ownership since June 12, 1945.
• Not casual, nor merely for cultivation. • June 12, 1945, not pertaining to status.
4.) Application must be filed in the proper RTC
• Applicable only to untitled lands o Prescription: § Extraordinary – 30 years § Ordinary - 10 years Sec. 15 - Form • Signed • Writing • Under oath
• State the description of the Land • Civil Status
• Owners of Adjoining Lots Sec. 16 – Non –Resident Applicant
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• Apply through Representative Sec. 17 – Where to File
• RTC
Sec. 18 – Application for 2 or more parcels of land • Possible if located in the same place Sec. 19 – Amendments
• If amendment is substantial i.e. expanding boundaries, it is not valid unless published. Sec. 22 – Pending Registration
• If application is on going, applicant may deal the land but must attach the instrument and state the relief/ prayer. As a result, court may approve or issue a reconveyance.
II. PUBLICATION AND NOTICE
Sec. 23 PD 1529
• What is being published is the order of the initial trial, not the application for registration.
• Nature of proceeding is in rem
1. Publication
a. Within 5 days upon receipt of application. b. Court orders the publication
c. Once in Official Gazette and once n Newspaper of General Circulation
d. Hearing shall not be held earlier than 45 days and later than 90 days from the publication of initial hearing.
• Purpose of publication is two-fold
o To confer jurisdiction to the court o Serve as a notice to all those concerned
of such registration
• Publication is mandatory and jurisdictional • Purpose of publication in Newspaper of General
Circulation to reach audience not reached by publication in O.G. because of its limited circulation.
• Amendments to application may be done with or without publication.
o Substantial amendments such as inclusion of additional land requires republication.
o Exclusion of land is not substantial.
2. Mailing
a. Within 7 days after publication of said notice in O.G.
b. Commissioner of Land Registration causes mailing
c. What to Mail – Notice of initial hearing d. Who to mail:
i. Mailing to Persons named in the application
ii. DPWH, Governor, Mayor – if adjoining a public road
iii. Minister of Agrarian Reform, Sol-Gen, Director of Lands, DPWH, Director of Forest Development, Director of Mines, Director of Fisheries and Aquatic
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Resources – If land borders on a body of water
• Mailing is binding despite failure of giving personal notice since nature of proceeding is in rem
3. Posting
a. Within at least 14 days before the date of initial hearing.
b. Caused by the Sheriff
c. Posted in a conspicuous place on each parcel of land included in the application and on the bulletin board of municipal building.
III. OPPOSITION
Sec. 25 PD 1529
• Any person who has interest in the property or those mentioned in the notice may be an oppositor.
• A private individual may not represent the government.
• The Solicitor General may represent the Government in such opposition, but may delegate such power to prosecutors. • There are two types of default
o General – no opposition was filed by anyone
o Special – an opposition was filed by an aggrieved party, hence all others who do not file their respective oppositions are declared in Special default.
• Default does not automatically relieve the applicant the burden to prove ownership over such property.
o He must rely on the strength of his evidence and not on the weakness of the oppositor.
IV. HEARING
Sec. 27 PD 1529
A. Involves the presentation of evidence, what to prove? 1. The court has jurisdiction
2. Applicant is the Owner 3. The identity of the Land
4. Land is alienable and disposable
1.) How to prove jurisdictional area?
i. Publication
1. Copy of NPGC 2. Affidavit of the Editor 3. Copy of OG 4. Affidavit of OG ii. Mailing 1. Affidavit of LRA iii. Posting 1. Certification of the Sheriff
2.) How to prove ownership?
i. Imperfect title pursuant to Sec. 14
3.) How to prove Land Identity?
i. Survey and Description by Bureau of Land Management
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4.) How to prove that Land is alienableand disposable?
i. Declared by the President, or through executive department.
1. Presidential Proclamation 2. Executive orders 3. Circulars V. JUDGMENT Sec. 28 PD 1529
A. Two Types of Judgment
1.) Partial – a portion is being contested i.e. the Land Management approves subdivision plan. (Sec. 25 PD 1529)
2.) Conditional – subject to a condition, as in required to submit documents from time to time.
• Clerk of Court delivers decision to LRA
VI. ISSUANCE OF DECREE OF REGISTRATION
Sec. 31 PD 1529
A. The Court after hearing, directs the LRA to issue the decree of Registration
B. The LRA issues decree of registration bearing the date, hour and minute of its entry. And SIGNED by the commissioner.
VII. ISSUANCE OF CETRIFICATE OF TITLE
There are 2 certificates issued by the LRA
1. Original Judicial Registration – forwarded to the Registry of Deeds for the purpose of recording liens.
2. Owner’s Certificate of Title
NON-REGISTRABLE LANDS
• May not be registered regardless of number of years of occupation
• These are lands devoted to public service or use regardless whether it is abandoned. (Laurel vs.
Garcia)
• Only the president has the power to Declassify
Public Property – May be disposed of by government, i.e.
land of public domain which may be subject to alienation
Government Property – Cannot be subject to sale,
distribution.
• Only public lands may be subject to cadastral proceedings
Public Property includes
1. Foreshore Lands 2. Forest Lands 3. Watershed 4. Mangrove forest 5. Mangrove Swamps 6. Military and naval reserves
The determining factor is whether it is more valuable to preserve the land or develop.
Reclamation – only National Government may reclaim.
Reclaimed lands cannot be subject to private ownership except through CONGRESSIONAL law, and even so, only private citizens may avail.
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2009
REMEDIES
1.) New Trial – may be availed of before decision becomes final. Decision becomes final after 15 days without appeal. Its purpose is to set aside judgment.
The grounds for new trial are:
a. Fraud, accident, mistake or excusable negligence.
b. Newly discovered evidence which would alter the result of the trial
c. Awards of excessive damages 2.) Appeal – must be initiated within 15 days after judgment
3.) Petition for Relief – When decision is final, petition for relief may be availed of within 60 days, not more than 6 months from
knowledge.
4.) Petition for Review – May be filed by parties deprived of their land by adjudication of title obtained by ACTUAL fraud.
Requisites:
1. Petitioner has a real and dominical right 2. He has been deprived thereof
3. Through fraud
4. Petition is within one year from issuance of the decree.
5. The property has not yet passed to an innocent purchaser for
A. Who?
Any person including the government deprived of their land may file petition for review. He does not need to be an oppositor from the get-go.
B. When?
He must file the petition not later than 1 year from the date of entry of decree of registration. This decree pertains to that mentioned in Sec. 31 PD 1529. Fraud – must be Actual or Extrinsic fraud.
Extrinsic Fraud- any fraudulent act of the successful party in a litigation which is committed outside the trial of a case against the defeated party whereby said defeated party is prevented from presenting fully and fairly his side the case.
Intrinsic Fraud – acts of a party in a litigation during the trial such as forged instruments, or perjured testimony which did not affect the presentation of the case but did prevent a fair and just determination of the case. 5.) Action for Reconveyance – may be filed when a person is holding the property in trust in order to reconvey the land. In order to transfer title to true owner. It does not however change the decree issued as it respects the incontrovertibility of he title. May be availed of even after the lapse of one year.
6.) Damages – May be instituted when after the lapse of one year, the property is sold to an innocent purchaser for value. Aggrieved
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2009
party may file an action for damages against the immediate party causing the sale.
Innocent Purchaser for value – one who has no notice that
some other person owns the land/property or any defect as to the right of the person owning the property.
• Reckoning time – time when the transaction was made. Hence if such defect comes into
knowledge, the buyer has the obligation to go beyond the title, otherwise he will be in bad faith. • In case of Double sale the rules are:
o The one who registers first in good faith is the rightful owner;
o The one who first possessed the property in good faith is the rightful owner;
o The one who presents the oldest title is the rightful owner.
7.) Reversion – An action filed by the government in the event when part of the land awarded is actually non-registrable.
8.) Cancellation of Title – An action filed when part of the property awarded is property of other persons.
9.) Action for annulment of judgment or final order – Grounded on Extrinsic Fraud.
• If remedy is used in previous actions, it shall not be availed of anymore.
10.) Criminal Action – in the event of perjury
CADASTRAL
PROCEEDINGS
PURPOSE:
• Another means to bring lands under operation of Torrens System
• Ordinary registration is slow for lack of initiative on part of landowners, innovation was conceived to hasten and accelerate registration
• Government initiates that all lands within a stated region are up for registration – whether or not owners are interested to settle their titles
NATURE OF PROCEEDINGS:
• In rem
• No defendant & no plaintiff • Compulsory
PROCEDURE:
1. CADASTRAL SURVEY
• Conducted by the Director of Lands 2. FILING OF PETITION
• After survey and plot been made, Director represented by Sol Gen institutes cadastral proceeding by filing petition in court against holders, claimants, possessors, occupants
• Parcel of lots given their cadastral numbers 3. PUBLICATION OF NOTICE OF HEARING
• Court to order date of hearing
• LRA to notify public by publishing notice 1x in OG and 1x in newspaper of general circulation & copy mailed to person whose address is known & other copies posted in conspicuous place designated bylaw
4. FILING OF ANSWER
• Any person claiming interest in any part of lands subject to petition is required to file answer
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• In any convenient place where land lies • Like an ordinary RTC trial
• Conflicting claims are determined
• Lots claimed are awarded to persons entitles – if they could prove title
• If none could prove title – land is declared public domain 6. DECISION
• Claimants are notified of decision
7. ISSUANCE OF DECREE AND CERTIFICATE OF TITLE • Upon order of court, LRA to enter decree of registration • Decree made basis for issuance of OCT
CERTIFICATE OF TITLE
Sec. 44 Statutory Liens affecting title – holder shall hold the title free from all encumbrances except those noted on said certificate and any of the following encumbrances which may be subsisting namely:
1. Those arising under the laws and Constitution which are not require to appear of record in order to be valid 2. Unpaid real estate taxes levied and assessed within 2
years immediately proceeding the acquisition of any right over the land by innocent purchaser for value without prejudice to right of government to collect taxes payable from that period
3. Public highway or private way established before the registration
4. Any disposition of the property or limitation on the use pursuant to Agrarian Reform
Sec. 46 General Incidents of Registered Land
Does not relieve registered land from any burdens. Sec 47 Registered land not subject to prescriptions
Sec. 48 Direct vs. Collateral Attack
• Direct – filing an action to annul the judgment
• Collateral – Praying for a relief other than annulment, questioning the validity is incidental
Sec. 49 Splitting of Title – Administrative Proceeding, no need for hearing
• Purpose – to provide for separate certificates of title to several distinct parcels of land covered by only one Certificate of Title
Steps:
1. Submit a written request to the Register of Deeds 2. Surrender Owner’s duplicate certificate
3. ROD will cancel Owner’s duplicate certificate and Original Certificate
4. ROD will issue several certificates of title Sec. 50 Subdivision and Consolidation – Same as Splitting
• Subdivision plan may become a judicial proceeding only when 2 people do not agree to divide the land
SUBSEQUENT REGISTRATION
Voluntary – Upon the parties’ choice
Involuntary – Even against the will of the party
• Is a contract of Sale executed abroad valid in the
Philippines? Yes, but it has to be authenticated first by the Ambassador by putting a seal and signing the instrument • When is it deemed registered?
1. Submission of Deed of Sale 2. Sale has been entered 3. OCT surrendered
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4. Payment of filing fees
• Actual issuance of Certificate is not the date of registration, it retroacts to the date it is entered in the day books
Sec. 56 Primary Book – Records of all instruments including writs and processes pertaining to Registered Land.
VOLUNTARY DEALINGS
Sec. 57 CONVEYANCE How to Register: Secure and Submit
1. Deed of Conveyance
a. Need not be notarized, deed is a private contract between the vendor and vendee
b. Notarization is a requirement only to bind third persons
2. Owner’s Duplicate Certificate
After registration, the Register of Deeds will issue new certificates 1. Original Certificate of Title
2. Owner’s Duplicate Certificate of Title Sec. 58 If only a portion of Land is to be conveyed
Seller must make a Survey Plan:
1. Stating the technical description of the Land to be conveyed
2. Approved by the Land Management Bureau 3. Submit to the Register of Deeds
The owner has two Options
1. To have 2 separate Titles; or
2. To have a new title therefore, the title to the portion of the land conveyed
Sec. 59 Conveyance is a Lien, it subsists and carried over to the new title.
Sec. 60 MORTGAGE
Mortgage is not equivalent to Ownership, it is possession less than ownership, hence there is no need of a new title. What is required is an annotation.
Mortgage is a security, a contract to guarantee fulfillment of a principal obligation.
Requisites:
1. It is to guarantee fulfillment of a principal obligation 2. Mortgagor is the Absolute Owner
• Third persons may mortgage in favor of a debtor if the former are not part of the principal obligation
3. Mortgagor has free disposal of the property Characteristics:
1. Constituted on a Real Property 2. Real Contract
3. Indivisible 4. Inseparable
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2009
5. Limitation on Ownership 6. Accessory Contract
Indivisibility
If A mortgaged his part of the land in favor of a Mortgagee, is B’s portion affected? Yes. Due to the characteristic of Indivisibility.
Inseparability
A Mortgage Lien is inseparable from property. Thus, if a property is mortgaged and henceforth mortgaged again, the Lien on the property still subsists.
Accessory
If there is no principal contract, such in the case of a contract of Loan, there is no Accessory contract as in the case of the
mortgage conract.
The Mortgagor retains the possession because ownership is not mortgaged, it does not transfer ownership or possession. Equitable Mortgage
1. When the price of the sale is unusually inadequate; 2. When the vendor remains in possession as lessee or
otherwise;
3. When upon or after the expiration of the rights to repurchase, another instrument extending the period of the redemption or granting a new period is executed; 4. When the purchases retains for himself a part of the
purchase price;
5. When the vendor binds himself to pay the taxes on the thing sold;
6. In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.
SC: Equitable Mortgage is not a mortgage in form, but is still a mortgage regardless of the name of the agreement. Antichresis – possession of land transferred to someone but in favor of another person.
Chattel vs. Real Estate Mortgage
Differences
1. Chattel – A mortgage on a Movable Property 2. Real Estate – On an Immovable
3. Redemption – No redemption on Chattel Mortgage, Redemption possible in Real Estate
4. In Real Estate Mortgage, in terms of deficiency, balance may be collected
FORECLOSURE
Sec. 63
Judicial - General Rule is that there is no RIGHT of Redemption Extra Judicial – RIGHT of Redemption is available
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• There is no need to cancel the title and mortgagee may even register without the consent of the mortgagor. • May and alien be a mortgagee? Yes
and may even foreclose, but they cannot own, hence they cannot be a bidder in an auction sale.
• How to Discharge Mortgage 1. Get a Release order or a
document pertaining to such discharge from the mortgagee 2. The Register of Deeds will
cancel the annotation
• Judicial - Governed by Sec. 68 of the Rules of Court
• Extra-judicial – Governed by Sec. 63 of 1529
•
When the debtor fails to comply with the principal obligation, the remedies are:
1. Foreclose the Mortgage 2. Seek for deficiency judgment • Creditor may only choose 1 remedy,
not both
• Separate civil action waives potential right afterwards
JUDICIAL FORECLOSURE
Steps:
1. File a complaint in the RTC where the land is situated a. All who has interest on the land are included as
party
2. Filing of an Answer by those who have interest on the land
3. Hearing
a. Determine the amount of the loan that is due 4. Judgment
5. Auction Sale
6. Certificate of Sale issued by the Sheriff
7. Hearing for confirmation of Certificate issued by the Sheriff
8. Order confirming the sale 9. Redemption if available
• Generally none in Judicial Foreclosure, exceptions:
1. Banking Institutions 2. DBP
3. Rural Banks
4. Banking and Financial Insitutions
• If the following are mortgaged individually, property cannot be redeemed except through EQUITY redemption.
Equity Redemption, made within 1 year from the confirmation of the Sale
• If the property is redeemed, the ownership retroacts to the date of the actual sale
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• If the property is not redeemed upon the expiration of the period,
mortgagee may execute the absolute deed of sale
• Upon Execution:
1. The deed shall be registered; 2. Certificate of Title shall be
cancelled;
3. New Certificate of Title is issued
EXTRA-JUDICIAL FORECOLOSURE
Allowed only if stipulated by the parties and expressly provided by law.
Steps:
1. File for foreclosure of mortgage with RTC where the land is situated through the Clerk of Court acting as the ex-officio Sheriff.
2. Clerk of Court dockets and returns to examine the application for Extra-Judicial foreclosure, after receiving the Filing Fee
3. Publication of Notice of Auction Sale in 3 conspicuous places
4. Raffle, the Sheriff the conducts the auction sale 5. Actual Auction sale
a. If the sale did not push through, there is a need for republication of the notice
b. The Sheriff records the bidding
c. The Sheriff issues the certificate of Sale o the highest Bidder
6. Mortgagee executes the deed of Sale.
• The deed of sale is NOT absolute because there is still a right of redemption
There is a RIGHT of Redemption, within 1 year from the time the certificate of Sale is registered. Reference must be made to the stipulation inserted in a mortgage authorizing the sale in case of default. Reason behind this is the Special Power of Attorney authorizing the sale in case of default.
When is there default?
When the obligation becomes due, in spite of the demand made by the creditor the debtor fails to comply.
• If the only stipulation in the S.P.A. is to mortgage, does it include the authority to sell? Yes, authority is implied • Mortgagee executes the Deed of Sale • Sheriff conducts the auction Sale • Senior Mortgagee (1st) has a better
right than the Junior mortgagee (2nd) • When property is foreclosed, the
Junior Mortgagee has a right to REDEEM, NOT to RETAIN Section 64. Special Power of Attorney
SPA – Authoriing a person to do a particular act, more specifically in dealings with Real Estate.
• The SPA in order to take effect must be annotated to the title and
Registered, otherwise it cannot be used.
INVOLUNTARY DEALINGS
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• Cooperation of the owner is nor necessary, and may even be done against his will
1. Attachment 2. Lis Pendens 3. Adverse Claim
A. Preliminary attachment - Attachment initiated at the time of filing the case. (Sec. 69)
Grounds:
1. Debtor is Insolvent 2. Debtor Absconds
• Attachment must be registered to have a preferential right over other creditors
• In the event that a favorable decision is rendered, the debt is paid from the property attached
Steps:
1. Secure order of attachment with description of property from the Register of Deeds
2. Notice that the property is Attached
3. Leave order with the Occupant
B. Levy – to go after the property for payment of debt C. Garnishment – attachment of money in possession of 3rd party, refers to money deposited in the bank.
• Involuntary dealings are deemed registered upon entry in the Day Book. (DBP vs. ROD of Nueva Ecija)
• Although they are not registered, knowledge after the levy is equivalent to registration
• Although the knowledge came after the Levy, purchaser may still be considered innocent purchaser for value since, at the time of the sale, he was still in good faith.
• Not all property are subject to Levy or Attachment, it is in this light that although the ROD’ s duty is ministerial, ROD may refuse to register if it cannot be levied. Examples:
1. CA 459
2. Family Home exempt from Execution
• Preferential Right – Determine the date of Registration of Attachment as it retroacts to the date of attachment of lien. It must be referred back to the date of registration of attachment. • Purpose of registration is to determine
who has a better right.
Adverse Claim
Purpose:
• To apprise a third person of such claim
• Protect Interests of the adverse complainant
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Characteristics:
• Claim must be adverse to registered land
• Claim should arise subsequent to the original registration
• Claim is last resort, as it cannot be registered in any other provision ex:
1. The Deed of Sale cannot be registered as an adverse claim, there is no other way to protect your interest.
• The lifespan of and adverse claim is 30 days, after which, it is not
automatically cancelled
• Registered land, despite a notice of adverse claim cannot be subject to acquisitive prescription
Lis Pendens – “Pending Suit”
• If case is directly related to property, it will affect the property
• If the case is directly affecting the land, it must be registered as Lis Pendens.
• Example:
1. Action for Declaring the Nullity of Marriage
a. Lis Pendens is
necessary because the property is directly affected, the dissolution of marriage will affect the property rights of the spouses
• Action of Sum of Money – no requirement of Lis Pendens • Sum of money with Prayer for
Attachment
a. Based on the opinion of Consulta, there should be no Lis pendens since attachment is merely incidental.
PATENT
WHEN IS GOVERNMENT GRANT DEEMED ACQUIRED BY OPERATION OF
LAW:
1. Deed of conveyance issued by government patent/grant
2. Registered with Register of Deeds – mandatory: operative act to convey & transfer title
3. Actual physical possession, open & continuous
• Land ceased to be part of public domain & now ownership vests to the grantee
• Any further grant by Government on same land is null & void Upon registration, title is indefeasible
Terms:
Emporium – power to govern subjects by the government
Dominium – Power to use, dispose of natural resources, lands, by the state
Public Domain – Unappropriated, not owned Public Land – Disposable or Alienable
Ancestral Domain – belongs to the indigenous
Delos Angeles vs. Santos - If public Land is granted to a private person, the patent is null and void.
Land Titles and Deeds Reviewer
2009
• Both Public Land Act and Torrens system are not binding unless registered.
• The proceeding in Homestead patents is administrative in nature. This, notwithstanding, the requirement to undergo the Torrens system still persists.
• PD 1529 applies when the subject matter is aprivate land by virtue of an imperfect title. (Sec. 14)
• Title issued pursuant to registration of patent is indefeasible when registered, at it is deemed incorporated with Torrens system; 1 year after issuance of patent
HOMESTEAD PATENT
Aims:
• Benevolent intention of government to distribute disposable agricultural land to destitute citizens for their home and cultivation
• As a matter of public policy, may be repurchased even if after 5 years provided not for profit
Right of repurchase not allowed if sold within family & not for cultivating or living but for speculation purpose
Procedure:
1. File a case with the Land Management Bureau 2. Upon approval, applicant will be authorized to take
possession
3. Within 6 months after approval, 1/5 of the land should be cultivated.
4. Notice of intention of the applicant must be submitted, and also the submission of Final proof of Possession of 1 year.
5. Survey shall be conducted
6. Patent shall be sent after payment of the fees
RESTRICTIONS:
• Sec. 118 of Public Land Act
o Land cannot be alienated or conveyed within 5 years after the approval of the application for patent. (Mandatory)
o There shall be no valid conveyance within 5 to 20 years from approval, if the conveyance is made without the approval of the secretary of DENR. (Directory)
EXCEPTIONS:
1. Those conveyed under the Rural Bank Laws 2. Those conveyed in favor of the Government
RIGHT OF REPURCHASE
• The Land belongs to the Patentee, if the same dies, it shall be transferred to his heirs.
• Right of Repurchase may be availed of within 5 years from the execution of the deed of conveyance
• Mortgage:
o If it is extra-judicial foreclosure, Redeem within 1 year from approval of the sale
Land Titles and Deeds Reviewer
2009
o If it is judicial foreclosure, Redeem within 1 year from confirmation of the sale.
o Hence under the Patent Law, the right of redemption sums up to 6 years.
CONSULTA
• A form of administrative Appeal
• Pertains to removal of submitted documents
• Happens when ROD is not sure what to do with the issue
• Remedy is to raise the issue to LRA for referral as to the proper measure to be taken
• Pursuant to Sec 17, if ROD denies the application, he must put in writing. And within 5 days may appeal to Consulta.
AGRARIAN REFORM LAW
P.D. 27 – Agrarian Reform Law
• Covers all lands planted with Rice and Corn • Emancipation Patent
o Gives retention area for land owners which shall be 7 hectares.
o Transfers ownership to tenants, provided they pay:
§ For the first 3 year-average of harvest, modify by 2.5
§ Ensure that the landowner will not be deprived of compensation
Sec. 104 Emancipation Patent
RA 6657 or the Comprehensive Agrarian Reform Law was enacted amending P.D. 27
• Covers lands regardless of kinds of crops • Redemption of Land owner
o Retention shall be 5 hectares
o Plus 3 hectares for each child, provided: § The child is more than 15 years old § The child must have actually tilled or
managed the land
• The option to choose or retain or determine which land to occupy belongs to the land owner, which shall be exercised within 6 months from the grant otherwise, BARO determines
• If the landowner shall take the land and the land is tenanted, the options of the tenant are:
1. The right to Remain and establish a leasehold Agreement, as a result losing his right as beneficiary.
2. Disregard the action hence becoming a beneficiary
• If land owner had already acquired 7 hectares from PD 27, will it diminish the right to get the 5 hectares from RA 6657? No, the law expressly so provides. Hence the law recognizes that the land holdings of a homesteader may amount to 12 hectares.
• Once a person has complied with the requirements, he will be issued a CLOA or a Certificate of Land
Ownership award.
o CLOA is equivalent to Emancipation Patent, which must be registered in the ROD. After which, a TCT will be issued.
o Such process puts the land under the Torrens system because of the issuance of the certificate of title. Consequently, holder may enjoy the privileges granted by the Torrens title.
Land Titles and Deeds Reviewer
2009
CERTIFICATE OF TITLE
Sec. 109-110 Certificate of Title • An evidence of ownership Sec. 109 Owner’s Certificate of Title• Importance of keeping the certificate of title
o A forger may validly convey the property under the following circumstances:
§ The transfer was made in the name of the forger
§ It was conveyed to an Innocent Purchaser for value
• Lost title, procedure for recovery: 1. Inform ROD of the loss/theft
2. File a petition for replacement of certificate, similar to the procedure in applying Original Certificate of Title, with the allegation of the loss/theft.
3. Verified under oath
4. Notice and Hearing to ROD and other interested parties
5. The court may direct issuance of a new duplicate certificate of title, wherein no publication is required.
