Land Title and Deed

8/3/2019 Land Title and Deed

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CIVIL LAW (LAND TITLES)MEMORY AID

BAR OPERATIONS 2002

CHAPTER 1: BACKGROUND, BASIC CONCEPTS & GENERAL PRINCIPLESLAND TITLE – evidence of the owner’s right or extent of interest, by which he can maintaincontrol and as a rule assert right to exclusive possession and enjoyment of property

DEED – instrument in writing by which any real estate or interest therein is created, alienated,mortgaged or assigned or by which title to any real estate may be affected in law or equity1. Grantor 4. Description of Property2. Grantee 5. Signature of grantor 3. Words of grant 6. Witnesses

T YPES OF ESTATES:

1. FREEHOLD ESTATE – indicates title of ownership

a. Fee simple – absolute title; conferred without limitation, qualification or restriction

b. Fee tail – pass title to grantee & his heirs

c. Life state – held for duration of life of grantee

2. LESS THAN FREEHOLD ESTATE – a right short of title

a. Estate for years – lease for a period agreed upon, lessor retains ownership of land

b. Tenancy from period to period – lease running from month to month or year toyear with automatic renewal

c. Tenancy at will – person is permitted to occupy land of another withoutstipulation as to period

3 STAGES OF DEVELOPMENT OF LEGAL S YSTEM OF TRANSFERRING TITLES:1. Production & delivery of deed by grantor to grantee without registration2. Recording of deed of conveyance to bind 3rd persons

3. Registration of title

REGISTRATION guarantees the title but RECORDING does not; need to examine other docs

PURPOSE OF REGISTRATION: 1. Serve as constructive notice2. Prevent fraudulent claims3. Protect interest of strangers to transaction

MODES OF ACQUIRING LAND TITLES:1. Title by public grant – conveyance of public land by government to a private individual2. Title by acquisitive prescription – open, continuous, exclusive, notorious possession of

a property

3. Title by accretion – alluvium4. Title by reclamation – filling of submerged land by deliberate act and reclaiming title

thereto; government5. Title by voluntary transfer – private grant; voluntary execution of deed of conveyance6. Title by involuntary alienation – no consent from owner of land; forcible acquisition by

state7. Title by descent or devise – hereditary succession to the estate of deceased owner 8. Title by emancipation patent or grant – for purpose of ameliorating sad plight of tenant-

farmers; not transferable except by hereditary succession

Chapter 2: TORRENS SYSTEM – ORIGIN, NATURE & GENERAL CHARACTERISTICSADVANTAGES:

1. Abolishes endless fees2. Eliminates repeated examination of titles3. Reduces records enormously4. Instantly reveals ownership5. Protects against encumbrances not noted on the Torrens certificate6. Makes fraud almost impossible7. It assures.8. Keeps up the system without adding to burden of taxation; system’sbeneficiaries pay the fees

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9. Eliminates tax titles10. Gives eternal title as state ensures perpetuity11. Furnishes state title insurance rather than private title insurance12. Makes possible the transfer of titles or loans within hours instead days

PURPOSE OF TORRENS LAW: quiet title to land – once registered, owner might rest secure

PERSONS BOUND WHEN TITLE NOT REGISTERED:1. Grantor 2. Heirs & devisees3. Persons with actual notice

PROCEDURE IN LAND REGISTRATION CASE:1. Survey of land by Bureau of Lands or duly licensed private surveyor 2. Filing of application for registration by applicant3. Setting of date of initial hearing of application by RTC4. Clerk of court to transmit to Land Registration Authority (LRA) the application,date of initial hearing & other pertinent docs5. Publication of notice of filing of application, date & place of hearing – in OG andin newspaper of general circulation6. Service of notice – contiguous owners, occupants & those who have interest inproperty7. Filing of answer or opposition to application8. Hearing of case by RTC9. Promulgation of judgment by court10. Issuance of decree by RTC – decision; Instruct LRA to issue decree of confirmation & registration11. Entry of decree of registration in Land Titles Administration12. Sending of copy of decree to Register of Deeds (ROD)13. Transcription of decree of registration in registration book & issuance of the

owner’s duplicate original certificate of title of the applicant by the LRA - upon paymentof prescribed fees

CHAPTER 3: APPLICATION IN ORDINARY REGISTRATION PROCEEDINGSWHO MAY APPLY:

1. Those in open, continuous, exclusive, notorious possession of patrimonialproperty of state under bona fide claim of ownership since June 12, 1945 or earlier 2. Those who acquired ownership of private land by prescription3. Those who acquired ownership of private lands by right of accretion4. Those who acquired ownership in any manner provided for by law

LIMITATION TO OWNERSHIP OF LAND BY CORPORATION:

1. PRIVATE LANDSa. At least 60% Filipino to acquire private landb. Restricted as to extent reasonably necessary to enable it to carry outpurpose which it was createdc. If engaged in agricultural – restricted to 1,024 ha.

2. PATRIMONIAL PROPERTY OF STATEa. Lease for 25 years renewableb. Limited to 1,000 ha.c. Apply to both Filipinos & foreign cos.

FORM & CONTENTS OF APPLICATION

1. In writing & signed by applicant or person duly authorized

2. Description of land3. Citizenship4. Civil status5. Full names & address of occupants & adjoining owners

WHAT TO ACCOMPANY APPLICATION:1. Tracing cloth plan duly approved by the Director of Lands2. 3 copies of technical descriptions3. 3 copies of surveyor’s certificate

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4. All original muniments of title5. 4 copies of certificate by city/provincial treasurer of assessed value of land

AMENDMENTS ALLOWED & NOT ALLOWED

1. Substantial change in boundaries or increase in area - new technical description

necessary – need new publication & notice2. Substitution of name of new owner – file motion with court3. Decrease the area – file motion in court

MUNIMENT OF TITLE – instruments or written evidence which applicant hold or posses to enablehim to substantiate & prove title to his estate

TRANSACTION TOOK PLACE BEFORE ISSUANCE OF DECREE:1. Record instrument in ROD in same manner as if no application was made2. Present instrument to RTC, motion praying that same be considered in relationto the pending application

TRANSACTION TOOK PLACE AFTER ISSUANCE OF DECREE:• Register directly with ROD for purpose of canceling such title & issuing a TCT

CHAPTER 4: PUBLICATION, ANSWER & DEFAULTNOTICE IN CONSPICUOUS PLACE IN LAND & BULLETIN BOARD OF MUNICIPALITY – 14 days before hearingHEARING – within 7 days after publication in OG

– not less than 45 not more than 90 days from date of order

TO WHOM NOTICE MUST BE SENT:1. City/municipal mayor & provincial governor 2. Department of Agrarian Reform, Solicitor General & Director of Lands, Director of Fisheries, Director of Mines3. Adjoining owners & those who have rights or interest thereto

REQUISITES OF OPPOSITION: 1. Set forth objections to the application2. State interest claimed by oppositor

GENERAL DEFAULT is when no person appears and answers within time prescribed whileSPECIAL DEFAULT is when a party appears at initial hearing without having filed an answer andasks court for time to file answer but failed to do so within period allowed

CHAPTER 5: HEARING & EVIDENCEWHO CONDUCTS HEARING: 1. RTC

2. Refer to Referee - Commissioner

PROCEEDINGS FOR ORDINARY REGISTRATION (LAND REGISTRATION ACT) /PROCEEDING FOR JUDICIAL CONFIRMATION OF IMPERFECT TITLE UNDER THE PUBLIC LAND ACT

• There exist a title to be confirmed• Land applied for belongs to the state• Court may dismiss without prejudice to file new application• Dismiss with prejudice• Risk to have application denied without losing land• Risk involves loss of land

CHAPTER 6: JUDGMENT & DECREEDECREE – issued by LRA containing technical description of land; issued after finality of

judgment

1. Decrees dismissing application2. Decrees of confirmation and registration• Final 1 year after decree, unless there is an innocent purchaser for value• Subject only to appeal• Once final, cannot be subject to attack and is deemed conclusive againstthe world

3. Put end to litigation4. Purpose of Torrens system is protected

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• Amendment after 1 year is allowed - creation or extinguishment of newrights; inclusion of new owners not allowed

JUDGMENT – decision of court constituting its opinion after taking into consideration the evidencesubmitted

WRIT OF POSSESSION – order to sheriff to deliver the land to the successful party litigant; noprescription

1. Against loser 2. Against anyone unlawfully & adversely occupying

WHEN WRIT MAY NOT ISSUE: when party entered into property after issuance of final decree, is notan oppositor in registration proceeding, and is in possession of land for at least 10 years

MEANS TO RECOVER POSSESSION: 1. Forcible entry2. Unlawful detainer 3. Accion publiciana4. Accion reindivicatoria

RES JUDICATA:1. Former judgment must be final2. Rendered by court having jurisdiction over subject matter & parties3. Judgment on merits4. Identity of parties, subject matter and causes of action

REMEDIES AVAILABLE TO AGGRIEVED PARTY IN REGISTRATION PROCEEDINGS:

1. MOTION FOR NEW TRIAL - must be brought within 15 days from notice of judgment

a. Fraud, accident, mistake, excusable negligence which ordinary prudencecould not have guardedb. Newly discovered evidence which could not be discovered & produced at

trialc. Evidence insufficient to justify decision, decision is against the law

2. APPEAL – must be brought 15 days from notice of judgment

3. REVIEW OF DECREE OF REGISTRATION – available to party deprived of dayin court; became non-party due to misrepresentation; invoke actual fraud; beforeexpiration of 1 year; specific acts intended to deceive; will no longer prosper if alreadytransferred to innocent purchaser for value

a. Plaintiff is owner of land registered in name of defendantb. Registration procured through actual fraudc. Property has not issued to innocent purchaser for valued. Action is filed within 1 year after issuance of decree of registration

4. RELIEF FROM JUDGMENT – 60 days – 6 months after entry of order; availableto party to case, FAME; after judgment; person deprived of right is party to case

5. RECONVEYANCE – action in personam; available so long as property not yetpassed to innocent purchaser for value; bad faith or with notice of defect6. RECOVERY FOR DAMAGES

a. Person is wrongfully deprived of his land by registration in name of another – actual or constructive fraudb. No negligence on his partc. Barred/ precluded from bringing an actiond. Action for compensation has not prescribed

CHAPTER 7: CERTIFICATE OF TITLETORRENS TITLE – certificate of ownership issued under the Torrens System of registration by the

government through road naming & declaring owner in fee simple of property described thereinfree from all liens except those expressly noted

PROCESS:1. Within 15 days from finality of order of judgment directing registration of title –court to order LRA to issue decree of registration and certificate of title2. Clerk of court will send order of court & copies of judgment

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3. Administrator to issue decree of registration & original & duplicate of OCT –signed by Administrator, entered & file decree of registration in LRA4. Send to ROD – original & duplicate of title & certificate for entry in hisregistration book5. Enter in record book, dated, signed, numbered & sealed – take effect upon date

of entry6. ROD to send notice to registered owner ready for delivery after payment of fees7. ROD shall send duplicate & note on each certificate of title to whom it is issued8. Original copy to be filed in ROD; bound in consecutive order

ACTION FOR PARTITION, SPLITTING OR CONSOLIDATION OF TITLES:1. Splitting or consolidation – ordinary – ROD level, no court involved2. Subdivision plan – approval of NHA, final approval of LRA, then ROD to issuememorandum that streets not to be disposed except by way of donation to govt. shallbe effected without approval of NHA

ANNOTATIONS AT BACK OF CERTIFICATE – need court order, otherwise null & void

CHAPTER 8: VOLUNTARY DEALINGS WITH REGISTERED LANDOPERATIVE ACT – registration by owner; if deed is not registered, it is binding only betweenparties

PROCESS OF REGISTRATION:1. File instrument creating or transferring interest and certificate of title with ROD

a. Owner’s duplicateb. Payment of fees & documentary stamp taxc. Evidence of full payment of real estate taxd. Document of transfer – 1 copy additional for city/provincial assessor

2. ROD shall make a memorandum on the certificate of title, signed by him3. Issue TCT

VOLUNTARY DEALINGS: need to present title to record the deed in registry & to make memorandumon title while in INVOLUNTARY DEALINGS: No presentation required; annotation in entry book issufficient

FORMAL REQUISITES OF A DEED

1. Full name2. Nationality3. Place of residence4. Postal address of grantee or other persons acquiring or claiming interest5. Civil status6. Whether or not corporation

1. ROD to keep an entry book – day book2. Enter in order of reception all deeds & voluntary instruments, write & processesre land -year, month, day, time, minute of reception of instrument; Registered fromtime of entry3. Fees of 5 pesos per document to be paid within 15 days4. Note memorandum & sign & issuance of certificate5. Documents are numbered & indexed & indorsed with reference to certificate of title– public records6. Subject to reasonable regulation

• Cost borne by vendor

CHAPTER 9: REAL ESTATE MORTGAGEREAL ESTATE MORTGAGE – real property/real rights secures fulfillment of an obligationKINDS:

1. Conventional – agreed upon by parties2. Legal – created by operation of law3. Judicial – results from a judgment

4. Equitable – pacto de retro in form but mortgage in essence

ESSENTIAL REQUISITES:

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1. Constituted to secure fulfillment of principal obligation2. Mortgagor be absolute owner of thing mortgaged3. Person constituting mortgage has free disposal of property

SPECIAL CHARACTERISTICS:

1. Subject matter is realty2. Real right – attaches to property wherever it is & whoever holds it3. Accessory – presupposes existence of valid principal obligation; cannot standalone4. Indivisibility – even if debt is divisible; mortgage is not5. Inseparability – mortgage lien is inseparable from property6. Retention of possession - mortgagor retains possession

P ACTO DE R ETRO – EQUITABLE MORTGAGE

1. Price of sale with right to repurchase is usually inadequate2. Vendor remains in possession as lessee or otherwise3. Upon or after expiration of right to repurchase, another instrument extendingperiod /granting new period is executed4. Purchaser retains a part of the purchase price5. Vendor binds himself to pay taxes on thing sold6. Real intention of parties is that transaction shall secure payment of debt or fulfillment of other obligation

Real Mortgage Chattel MortgageSubject matter is real property Subject matter is movablePublic document only May be in private document provided

there is affidavit of good faithRight of redemption for 1 year No right of redemptionDeficiency can be recovered Deficiency cannot be recovered

EXECUTION & REGISTRATION

1. Execution of deed in a form sufficient in law (public instrument)2. Registration with ROD where the land lies & take effect upon registration

a. Present deed of mortgage together with owner’s duplicateb. Payment of feesc. ROD shall enter upon original certificate of title & upon duplicate a

memorandum – date, time of filing, signature, file number assigned to deedd. ROD to note on deed the date & time of filing & reference to volume & page of

registration book in which it was registered3. No duplicate need be issued

SUBJECT MATTER

• Real property plus all its accessions unless contrary is stipulated• Future property – without legal effect• Future improvements – deemed included• Fruits & rents of mortgaged property deemed included• Continuing credit secured by mortgage valid

FORMS:1. Private document – void & inexistent

2. Public instrument but not recorded – binding between parties but not 3rd personswithout notice

3. Public document & registered – valid & binding to 3rd parties

MAY MORTGAGE BE REGISTERED WITHOUT DUPLICATE TITLE: Yes• If being withheld by the owner, ROD notifies by mail within 24 hours toregistered owner:

1. Stating that mortgage has been registered2. Requesting that owner’s duplicate be produced so that memorandum bemade thereof

• Owner refuses to comply within reasonable time; ROD to notify court & courtmay enter order requiring owner to produce certificate

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SUBSEQUENT DEALINGS IN MORTGAGED PROPERTY

1. May be further alienated – stipulation to contrary is void• Assignment must also be registered since registration is operative act toaffect land•

If not recorded – valid as to parties but not to 3

rd

parties, right notprotected against somebody who registers & procures better right2. May be further mortgaged – stipulation to contrary is void

• No need to secure permission of mortgagee• Understood unless prohibited in contract

3. Pactum commisorium – not alloweda. Property is mortgagedb. There is stipulation for automatic appropriation

4. Discharge• Execute public document canceling or releasing mortgaged in formprescribed by law• Present instrument with ROD where land lies together with owner’sduplicate for registration• Memorandum of cancellation is annotated on duplicate & original

WHEN MORTGAGOR DIES

1. Abandon security & prosecute his claim by sharing in general distribution of assets of the estate

2. Foreclose mortgage by making executor party defendant3. Foreclose it in due time

PARTIES IN FORECLOSURE SUIT: all persons claiming interest subordinate in right to mortgageeACTION TO FORECLOSE: Prescribes in 10 years (written contract)VENUE: Per stipulation or in absence thereof, where the property lies

FORECLOSURE

1. JUDICIALa. Mortgagee to petition in court for foreclosureb. Court to render order for debtor to pay sum due within 90 days and if not paid

from date of service, property be sold at public auctionc. Notice & Publicationd. Public auction: sale to highest bidder e. Sheriff to issue certificate confirming judicial foreclosuref. File with ROD final decree of court confirming saleg. Memo entered in certificate of titleh. If right of redemption exist, certificate of title of mortgagor not to be cancelled

but memorandum shall be entered upon the certificate duplicate & original

i. After expiry of 1 year redemption period & no redemption, title is consolidated tonew owner

j. Purchaser to be entitled to new certificate of title & memorandum endorsed onmortgage deed

k. If there is redemption, memorandum to be annotated on certificate of title

2. EXTRA-JUDICIAL• Allowed only if stipulation between party authorizes extra-judicialforeclosure• Cannot be made legally outside of city where land lies• Publication required: post notices for 20 days in 3 public places whereproperty lies & if property is more than P400.00, publication must be for 3

consecutive weeks in news paper of general circulation• If foreclosure by rural banks, exempt from publication in newspaper for loans not exceeding 3,000.00• Registration of sale in ROD:

a. Deed of sale must be supported by certificate of sheriff that saidsale was conducted accordingly stating the date, time, place of sale,names of creditor & debtor, description of property, name of highestbidder, selling priceb. Present in ROD where land lies

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c. Memorandum on back of certificate is maded. After expiration of 1 year of redemption period – title isconsolidated if no redemption exercised: purchaser to file with ROD thedeed of sale & sworn statement attesting to fact that there is noredemption

e. New certificate of title issued in favor of vendeef. If redeemed – notice of redemption shall be registered &accomplished by way of memorandum on proper certificate of title

RIGHT OF REDEMPTION

• Payment of purchase price plus 1% per month plus taxes if paid by purchaser • To be exercised within 1 year after registration of sale

RIGHT TO DEFICIENCY – allowed

CHAPTER 10: CHATTEL MORTGAGECHATTEL MORTGAGE – personal property is registered with ROD to secure performance of anobligationSUBJECT MATTER: movablesDEED OF MORTGAGE: requires only description to enable parties & other persons to identify thesubject matter

REGISTRATION OF CHATTEL MORTGAGE

1. Execution of document2. Payment of fees3. ROD enters in DAY BOOK in strict order of their presentation chattel mortgages & other

instruments relating thereto (primary process)4. ROD thereafter enters in a more detailed form the essential contents of the instrument

in the Chattel Mortgage Register (complementary process)

EFFECT OF REGISTRATION:1. Creates a lien – attaches to the property whoever holds it; binding on subsequent

purchasers2. Constructive notice

SALE OF CHATTEL WITHOUT CONSENT OF MORTGAGEE – void; criminal act

EFFECT OF FAILURE TO REGISTER:• Valid between parties but void against 3rd persons• If instead of registration, it is delivered – it shall be a pledge & not chattelmortgage (if no chattel mortgage deed executed)• Actual knowledge is same effect as registration

AFFIDAVIT OF GOOD FAITH: Statement That –1. Mortgage is made to secure obligation specified2. Valid & just obligation3. Not entered into for purpose of fraud

EFFECT OF ABSENCE OF AFFIDAVIT OF GOOD FAITH:• Vitiates mortgage as against creditors & subsequent encumbrances• Valid as between parties• No need to be in public document

ASSIGNMENT OF MORTGAGE: No need to be registered, permissive only & not mandatory

CANCELLATION OF CHATTEL MORTGAGE: Mortgagee to execute a discharge of the mortgage inmanner provided by law

FORECLOSURE OF MORTGAGE

• There must first be non-payment & at least 30 days have elapsed since then• Alternatives:

1. Judicial2. Extra-judicial – only if there is stipulation/authority

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PROCEDURE IN FORECLOSURE

1. Notice posted for 10 days in at least 2 public places in municipality where property is tobe sold designating the time, place and purpose of sale

2. Mortgagor is notified in writing at least 10 days before sale3. Public auction

4. 30 days after sale, officer makes a return & file with ROD where mortgage has beenrecorded5. Officer’s return operates as a discharge of the lien created by the mortgage6. Proceeds to be applied:

a. Cost of saleb. Amount of obligationc. Subsequent mortgagesd. Balance – mortgagor

RECOVERY OF DEFICIENCY: Allowed

CHAPTER 11: LEASELEASE - one of the parties deliver possession of property to another who is obliged to pay rentfor use of such property

REGISTRATION OF LEASE

1. File with ROD the instrument creating lease together with Owner’s Duplicate of certificate of title

2. ROD to register by way of memorandum upon certificate of title3. No new certificate shall be issued

WHEN THERE IS PROHIBITION IN MORTGAGED PROPERTY AS REGARDS SUBSEQUENT CONVEYANCES, ETC.:Leasehold cannot be registered in the title thereof

EFFECT OF REGISTRATION:

1. Creates a real right but without prejudice to rights of 3rd persons2. If not registered – valid as between parties but not to 3rd persons without notice

REGISTRATION – lessor not required to initiate; lessee shall initiate

ALIENS:1. May be granted temporary rights for residential purposes2. Limit: 25 years, renewable for another 25 years

WHO ELSE MAY REGISTER: Builder in Good Faith

CHAPTER 12: TRUSTS & POWERS OF ATTORNEY

TRUST – obligation of a person to whom legal title to property is transferred to hold the propertyaccording to confidence reposed in him

2 KINDS:1. Expressed – need to be in writing; cannot be proved by parole evidence2. Implied – exist by operation of law; can be proved by parole evidence

a. Property is bought but paid by another partyb. Donation is made but donee have no beneficial interest thereonc. Price of sale of property is loaned & conveyance is made to lender tosecure fulfillment of loand. Land passes by succession to a person but legal title is put in another’sname

e. 2 persons purchase property but placed only in one’s namef. Guardian uses funds of ward to buy propertyg. Property is acquired thru mistake or fraud

POWER OF ATTORNEY – authority granted to a person to dispose one’s property

TRUST DIFFERENTIATED FROM POWER OF ATTORNEY

1. Trust has 3 parties while power of attorney has 2 parties

2. Trust is for benefit of 3rd party while power of attorney is for benefit of principal

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REGISTRATION OF TRUST

1. Sworn statement claiming interest by reason of an implied trust with descriptionof land & reference to number of certificate shall be registered in ROD2. Provided not prohibited to do so by instrument creating the trust

APPOINTMENT OF TRUSTEE BY COURT

• Certified copy of decree shall be presented to ROD & surrender duplicatecertificate• Cancel duplicate & new certificate shall be entered by ROD

ACTION FOR RECONVEYANCE BASED ON IMPLIED TRUST

• Prescribes in 10 years• If acknowledged in written form – becomes express trust – prescribes uponrepudiation

CHAPTER 13: INVOLUNTARY DEALINGS WITH REGISTERED LANDINVOLUNTARY DEALINGS – transactions affecting land in which cooperation of registered owner isnot needed: it may even be against his will

ATTACHMENT

• A writ issued at the institution or during progress of an action commanding thesheriff to attach the property, rights, credits or effects of the defendant to satisfydemands of the plaintiff • Kinds: a. Preliminary

b. Garnishmentc. Levy on execution

REGISTRATION OF ATTACHMENT /OTHER LIENS

1. Copy of writ in order to preserve any lien, right or attachment upon registered

land may be filed with ROD where land lies, containing number of certificate of title of land to be affected or description of land2. ROD to index attachment in names of both plaintiff & defendant or name of person whom property is held or in whose name stands in the records3. If duplicate of certificate of title is not presented:

a. ROD shall within 36 hours send notice to registered owner by mail stating thatthere has been registration & requesting him to produce duplicate so thatmemorandum be made

b. If owner neglects or refuses – ROD shall report matter to courtc. Court after notice shall enter an order to owner to surrender certificate at time &

place to be named therein4. Although notice of attachment is not noted in duplicate, notation in book of entry of ROD

produces effect of registration already

EFFECT OF REGISTRATION OF ATTACHMENT:1. Creates real right2. Has priority over execution sale3. But between 2 attachments – one that is earlier in registration is preferred4. If not registered – actual knowledge is same as registration

DUTY OF ROD• Basically ministerial but may refuse registration in ff circumstances:

1. Title to land is not in the name of defendant2. No evidence is submitted to show that he has present or possible future

interest in land3. Unless: heir

PROPERTIES EXEMPT FROM EXECUTION: Family Home

ATTACHMENT – How continued, reduced or discharged• Any method sufficient in law• Document to be registered

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1. EXECUTION SALE• To enforce a lien of any description on registered land, any execution or affidavit to enforce such lien shall be filed with ROD where land lies• Register in registration book & memorandum upon proper certificate of title as adverse claim or as an encumbrance•

To determine preferential rights between 2 liens: priority of registration of attachment

2. TAX SALE• Sale of land for collection of delinquent taxes and penalties due thegovernment• In personam (all persons interested shall be notified so that they aregiven opportunity to be heard)• Notice to be given to delinquent tax payer at last known address• Publication of notice must also be made in English, Spanish & localdialect & posted in a public & conspicuous place in place wherein property issituated & at main entrance of provincial building• Sale cannot affect rights of other lien holders unless given right todefend their rights: due process must be strictly observed• Tax lien superior to attachment• No need to register tax lien because it is automatically registered oncethe tax accrues• But sale of registered land to foreclose a tax lien need to be registered

PROCEDURE OF REGISTRATION OF TAX SALE:1. Officer’s return shall be submitted to ROD together with duplicate title2. Register in registration book3. Memorandum shall be entered in certificate as an adverse claim or encumbrance4. After period of redemption has expired & no redemption (2 years from registration of

auction sale) cancellation of title & issuance of new one

5. Before cancellation, notice shall be sent to registered owner: to surrender title & showcause why it shall not be cancelled

ACTUAL KNOWLEDGE IS EQUIVALENT TO REGISTRATION OF ADVERSE CLAIM

1. Make a statement in writing setting forth alleged interest, from whom acquired, howacquired, no. of certificate of land, name of registered owner, description of land inwhich right/interest is claimed – signed & sworn to

2. Statement shall be entitled to registration as adverse claim on certificate of title3. Effective for 30 days from date of registration4. After 30 days, may be cancelled by filing of verified petition by party in interest

• Any party may petition in court to cancel adverse claim• Court to grant speedy hearing

• If adverse claim is adjudged invalid – may be cancelled5. No 2nd adverse claim based on same ground shall be registered by sameclaimant

CHAPTER 14: REGISTRATION OF LIS PENDENS PURPOSE: keep subject matter within the power of the court until the entry of final judgment ---therefore creates merely a contingency & not a lien

EFFECT OF REGISTRATION:1. Impossibility of alienating the property in dispute during the pendency of the suit – may

be alienated but purchaser is subject to final outcome of pending suit

2. ROD duty bound to carry over notice of lis pendens on all new titles to be issued

CANCELLATION OF LIS P ENDENS : 1. Before final judgment – court may order cancellation after showing that notice is only

for purpose of molesting an adverse party or it is not necessary to protect rights of partywho caused it to be registered

2. ROD may also cancel by verified petition of party who caused such registration3. Deemed cancelled when certificate of clerk of court stating manner of disposal of

proceeding is registered

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NOTICE OF LIS P ENDENS IS AN INVOLUNTARY TRANSACTION

• Sufficient that there is entry in day book

OTHER PARTIES WHO NEED TO REGISTER:1. ASSIGNEE IN INVOLUNTARY PROCEEDING FOR INSOLVENCY

•

Duty of the officer serving notice to file copy of notice to ROD where theproperty of debtor lies• Assignee elected or appointed by court shall be entitled to entry of newcertificate of registered land upon presentment of copy of assignment withbankrupt’s certificate of title (duplicate)• New certificate shall not state that it is entered to him as assignee or trustee in insolvency proceedings

JUDGMENT /ORDER VACATING INSOLVENCY PROCEEDINGS

• Order shall also be registered• Surrender title issued in name of assignee & debtor shall be entitled toentry of new certificate

2. GOVERNMENT IN EMINENT DOMAIN• Copy of judgment file in ROD which states description of property,certificate number, interest expropriated, nature of public use• Memorandum shall be made or new certificate of title shall be issued

CHAPTER 15: TRANSMISSION BY DESCENT AND DEVISEWHEN OWNER OF PROPERTY DIES – testate or intestate,

• Administrator shall file with ROD registration of property in his name to bevested with ownership as trustee so he can sell, etc, convey, etc• Not necessary if already empowered in the will

WHEN JUDICIAL PROCEEDING NOT NECESSARY

• Heirs may partition estate immediately & no need to be burdened withcost/expenses of an administrator

1. In absence of debts2. Heirs are all of legal age

PARTITION /SETTLEMENT OF ESTATE

1. JUDICIAL• After entry of final judgment of partition, copy certified by clerk of court tobe filed with ROD• Each owner to give separate certificate of title (duplicate)• If ordered to be sold, purchaser shall be entitled to a certificate of titleentered in his name upon presentment of order confirming sale

2. EXTRAJUDICIALa. Decedent died intestateb. No debtsc. Heirs are all of legal age, or minors represented by guardian

• Heirs to execute public instrument to be filed with ROD• If disagree with each other, file in court ordinary action for partition• If there is only 1 heir, may adjudicate to himself entire estate viaaffidavit to be filed with ROD• If there are movables involved, bond to be filed equivalent tovalue of property as certified under oath by parties conditioned uponpayment if any just claim which may be filed by creditor within 2 years

after distribution• Publication in newspaper of general circulation for 3 weeks; notbinding to those without notice• Final after 2 years

ORAL PARTITION, WHEN DEEMED VALID

• In provinces when person dies leaving property not covered by Torrens system – to avoid legal expenses, heirs make a list of property, pay off debts & assign to each

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• Statute of frauds – do not operate because it is not a conveyance but aseparation of property and designation of part which belongs to them

WILLS AND LETTERS OF ADMINISTRATION

• Executor required to file with ROD a certified copy of his letters of administration or the

will if there is a will in order that ROD may register upon certificate a memorandum withreference to file no & date of filing

COURT AUTHORITY NEEDED IN ORDER TO SELL

1. May be dispensed with if will empowers him sell2. Without authority first secured, heir may sell subject to result of pending administration

CHAPTER 16: ASSURANCE FUND• State creates a fund for the compensation of persons injured by divesting/cutting off of

rights due to the indefensibility of title; following that act of registration is operative actby which State transfers title; created to relieve innocent persons from harshness of doctrine that certificate of title is conclusive evidence of an indefeasible title to land.

• Upon entry of certificate in name of owner or TCT, ¼ of 1% shall be paid to ROD basedon assessed value of land – as contribution to assurance fund; if no assessment yet,sworn declaration of 2 disinterested persons subject to determination by court.

• Money shall be under custody of the National treasurer; invest it until principal plusinterest aggregates to 500,000, excess shall be paid to the Assurance Fund; annualreport of Treasurer to Secretary of Budget

WHO IS ENTITLED:1. Claimant must be

owner, purchaser or encumbrancer in good faith who suffered actual damage by loss of land; in short – he is deprived of his land or interest therein

2. No negligenceattributable to him

3. Claimant is barredfrom filing action to recover said land

4. Action to recover from assurance fund has not prescribed

LOSS /DAMAGES SHOULD NOT BE DUE TO FOLLOWING REASONS:1. Breach of trust2. Mistake in resurvey resulting in expansion of area in certificate of title

LOSS /DAMAGES SHOULD BE DUE TO THE FOLLOWING REASONS:

Omission, mistake, misfeasance of ROD or clerk of courtRegistration of 3rd persons as owner Mistake, omission, misdescription in certificate of title, duplicate or entry in booksCancellation

AGAINST WHOM ACTION IS FILED:1. Action due to deprivation of land due to mistake, negligence, omission of ROD, etc –

ROD and National Treasurer as defendants; Sol-Gen must appear 2. Private persons involved – should also be impleaded

LIABILITY:1. Satisfy claims from private persons first

2. When unsatisfied – secondary liable is the National Treasurer who shall pay thruassurance fund; thereafter Government shall be subrogated to rights of plaintiff to goagainst other parties or securities

MEASURE OF DAMAGES:• Based on amount not greater than fair market value of land• Amount to be recovered not limited to 500,000 which is maintained as standingfund

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• If fund is not sufficient, National Treasurer is authorized to make up for deficiency from other funds available to Treasury even if not appropriated

WHERE AND WHEN TO FILE ACTION AGAINST ASSURANCE FUND:1. Any court of competent jurisdiction – RTC in city where property lies or resident

of plaintiff 2. Action prescribes in 6 years from time plaintiff actually suffered loss3. If plaintiff is minor, insane or imprisoned – has additional 2 years after disabilityis removed to file action notwithstanding expiration of regular period

CHAPTER 17: PETITIONS AND MOTIONS AFTER ORIGINAL REGISTRATION1. LOST DUPLICATE CERTIFICATE

• Sworn statement that certificate is lost to be filed by person in interestwith ROD• Petition to court for issuance of new title• After notice and hearing – court to order issuance of new title withmemorandum that it is issued in place of lost certificate (duplicate)• If false statement: complex crime of estafa thru falsification of publicdocument

2. ADVERSE CLAIM IN REGISTERED LAND• Whoever claims a better right or interest in a land adverse to theregistered owner shall make written statement alleging his right, how and whenacquired with description of land• Statement to be signed and sworn to• Entitled to registration as adverse claim – noted on certificate of title• If there is petition – speedy hearing, determine validity of adverse claim• May be cancelled without court order; effective only for 30 days• After cancellation, no adverse claim on same ground may be registeredby same claimant: Adverse to registered owner

Arises after original registrationCannot be registered under the land registration act

• To be made on original certificate, to the duplicate is not necessarybecause no access to latter • Contracts of lease, contract to sell but prescription & money claims notallowed• Purpose: measure designed to protect the interest of a person over aproperty where registration is not provided for by the land registration act; serveas notice and warning to persons subsequently dealing on said land• Different with lis pendens: permanent; can only be removed after hearingis done but adverse claim is only for 30 days: lis pendens – notice that propertyis in litigation; adverse claim; somebody is claiming better right

• Recent ruling: adverse claim can only be removed upon court order

3. PETITION SEEKING SURRENDER OF DUPLICATE TITLE• In voluntary and involuntary conveyances – when duplicate cannot beproduced, petition in court may be filed to compel surrender of certificate of titleduplicate to ROD• After hearing, may order issuance of new certificate and annul the oldcertificate; new certificate shall contain annotation re annulment of old certificate

4. AMENDMENT AND ALTERATION OF CERTIFICATE OF TITLE• A certificate of title cannot be altered, amended except in directproceeding in court; summary proceeding•

Entries in registration books not allowed to be altered except by order of court• Grounds:

1. New interest not appearing on the instrument have been created2. Interest have terminated or ceased3. Omission or error was made in entering certificate4. Name of person on certificate has been changed5. Registered owner has married6. Marriage has terminated

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7. Corporation which owner registered land has dissolved and hasnot conveyed the property within 3 years after its dissolution

• What corrections are permitted in title (which does not include landsincluded in original; technical description as long as original decree of registration will not be reopened and rights or interest of persons not impaired;

old survey was incorrect; substitution of name of registered owner)1. Alterations which do not impair rights and2. Alterations which impair rights – with consent of all parties3. Alterations to correct obvious mistakes

5. RECONSTITUTION OF ORIGINAL CERTIFICATE OF TITLE• As consequence of war – records have been destroyed• When reconstituted – have same validity as old title• Can only be done judicially by filing a petition for reconstitution with RTC• To be published in OG for 2 consecutive issues and on main entrance of municipality at least 30 days before hearing• In rem proceedings• Court to order reconstitution if it deemed fit; issue order to ROD• Lack of essential data fatal

6. TRANSACTION EVIDENCED BY LOST DOCUMENT – HOW REGISTERED• ROD forbidden to effect registration of lost or destroyed documents• Steps by interested parties:

1. Procure authenticated copy of lost or destroyed instrument2. Secure an order from court

CHAPTER 18: FEES, OFFENSES, PENALTIES• In connection with original and subsequent registration of lands – payable toClerk of court, ROD, sheriff • Full payment of fees prerequisite to registration: at least the entry fee of 5.00,

rest of the fees due payable within next 15 days

OFFENSES:1. Larceny2. Perjury – false statement under oath3. Fraudulent procurement of certificate: fine of not more than 10,000 or imprisonment of 5 years or both in discretion of court4. Forgery: fine of not more than 10,000 or imprisonment of 10 years or both indiscretion of court

a. Forging of seal in ROD, name, signature or handwriting of any officer of court of RODb. Fraudulent stamping or assistance in stamping

c. Forging of handwriting, signature of persons authorized to signd. Use of any document which an impression of the seal of the ROD isforged

5. Fraudulent sale: sale of mortgaged property under the misrepresentation that itis not encumbered; deceitful disposition of property as free from encumbrance:imprisonment of 3 years or fine not exceeding 2,00 or both at discretion of court

CHAPTER 19: REGISTRATION OF PUBLIC LANDSPUBLIC LANDS – all lands owned by the government

• Inalienable and alienable• Inalienable – public domain: timber and miner lands• Alienable/ Disposable - public agricultural land

PUBLIC LAND MAY BE ALIENATED, CONVEYED TO PRIVATE PERSON.

PROCEDURE:1. Official issuing instrument of conveyance to issue instrument2. File instrument with ROD3. Instrument to be entered in books and owner’s duplicate to be issued

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4. Instrument – only contract between Government and private person and doesnot take effect as conveyance if unregistered, it is registration which is operative act of conveying land; evidence of authority for ROD to register 5. Fees to be paid by grantee6. After issuance of certificate of title, land is deemed registered land within the

purview of the Torrens system

NATURE OF TITLE TO PUBLIC LANDS CONVEYED: INDEFEASIBLE AND CONCLUSIVE

• In absence of registration, title to public land is not perfected and therefore notindefeasible• In case of 2 titles obtained on same date – one procured through decree of registration is superior than patent issued by director of lands• 2 titles procured by one person – one from homestead patent, one from judicialdecree & sold to 2 different persons, one who bought it for value and in good faith &one who register first shall have preference

CLASSIFICATION OF LAND OF PUBLIC DOMAIN:• Classification is exclusive prerogative of executive & not by judiciary• Anyone who applies for confirmation of imperfect title has burden of proof to overcome

the presumption that the land sought to be registered forms part of public domain(Regalian doctrine)

U NDER THE C ONSTITUTION :1. Agricultural – only one subject to alienation2. Forest or timber 3. Mineral lands4. National park

U NDER THE P UBLIC L AND ACT :1. Alienable/disposable

a. Agriculturalb. Residential, commercial, industrialc. Educational, charitabled. Town sites and for public and quasi-public uses

2. Timber lands - inalienable3. Mineral lands inalienable

• If patent or title is issued – void ab initio for lack of jurisdiction• Not subject to acquisitive prescription; even if in possession for longtime, will not ripen into ownership• Except: mineral lands and forest lands acquired before inauguration of Commonwealth in November 15, 1935; vested rights which are protected

F ISHPONDS

Before: included in definition of agriculture, conversion of agricultural land to fishponds doesnot change character of landNow: restricted meaning; fishponds have a distinct category; cannot be alienated but may beleased from government.

DIRECTOR OF LANDS

• Quasi-judicial officer • Findings of fact conclusive on higher court with absence of fraud, mistake other thanerror of judgment; but not with regards to finding of law• Empowered to alienate and dispose lands

MODES OF ALIENATING PUBLIC LANDS:1. Homestead settlement2. Sale3. Confirmation of imperfect or incomplete title

a. Judicial legalizationb. Administrative legalization

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• Lease not included since lease does not transfer ownership; free-title grant: freedistribution of public lands to encourage people to cultivate; government furnishes theapplicant with tolls plus cash allowance to enable him to cultivate

CONFIRMATION OF IMPERFECT TITLE:

1. Last extension granted by Government was until December 31, 19872. Right made available to person qualified to acquire alienable and disposablepublic land thru open, continuous, exclusive, notorious (OCEN) possession under bonafide claim of ownership since June 12, 1945.

a. Prior to transfer of sovereignty from Spain to US, have applied for purchase but did not receive title, without default on their part provided theyhave occupied since their applicationb. In OCEN possession since June 12, 1945 or earlier c. Members of cultural minorities in OCEN who has claim of ownership for at least 30 years

MAXIMUM LAND THAT CAN BE APPLIED: 144 hectares• In case of foreigner, sufficient that he is already Filipino citizen at the time of hisapplication• Corporation who has less 60% Filipino ownership cannot apply confirmation of imperfect title; can only lease

PERSONS COMPETENT TO QUESTION LAND GRANT

• Persons who obtained title from State or through persons who obtained title from State

PATENTWHEN GOVERNMENT GRANT DEEMED ACQUIRED BY OPERATION OF LAW:

1. Deed of conveyance issued by government patent/grant2. Registered with ROD – mandatory: operative act to convey & transfer title3. Actual physical possession, open & continuous

• Land ceased to be part of public domain & now ownership vests to thegrantee• Any further grant by Government on same land is null & void• Upon registration, title is indefeasible

TITLE ISSUED PURSUANT TO REGISTRATION OF PATENT

1. Indefeasible – when registered, deemed incorporated with Torrens system; 1year after issuance of patent2. May not be opened one year after entry by LRA; otherwise, confusion,uncertainty & confusion on government system, of distribution of public lands may arise& this must be avoidedExcept: annullable on ground of fraud, may be reopened even after 1 year because

registration does not shield bad faith• Court in exercise of equity jurisdiction may direct reconveyance evenwithout ordering cancellation of title

AIM OF HOMESTEAD PATENT:• Benevolent intention of government to distribute disposable agricultural land todestitute citizens for their home and cultivation• As a matter of public policy, may be repurchased even if after 5 years provided notfor profit• Right of repurchase not allowed if sold within family & not for cultivating or living butfor speculation purpose

RESTRICTIONS:1. Cannot be alienated within 5 years after approval of application for patent2. Cannot be liable for satisfaction of debt within 5 years after approval of patentapplication3. Subject to repurchase of heirs within 5 years after alienation when allowedalready4. No corporation, partnership, association may acquire unless solely for commercial, industrial, educational, religious or charitable purpose or right of waysubject to consent of grantee & approval of Secretary of Natural resources

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EXCEPTIONS:1. Action for partition because it is not a conveyance2. Alienations or encumbrances made in favor of the government

ERRED HOMESTEADER NOT BARRED BY P ARI DELICTO

• Pari delicto rule does not apply in void contract• Violation of prohibition results in void contract• Action to recover does not prescribe

HOMESTEADER

• If he dies, succeeded by heirs in the application

LEGAL RESTRICTION IN DISPOSITION BY NON-CHRISTIANS (CULTURAL MINORITIES)• Conveyance is valid if able to read and can understand language where deed iswritten• Otherwise, not valid unless approved by Commission on National Integration• Safeguard is to protect them against fraud/deceit

CHAPTER 20: CADASTRAL REGISTRATION PROCEEDINGSPURPOSE:

• 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• In opinion of Phil president pursuant to requirement of public interest,title of land within a specified area needs to be settled and adjudicated• Order Director of Lands to make survey and plan• Director gives notice to persons claiming interest in lands & to gen publicof day of survey – published in OG and posted in conspicuous place on lands tobe surveyed• Geodetic engineers commences survey

• During survey, boundaries are marked by monuments

2. FILING OF PETITION• After survey and plot been made, Director represented by Sol Geninstitutes 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 by law

4. FILING OF ANSWER• Any person claiming interest in any part of lands subject to petition isrequired to file answer • Answer must give the ff details:

a. Age of claimantb. Cadastral number of lot claimedc. Name of barrio or municipality where lot is located

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d. Name of owners of adjoining lotse. If in possession & without grant – no of years in possessionf. If not in possession – state interest claimedg. If assessed of taxation – assessed valueh. Any encumbrances affecting said lots

5. HEARING OF CASE• 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. D ECISION• 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• Decree is now being directly prepared and issued on regulation forms of such certificate

NATURE OF TITLE COVERED BY 2 ACTS:• Title in good faith & for value• Errors in plan do not annul decree of registration• Cancellation & correction are permitted

LAND ALREADY REGISTERED

• Jurisdiction is limited only to correction of technical errors• Court cannot issue decree on land already decreed• Revision of decree allowed when substantial rights are not impaired; what isprohibited is registered land to be registered again in name of another • Jurisdiction subsists to all incidental matters

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CADASTRAL PROCEEDING COMPARED TO ORDINARY REGISTRATIONCADASTRAL ORDINARY

Party Initiating Government Private IndividualSubject Matter Private and Public Private LandsOwnership Government does not assert

ownershipInterested only in settlement of titles

Ownership is Asserted

Survey Government undertakes surveyand advances expenses

On account of owner

I In absence of successfulclaimant, property goes togovernment

Applicant has another chance toclaim is dismissal is withoutprejudice

WHEN CAN CADASTRAL PROCEEDINGS MAY BE OPENED

• 10 years up to Dec 31, 1968• Persons claiming title but were unable to file their claim even while in

possession are granted right to petition for reopening of proceedings provided suchwere not alienated, leased or disposed by government

CADASTRAL COURT DOES NOT AWARD DAMAGES, BUT MAY DIRECT SHERIFF TO DELIVER POSSESSION

• Provisions of land registration act applicable to cadastral proceedings

CHAPTER 21: SYSTEM OF REGISTRATION FOR UNREGISTERED LANDS• System of registration for unregistered land under the Torrens System (ACT3344)• Before: covers voluntary dealings, now includes involuntary dealings• Effect if prospective; binds 3rd persons after registration but yields to better rightsof 3rd person prior to registration (limited effect to 3rd parties)•

Reason: no strict investigation involved• Subsequent dealings – also valid if recorded• ROD keeps day book & a register; index system is also kept• Procedure:

1. Presentment of instrument dealing in unregistered land2. If found in order – registered3. If found defective – registration is refused writing his reason for refusal

Land Title and Deed

Documents

Transcript of Land Title and Deed