I. Background, Basic Concept And General Principles: Land title refers to that upon which ownership is based. It is the

REGISTRATION OF LAND TITLES and DEEDS S.Y. 2017-2018

ALO, ALO, AWING, DEL DELA A CERNA CERNA

I. BACKGROUND, BASIC CONCEPT AND GENERAL PRINCIPLES

3 systems of registration of land titles and deeds 1. Spanish Mortgage Law (abolished by PD 892)

Land Land title tit le refers to that upon which ownership is based. It is the evidence of the right of the owner or the extent of his interest, and by which means he can maintain control, and as a rule, assert right to exclusive possession and enjoyment of the property.

Deed refers to a written instrument executed in accordance with law, wherein a p erson grants or conveys to another certain land, tenements or hereditaments.

Types of Estates 1.

freehold estate, which indicates title of o wnership;  



2.

fee simple- is meant an absolute title; it is an absolute estate in p erpetuity. fee tail- one designed to pass title from the grantee to his heirs, the intent of the grantor being to keep the property in the grantee’s line of issue life estate- one held for the duration of the life life of the grantee.

less-than-freehold estate, which signifies some sort of a right short of title.  estate for years- in the nature of a lease, and therefore is short of title. The term may be up to ninety-nine years.  tenancy from period to period- in the nature of a lease which may run from month to month or from year to year, with the peculiarity of automatic renewal from time to time, unless expressly terminated by either party  tenancy at will- where a person is permitted to occupy the land of another without any stipulation as to period, but either party reserves the right to terminate the occupation at will or at any time.

Registration of title distinguished from recording of evidence of title. In title registration, the state provides a public record of the title itself upon which a prospective purchaser or someone else interested may rely. On the other hand, recording acts provide for the recording of deeds of conveyance and other instruments, without guaranteeing the title, leaving to the prospective purchasers or other persons interested to examine the instruments in the records and formulate their own conclusions as to their effect on the title.

2. 3.

Torrens system (PD No. 1529 ,June 11, 1978, PROPERTY REGISTRATION DECREE) system of recording for unreg istered lands

Registration, purpose and effect in general. Registration does not vest title. It is not a mode of acquiring ownership but is merely evidence of such title over a particular property.  afford some means of publicity  prevent fraudulent claims rd  constructive notice to 3 persons  notify and protect the interests of strangers to a given transaction Registration, original d istinguished istinguished from subsequent  original registration- when right of ownership or title to land is for the first time made of public record under any of the existing systems of registration. A proceeding brought before the land registration court to determine title of ownership to the land on the basis of an application filed for registration or of an answer filed by a claimant in a cadastral registration case.  subsequent registration- any further transaction affecting such originally registered land. A proceeding where incidental matters after original registration may be brought before the land registration court by way of motion or petition fi led by the registered owner or a party in interest.  

Registration- a proc proce eeding ding in rem rem , which shall be binding upon all persons known o r unknown.

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Only real property or real rights may be object of registration under the existing land registration laws. laws.

Modes of acquiring land titles 1. by public grant  No public land can be acquired by private persons without any grant, express or implied from government  Tax declarations are not conclusive proof of ownership in land registration cases  Forest lands or forest reserves are not capable of private appropriation and possession 2. by adverse possession  voluntary (10 yrs) good faith  extraordinary (30 yrs)

only as stron str ongg as we are united, as weak as we are divide divi ded.” d.” “W e are only -Dumbledore, Harry Potter and the goblet of fire-



TRUST –IMPLIED OR EXPRESSED (a) It is a relationship (b) relationship of fiduciary in character (c) relationship with respect to property, not one involving merely personal duties (d) It involves the existence of equitable duties imposed upon the holder of the title to the property to deal with it for the benefit of another (e) It arises as a result o f a manifestation manifestation of int ention to create the relationship. Implied trust is defined a s the right, enforceable solely in equity, to the beneficial enjoyment of property, the legal title to which is vested in another and is furth er subdivided into resulting and constructive trust. 3.

by accretion 1. The accumulation of soil or sediment must be gradual and imperceptible; imperceptible; 2. It is the result of the actions of the waters of the river; 3. 3. The land where the accretion takes place is adjacent to the bank of the river.

Acc Accretion retion is the process whereby the soil is deposited, while alluvium is the soil deposited on the esta te fronting the river bank. 4. by reclamation filling of submerged submerged land by deliberate act and reclaiming title thereto. 5. by private grant or voluntary transfer usual means by which title to land is transferred by the owner himself or h is duly authorized representative. Here the consent or cooperation of the grantor is an essential element 6. by involuntary alienation does not require the consent or cooperation of the o wner of the land, and, in fact, is usually carried out against his will. 7. by descent or devise

8.

hereditary succession succession to the estate of a deceased owner by emancipation patent tenant-farmers tenant-farmers etc

II TORRENS SYST SYSTEM: EM: ORIGIN, NATURE, AND CHARACTERISTICS CHARACTERISTICS ADVANTAGES: 1. It abolishes endless fees. 2. It eliminates rep eated examinations of titles. 3. It reduces records enormously. 4. It instantly reveals o wnership.

5. It protects against encumbrances not noted on the Torrens certificate. 6. It makes fraud a lmost impossible. 7. It assures. 8. It keeps up the system without adding to the burden of taxation. Because the beneficiaries of the system pay the fees. 9. It eliminates tax t itles. 10. It gives practically eternal title as the State insures perpetually. 11. It furnishes state title insurance instead of private title insurance. 12. It makes possible the transfer of titles or of loans with in the compass of hours instead of a matter of days and weeks.

BENEFITS: 1. It has substituted security for insecurity. 2. It has reduced the cost of conveyance from pounds to shillings, and the time occupied from months to days. 3. It has exchanged brevity and clearness for obscurity and verbiage. 4. It has so simplifi ed ordinary dealings that he who has mastered the “three R’s’’ can transact his o wn conveyancing. 5. It affords protection against f raud. 6. It has restored to their just value many e states, held under good-holding titles but depreciated in consequence consequence of some blur or technical defect, and ha s barred the re-occurrence of any similar faults. 7. It has largely diminished the number of chancery suits, by removing those conditions that afford ground for them. STABILITY OF TORRENS SYSTEM  guarantees of the government in the form of title insurance backed up by a p ermanent ermanent assurance fund 

PURPOSE OF TORRENS TITLE  to quiet title to land; to pu t a stop forever to any question of the legality of the registration, in the certificate, or which may arise subsequent thereto.  relieves the land of unknown liens or claims, just or unjust, against it.

Failure to Register Deed conveyance shall not be valid again st any person unless registered, except (1) the grantor, (2) his heirs and d evisees, and (3) third persons having actual notice or knowledge thereof.




PROCEDURE IN ORDINARY LAND REGISTRATION CASE: (S-F-S-T-P-S-F-H-P-I-E-S-T) 1.

Survey of land by the Bureau of Lands o r a duly licensed private surveyor;

2. 3.

Filing of application for registration by the applicant; Setting of the date for the initial hearing of the application by the Court; Transmittal Transmittal of the application and the date of initial hearing together with all the documents or other evidences attached thereto by the Clerk of Court to the Land Registration Commission (now National Land Titles and Deeds Registration Administration); Publication of a notice of the fi ling o f the application and date and place of hearing once in the Official Gazette and once in a newspaper of general circulation in the Philippines; Service of notice upon contiguous owners, occupants and those known to have interest in the p roperty by the Sheriff; Filing of answer or opposition to the application by any person whether named in the notice or not; Hearing of the case by the Court; Promulgation Promulgation of judgment by the Court; Issuance of the decree by the Court declaring the decision final and instructing the National Land Titles and Deeds Registration Administrator to issue a decree of confirmation and registration; Entry of the decree of registration in the National Land Titles and Deeds Registration Administration; Sending of copy of the decree of registration to the corresponding Register of Deeds (Registrar of Land T itles and Deeds); and Transcription of the decree of registration in the registration book and the issuance of the owner’s duplicate original certificate certificate of title of the applicant by the Registrar of Land Titles and Deeds, upon payment of the prescribed fees.

4.

5.

6.

7. 8. 9. 10.

11. 12.

13.

(3) Those who have acquired ownership of private lands or a ccretion abandoned river beds by right or accession or accretion under the existing laws. (4) Those who have acquired ownership of land in any other manner provided for by law.

common , all the co-owners Where the land is owned in comm co-owners shall fi application jointly j ointly . le the application pacto to de retro retro , the vendor Where the land has been sold under pac a retro retr o may may file f ile an application 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 cont inue the proceedings. A trustee on behalf of his his principal may apply for original registration of any land held in trust by him, unless prohibited by the instrument creating the trust.

Form and contents of application  shall be in writing  signed by the applicant or the person duly authorized in his behalf  and sworn before any o fficer authorized to administer oath for the province or city where the app lication lication was actually signed.  If there is more than one applicant, the application shall be signed and sworn to by and in behalf of each. The application shall contain a description of the land and shall state the citizenship and civil status of the applicant, whether single or married, and, if married, the name of the wife or husband, and, if the marriage has been legally dissolved, when and how the marriage relation relation terminated. terminated. It shall also state the full names and addresses of all occupants of the land and those of the adjoining owners, if known, and, if not known, it shall state the extent of the search to find them. It shall further state whether the property is conjugal, paraphernal or exclusively owned by the app licant. licant.

III APPLICATION IN ORDINARY REGISTRATION PROCEEDINGS

May a non-resident file application?

Who may apply? O-P-A-A (1) Those who by themselves or through their predecessors in-interest, have been in open, continuous, exclusive and notorious po ssession ssession and occupation of alienable and disposable lands of the public domain under a bona fi de claim of ownership since Jun e 12, 1945, or earlier. (2) Those who have acquired ownership of private lands by prescription under the provisions of existing laws.

YES provided he be represented by an agent residing in the Philippines, presenting with the application the appointment or power of attorney, showing the full name and postal address of the agent, and agreeing that the service of any legal process upon such agent shall have the same legal effect as if served upon the applicant in the Philippines. If the agent dies or becomes insane or leaves the country in the course of the proceeding, the applicant is bound to appoint a new agent or




representative, and, in case of failure to do so, the application may be dismissed.

subject to the same requirements of publication and notice as in an original o riginal application”

Where to file application?  filed with the clerk of the Regional Trial Court of the province or city where the land is situated. The Clerk of Court may not accept any application unless it is shown thereon that the applicant has furnished the Director of Lands with a copy thereof, including all annexes (and payment too)

An amendment due to change of name of the applicant does not require publication

Fees payable upon filing application  Based on Assessed Value 

If not assessed for taxation, Market Value

Proceeding for registration registration of o f land, one in rem. “A land registration proceeding is ‘in rem’ and, therefore, the decree of registration is binding and conclusive against all persons including the government and its branches.” Action to recover title to land, one in personam What to accompany application: (a) tracing-cloth plan duly approved by the Director of Lands, together with two blueprint or photographic copies thereof; (b) three copies of the corresponding technical descriptions; (c) three copies of the surveyor’s certificate ; (d) all original muniments of title in the possession of the applicant which prove his rights, to the title he prays for or to the land he claims; and (e) certificate in quadruplicate of the city or provincial treasurer of the assessed value of the land, at its last assessment for taxation, or, in the absence thereof, that of the next preceding year. However, in case the land has not been assessed, the application may be accompanied with an affidavit in quadruplicate of the fair market value of the land, signed by three disinterested persons. Amendments Amendments of application. Section 19 of the Decree specifically specifically states: “Amendments to the applicant including joinder, substitution, or discontinuance as to the parties may b e allowed by the court at any stage of the proceedings upon just and equitable terms.”

substantial change in the “Amendments which shall consist in a substantial boundaries or an increase in area of the land applied for or which involve the inclusion of an additional land shall be

 

Plans to be approved by Director of Lands and submitted in evidence. Signature of Directors of Lands on survey plan is required otherwise the title is void.

Muniments of title- instruments or written evidences which the applicant holds or possesses to enable him to substantiate and prove title to his estate. IV PUBLICATION, ANSWER, AND DEFAULT Publication of notice: upon receipt of the o rder of the court setting the date for initial hearing, shall cause a notice of the hearing to be pub lished in the Official Gazette and once in a newspaper of general circulation in the Philippines. The notice is to be addressed to all persons appearing to have an interest in the land involved, including adjoining owners so far as known, and in general to all whom it may concern. The notice requires all persons concerned to appear in court on the date and time indicated to show cause why the application for registration should not be granted. The publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. The publication in the Official Gazette binds the whole world, inclusive of those who may be adversely affected and those who factually have been innocent of such publication. This is

the only only way to gi ve mea meaning ning to the finality and and indefeasibili indefeasibility ty of the Torrens title to be issued, as against the argument that suc such rule rule coul ould resul resultt to actu actual al injustic injustice e Laches- the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it Land Registration Proceeding in Rem- validated essentially through publication Purpose and effects of publication.  to confer jurisdiction over the land applied for upon the court, and  to charge the whole world with knowledge of the application of the land involved, and invite them to take 



ALO, AWING, DELA CERNA

part in the case and assert and prove their rights over the property subject thereof.

Form of notice  posted fourteen days in advance of the date set for the hearing Mailing and proof of publication and notice  within seven days after the publication of the notice in the Official Gazette, the Administrator of Land Registration Authority shall cause a copy of the notice to be mailed to every person named therein whose address is known Notice essential to due process  invite all persons concerned who may have any rights or interests in the property applied for to come to the court and show cause why the application should not be granted. Personal notice necessary but not indispensable 

“To all whom it may concern,’’ all the world are made parties defendant.



To require personal notice as a prerequisite to the validity of registration would absolutely prohibit the foreclosure of unknown claims, for the reason that personal notice could never be given to “unknown claimants.’’

Who may oppose or answer?  Any person claiming an interest, whether named in the notice or not, may appear and file an opposition or answer on or before the return day, or within such further time as may be allowed by the court Requisites of an opposition: (1) It shall set forth “all the obje ctions to the application’’ and (2) It shall state the “interest claimed by the party fi ling the same. Is affirmative relief obtainable in answer? Under the Public Land Act, permitting any number of persons (Section 50) to seek judicial confi rmation of imperfect or incomplete title to land by presenting their respective applications, praying that the validity of the alleged title or claim be inquired into and determined accordingly. So also in cadastral proceedings, where an answer or claim may be fi led with the same effect as an application for registration

Basic ground for opposition:  an application for registration may be objected to, if the opposition is based on the right of dominion or some other real right opposed to the adjudication or recognition of the ownership of the petitioner, whether it be limited or absolute  It is only the legal personal right of the respondent, prejudiced by the judgment of the lower court, that can be considered as a valid ground. Effect of failure to answer. If no person appears and answers within the time allowed, the court may at once upon motion of the applicant, no reason to the contrary appearing, order a general default to be recorded and the application to be taken for confessed. General default not a guarantee to success of application He must show, even though there is no opposition, to the satisfaction of the court, that he owns the legal estate in fee simple. Order of default may be set aside Issuance of order of general default presumed. General default distinguished from special default.  a general default may be ordered by the court if no person appears and answers within the time prescribed.  Where a party appears at the initial hearing without having filed an answer or oppo sition and asks the court for time within which to file the same, and this has accordingly been granted, in case of failure of such  party to fi le his answer or opposition within the period allowed, he may be declared specially in default. Order of default, when appealable.  when the party in default files a motion to set aside the order of default on the ground or grounds stated in Rule 38 of the Rules of Court, in which event he is entitled to notice of all proceedings. Withdrawal of application in a land registration case does not terminate proceedings if there is an a dverse claim

“We are only as strong as we are united, as weak as we are divided.” -Dumbledore, Harry Potter and the goblet of fire-



V HEARING AND EVIDENCE

Extent in exercise of jurisdiction

By express provision of Rule 143 of the Rules of Court , the rules contained therein are not applicable to land registration and cadastral cases, except by analogy or in a suppletory character and when practicable and convenient

The Rules of Court may be applied in cadastral cases when two conditions are present: (1) analogy or need to supplement the cadastral law; and (2) (2) practicability and convenience.

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The court cannot permit a faulty title to be registered simply because it happens to be better than a still more faulty one presented by the respondent

Proceedings for ordinary registration under Land Registration Act and for judicial confirmation of imperfect title under Public Land Act, distinguished. LRA: 

Assignment to referee  the court may either hear the parties and their evidence or refer the case or any part thereof to a referee, also known as commissioner, the latter clothed with power to hear the parties and their evidence and make report thereon to the court. Motion to dismiss  may be availed of by the parties in land registration proceedings under Rule 132 thereof Dismissal “without prejudice.’’  dismissing the application if the court finds that the applicant does not have title proper for registration  it simply means that it is not a conclusive judgment and the principle of res judicata does not apply Requisite for reinstatement of case previously dismissed “without prejudice.”  cannot be reinstated without new notices and new citations to all of the persons interested Courts with jurisdiction to hear land registration cases  MTC/ MCTC (delegated jurisdiction): contested lots the value of which does n ot exceed P20,000.00. (BP 129)  RTC (limited jurisdiction): above 20k

there exists already a title which is to be confirmed by the court  the court may dismiss the application with or without prejudice to the right to fi le a new application for the same land  ordinary risk that an applicant runs is to have his application denied without losing his land PLA:  presumption always is that the land applied for belongs to the State,  while the court has jurisdiction or power to adjudicate the land in favor of any of the conflicting claimants, it cannot however dismiss the application without prejudice or permit a new application to be fi led for the same land  if the applicant fails, even if there was no oppositor , he runs the risk of losing the land applied for as it will be declared land of the public d omain and the decision to that effect becomes res judicata.

Evidence necessary to prove title.- presentation documentary evidence which may be in the form of a 

Land titles; as between the parties to a donation of an immovable property, all that is required is for said donation to be contained in a public document.

chain of titles:  royal grant (titulo real),  special grant (concession especial),  adjustment title (composicion con el estado)  and title by purchase (titulo de compra) a possessory information is not suffi cient to confer title susceptible of registration. In addition to it, it is required that the applicant be the owner of the property or that he has been in actual possession thereof for the period required by law.

Land registration under P.D. 1529. Land registration courts can now hear and decide even controversial and contentious cases.  That court now has the authority to act not only on applications for original registration, but also on all petitions fi led after the original registration of title

of



Tax deed- not conclusive evidence of ownership, yet when they are coupled with open, adverse, and continuous possession in the concept of owner, such documents constitute evidence of great weight in support of the claim




of ownership. They constitute at least proof that the holder had a claim of title over the property

Determination of registrable title 

Nature of the requirement to submit original tracing cloth  MANDATORY REQUIREMENT The reason for this rule is to establish the true identity of the land to ensure that it does not overlap a parcel of land or a portion thereof already covered by a previous land registration, and to forestall the possibility that it will be overlapped by a subsequent registration of any adjoining land. Title to public lands established through continuous occupation  An open, continuous, adverse, and public possession of land of the public domain from time immemorial by private individual personally and through his predecessors confers an effective title on said possessor, whereby the land ceases to be public, to become private property. Article 531 possession may be acquired by any o f the following ways: 1. by the material occupation of the thing; 2. by the exercise of a right; 3. by the fact that it is subject to the action of our will; 4. by the proper acts and legal formalities established for acquiring such right. Title established through composition with State 

Spanish title (titulo de composicion) can no longer be used from and after August 16, 1976, as evidence of ownership in land registration proceedings under th e Torrens system

Collection of rents as evidence of ownership. 

may be considered an attribute of an owner, it is not safe to assume that all who collect rents are owners.

Prescription as b asis of ownership. 

possession must be that of owner, and it must be public, peaceful, and uninterrupted

RTC deemed to have all the necessary power to exercise such jurisdiction and make it effective

Requisites of registrable title. 1. the land is alienable public land; and 2. his open, continuous, exclusive and notorious possession and occupation of the same are either since time immemorial or for the period prescribed in the Public Land Act. Land already covered by patent cannot be registered. Genuineness of title and identity of land  An applicant for registration of land, if he relies on a document evidencing his title thereto, must prove not only the genuineness of his title thereto, but also the identity of the land therein mentioned. VI JUDGMENT AND DECREE Decree and judgment compared.  Decree- the court decision or judgment of dismissal  while a judgment may always be considered a decree, not all decrees are ju dgments When judgment becomes final  upon the expiration of thirty days from the date on which the party who may appeal has been served with a notice of the judgment Form of judgment  judgment or decision constitutes the opinion of the court after taking into consideration the evidence submitted by the parties in the controversy.  Judgment may be rendered confirming the title of the applicant… Issuance of decree  As provided by law, if the court finds after hearing that the applicant or adverse claimant has title as stated in his application or adverse claim and proper for registration, a decree of confirmation and registration shall be entered.

Public instruments as evidence of ownership. 

Ex. Deed of Sale

Doctrine of part performance, an exception. Partition among heirs not covered by statute of frauds.

Statutory liens affecting title 1. First, Liens, claims or rights arising or existing under the laws and Constitution of the Philippines which are not by law required to appear of record in the Registry of Deeds in order to be valid against subsequent purchasers or encumbrancers of record.




2.

Second. Unpaid real estates taxes levied and assessed within two years immediately preceding the acquisition of any right over the land by an innocent purchaser for value, without prejudice to the right of

estate is subject, and may contain any other matter properly to be determined in pursuance of Presidential Decree No. 1529. The decree shall be stated in a convenient form for transcription upon the certificate of title

3. 4. 5.

6.

the government to collect taxes payable before that period from the delinquent ta xpayer alone. Third. Any public highway or private way established or recognized by law, or any government irrigation canal or lateral thereof, if the certificate of title does not state that the boundaries of such highway or irrigation canal or lateral thereof have been determined. Fourth. Any disposition of the property or limitation on the use thereof by virtue of, or pursuant to, Presidential Decree No. 27 or any other law or regulations on agrarian reform such as Republic Act No. 6657 known as the Comprehensive Agrarian Reform Program.

Encumbrance created by administrative directive, null and void. Undisclosed encumbrances strictly construed. Adverse possession not an encumbrance.  it was held that an adverse possession of property by another is not an encumbrance in law, and does not contradict the condition that the property is free from encumbrance; nor is it a lien, which connotes security for a claim. Form of decree  Every decree of registration shall bear the day of the year, hour, and minute of its entry, and shall be signed by the Administrator of the Land Registration Authority in his ex offi cio capacity as Clerk of Court in land registration matters. The decree shall state whether the owner is married or unmarried, and if married, the name of the husband or wife, provided that if the land ad judicated is conjugal property, it shall be issued in the names of both spouses. If the owner is under disability, it shall state the nature of the disability, and if a minor, his age. It shall contain a description of the land as finally determined by the court, and shall set forth the estate of the owner, and also, in such manner as to show their relative priority, all particular estates, mortgages, easements, liens, attachments and other encumbrances, including rights of tenant-farmer, if any, to which the land or owner’s

(SAMPLE LANG CHERET)

Decree No. 145230 REPUBLIC OF THE PHILIPPINES Court of First Instance Quezon Province Case No. 1232, L. F. C. Record No. 22862, having been duly and regularly heard in accordance with the provisions of law, it is hereby decreed that Alejandra de los Reyes, a widow, Filipino, and resident of Sariaya, Quezon Province is the owner in fee simple of certain land situated in said Province more particularly bounded and described as fo llows: (Technical description of the land) Therefore, it is ordered by the Court that said land be registered in accordance with the provisions of the Property Registration Decree in the name of said Alejandra de los Reyes, subject, however, to such of the encumbrances mentioned in section 44 of said law as may be subsisting, and to: . . . . . . . WITNESS the Honorable . . . . . . . . Judge of said Court, the 30th day of June, A .D., Nineteen hundred and seventy-eight. Issued at Quezon City, Philippines, the 1st day of August, A.D., 1978, at 8:30 a.m. Attest: ________________________________ Commissioner of Land Registration



A decree of registration confirms the ownership of the applicant over the land subject of the application

Decree of land includes buildings and improvements thereon Ownership of building alone cannot be registered separately Decree proper in land registration  two classes 1. decrees dismissing the application and referred to in Section 37 2. decrees of confi rmation and registration dealt with in the next succeeding four sections of the Act ** TORRENS TITLE MUST BE ISSUED AFTER JUDGMENT HAS BECOME FINAL, OTHERWISE VOID***




When decree of registration becomes final.  Upon the expiration of the said term of one y ear (from the date of issuance and entry), every decree or certificate of title issued accordingly shall be incontrovertible. Conclusiveness of decree of registration. 

A land registration proceeding is “in rem,’’ and, therefore, the decree of registration is binding upon and conclusive against all persons because all interested parties are considered as notified by the publication required by law.



A decree that has become final shall be deemed conclusive not only on the questions actually contested and determined but also upon all matters that might be litigated or decided in the land registration proceedings. Reason for finality of decree  When once a decree of registration is made under the Torrens system, and the time has passed within which that decree may be questioned, the title is perfect and cannot later on be qu estioned

Amendment of decree to include new owner  Allowed only when the amendment is for the purpose of including new owners in the certificate Change of decree from owner to purchaser Decree to non-claimants; effect of subsequent dealings.  The Court has no jurisdiction to decree a lot to persons who have put no claim to it and have never asserted any right of ownership thereon Writ of possession; persons entitled thereto  implies the delivery of possession of the land to the successful litigant therein  after registration has once been awarded, the granting of a writ of possession becomes a matter of expediency  available in the ff cases: 1. in land registration proceeding, which is a proceeding in rem 2. in extrajudicial foreclosure of mortgage 3. in judicial foreclosure of mortgage, which is a proceeding quasi in rem, provided that the mortgagor is in possession of the mortgaged property and no third person had intervened; and 4. in execution sales

Against whom may writ of possession lie  it cannot be used either against the party in whose favor the land was decreed to be registered or against his representatives or his successors in interest. Collateral attack not bar to writ o f possession  it cannot be collaterally attacked by persons claiming title to or interest in the land prior to the registration proceeding. When writ of possession may not issue  Where the parties against whom a writ of possession is sought have been in possession of the land for at least ten years, and they en tered into possession apparently after the issuance of the final decree, and none of them had been an oppositor in the registration proceeding, the writ of possession will not issue. Ordinary means to recover possession. 1. action for forcible entry or unlawful detainer 2. accion publiciana 3. accion reivindicatoria, Judgment when considered res judicata  A final judgment in an ordinary civil case determining the ownership of land is res judicata in a registration proceeding where the parties and the property are the same as in the former case. Judgment when not considered res judicata.  A judgment dismissing an application for the registration of land does not operate as a conclusive adjudication (res judicata) between the applicant and the opponent who has successfully resisted the application. Remedies available to aggrieved party in registration proceedings. (1) new trial Grounds: (a) Fraud, accident, mistake or excusable n egligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which is presented would probably alter the result. (c) Evidence was insufficient to justify the decision, or the decision is against the la w.




(2) appeal;

VII CERTIFICATE OF TITLE

(3) review of decree of registration— ONLY GROUND FOR REVIEW: ACTUAL FRAUD Conditions: (1) That the plaintiff is the owner of the land ordered registered in the name of the defendant, or that the plaintiff’s lien or interest in said property does not appear in the decree or title issued in the defendant’s name; (2) that the registration was procured through actual fraud, or that the omission of the lien or interest was fraudulent; (3) that the property has not been transferred to an innocent purchaser for value; and (4) that the action is fi led within one year from the issuance and entry of the decree o f registration. The fraud contemplated here must be extrinsic. And it is extrinsic when it is employed to deprive a party of his day in court, thereby preventing him from asserting his right to the property registered in the name of the applicant. (4) relief from judgment; fraud, accident, mistake, or excusable n egligence Form and contents of petition; period of filing  The petition must be verified, fi led within sixty days after the petitioner learns of the judgment (5) reconveyance; is a remedy of a landowner whose property has been wrongfully or erroneously registered in the name of another, but which remedy can not be availed if the property has passed to an innocent purchaser for value.  Prescriptive Period : 10 yrs from date of issuance of title (6) recovery of damages.  Remedy of an owner who has fraudulently deprived of his land which was subsequently sold to an innocent purchaser for value, is to fi le an action for damages against the person who perpetrated the fraud within four (4) years from the date of discovery of the deception Requisites for claiming dam ages: 1. that the person is in reality wron gfully deprived of his land by the registration in the name of another of the land by actual or constructive fraud; 2.that there was no negligence on his part; 3. that he is barred or in any way precluded from bringing an action for the recovery of the land or interest therein; and, 4. that the a ction for compensation has not prescribed.

A Torrens title is the certificate of ownership issued under the Torrens system of registration by the government, thru the Register of Deeds naming and declaring the owner in fee simple of the real property described therein, free from all liens and encumbrances except such as may be expressly noted thereon or otherwise reserved by law. A certificate of title is the transcript of the decree of registration made by the Register of Deeds. Once issued, the certificate is the evidence of the title which the owner has. The official certificate will always show the status of the title and the person in whom it is vested. Where the certificate of title is in the name of the vendor when the land is sold, the vendee for value has the right to rely on what appears on the certificate of title.

Indefeasibility of a free patent title - an original certificate of title issued on the strength of a homestead patent partakes of the nature of a certificate of title issued in a judicial proceeding, as long as the land disposed of is really part of the disposable land of the public domain and becomes indefeasible and incontrovertible upon the expiration of one year from the date of promulgation of the order of th e Director of Lands for the issuance of patent. Process in the entry of initial certificate of title -15 days from entry of judgment, issue an order directing the administrator of land to issue corresponding decree of registration and certificate of title. Certificate as evidence of title -unless bad faith can be established on the part of the person appearing as owner on the certificate of title, there is no other owner than that in whose favor it has been issued. -A Torrens certificate is the b est evidence of ownership of registered land - A mortgagee has the right to rely on what appears in the certificate of title, and in the absence of anything to excite suspicion is under no obligation to look beyond the certificate and investigate the title of the mortgagor appearing on the face of the certificate. Who has right to po ssess owner’s duplicate certificate. -Section 41 of Act No. 496, as amended by P.D. No. 1529, provides that the owner’s duplica te certificate shall be




issued by the Register of Deeds in the name of the person in whose favor the land was decreed, and further disposes that said duplicate shall be delivered to the registered owner. Original and transfer certificates of title ORIGINAL- issued for the first time TRANSFER- subsequent titles

did not investigate properly, is held to be a builder in bad faith. He is deemed to have a presumptive knowledge of the pertinent Torrens title covering the particular land, the area involved, and the extent of its boundaries.  

Land registered in the name of two different persons The general rule is that in the case of two certificates of title, purporting to include the same land, the earlier in date prevails, whether the land comprised in the latter certificate be wholly, or in part, comprised in the earlier certificate. Protection of innocent third person Every person dealing with registered land may safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go behind the certificate to determine the c ondition of the property. - The remedy of the defrauded party is to bring an action for damages against those who caused the fraud or were instrumental in depriving him of the p roperty. Good faith, how determined -implies freedom from knowledge and circumstances which ought to put a person on inquiry - It has been held that a purchaser in good faith is one who buys the property of another without notice that some other person has a right to or interest on such property and pays a full and fair price for the same at the time of such purchase or before he has notice of the claim or interest of some other person in the property. It is enough that he examines the latest certificate of title which was issued in the name of the immediate transferor. Registration without effect unless made in good faith - Thus, when one purchases property with full knowledge that his vendor has previously sold the property to another person, he acquires only the right, if any, which the vendor then had. - The Torrens system of land registration, though indefeasible, should not be used as a means to perpetuate fraud against the rightful owner of real property. -Mere registration of sale is not good enough, good faith must concur with registration. Otherwise registration becomes an exercise in futility. Holder in bad faith, not protected - one who builds a house on another’s registered land believing this to be his own registered lot, because he

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Co- owners are entitled to separate certificates Sale by co-owners –allowed - The sale or other disposition can affect only his undivided share, and the transferee gets only what corresponds to his grantor in the property owned in common. Torrens title binds the land to system forever Torrens title not subject to prescription - A title once registered cannot be defeated, even by adverse, open, and notorious possession Right to recover possession equally imprescriptible Certificate in name of wife; property covered not necessarily paraphernal Sale of wife of her portion in conjugal property void What title covers -covers the land described therein, together with all the buildings and improvements existing thereon, unless an express reservation shall have been annotated on the certificate. It does not include such public thoroughfares as were already in existence at the time title was acquired.

VIII VOLUNTARY DEALINGS -It is the act of registration that operates to convey registered land or affect title thereto.(Section 51, PD No.1529) Section 52, PD No. 1529  

-By registration, it creates constructive notice to the whole world. “It has been held that where there was nothing in the certificate of tile to indicate any cloud or vice in the ownership- of the property or any encumbrance, the purchase is not required to explore farther than what the Torrens title upon its face indicates in quest of any hidden defect or inchoate right that may subsequently defeat his right thereto.

Doctrine in Lanci vs. Yanco 

equity was preferred to clear provision of law.




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instruments executed by the owners purporting to transfer or encumber registered land shall op erate only as evidence of authority to the Register of Deeds to effect registration, and that it is the act of registration that shall be the operative act to convey and effect the land.

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Section 54  

Specifies the manner o f accomplishing registration. no new certificate of title shall be entered or issued upon any transfer of registered land which does not dives the land in fee simple from the owners or from someone of the registered owners.

Roa v De la Rama

Sufficiency of registration of voluntary dealing in land

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where the owner’s duplicate certificate of title has been presented with the document sought to be registered and the registration fees paid, although the purchaser has not actually obtained a new certificate of title issued in his name, still registration may be deemed accomplished or sufficient. In voluntary registration, such as a sale, mortgage, lease and the like, if the owner’s duplicate certificate be not surrendered and presented or if no payment of registration fees be made within fifteen days, entry in the day book of the deed of sale does not operate to convey and affect the lan so ld. an innocent purchaser for value of registered land becomes the registered owner and in the contemplation of law the holder of a certificate thereof the moment he presents and files a duly notarized and lawful deed of sale and the same is entered on the day book and at the same time he surrenders or presents the owner’s duplicate registration fees, because what remains to be done lies not within the power to perform.

Presentation of title with instruments required; also when not required 

presumed that he is interested in registering the instrument, and would willingly surrender, present or produce his duplicate certificate of title to the office of the Register of Deeds in order to accomplish such registration.

Effect of failure to register

entry in the day book of the Register of deed is not a sufficient accomplishment of registration until and unless a memorandum of such document is made on the certificate of title.

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assignment, mortgage, or lease in the entry book of the registry, but also cause a memorandum thereof made by the Register of Deeds on the owner’s duplicate certificate and its original. The law requires the production of the owner’s duplicate certificate by the registrant for a voluntary instrument to be registered, because as a voluntary instrument is a willful act of the registered owner of the land to be affected by the registration, it is to b e

For the registration of voluntary instruments, the owner’s title should be presented because it is necessary not only to record the deed, instrument of

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The purchaser does not necessarily lose his rights by his mere failure to register until after a third pa rty who has acquired the land in good faith and for value shall have registered the subsequent deed. However, the purchaser who knows or ought to know that the land he is acquiring has previously been sold, but which sale has not been registered, is not a purchaser in good faith and for that reason his acquisition cannot defeat the right of the first purchaser on the mere ground that the second deed has been registered. It is a w ell settled rule that registration is not n ecessary to make a contract of sale valid and effective as between the parties for actual notice is equivalent to registration. The purpose of registration is to give notice to third persons.

Elevation of doubts and controversies to Commissioner of Land Registration When the Register of deed is in doubt with regard to the proper step to be taken to be made in pursuance of any deed, the question shall be submitted to the Commissioner of Land Registration either upon the certification of the Register of Deeds or upon the suggestion in writhing by the party in interest.

Appeal from decision of Land Registration Commission Under the provision of Section 4 of Republic Act 1151, when a party in interest disagrees with the ruling or resolution of the Commissioner of Land Registration and the issue involves a question of law, appeal could be taken therefrom directly to the Supreme Court.




Register of Deeds not authorized to determine whether or not fraud was committed in the deed sought to be registered The duties enjoined upon the Register of Deeds by Section 57 of the Land Registration Act are clearly ministerial and mandatory in character, not only as indicated by the auxiliary “shall” but by the nature of such functions required to be performed by him.

Invalidity of contract not valid objection to reg istration No valid objection can be interposed to the registration of a document by the Register of Deeds who finds nothing defective or irregular on its face upon an examination thereof. If the purpose of registration is merely to give notice, then questions regarding the effect or invalidity of instruments are expected to be decided after, not b efore, registration.

Formal details required of voluntary instruments In passing upon the registrability of documents sought to be registered, the Register of Deeds is charged with the power to determine under his responsibility whether the formal requisites of the law have been complied with. The requirements for deeds and other voluntary instruments of conveyance to be registrable thereunder are specified in the law, thus: (1) The presentation of the owner’s duplicate certificate whenever any duly executed voluntary instrument is fi led for registration; (2) the payment of the prescribed registration fees and the requisite documentary stamps; (3) the evidence of full payment of real estate tax as may be due; and (4) the inclusion of one extra copy of any document of transfer or alienation of real property, to be furnished the city or provincial assessor. Upon satisfaction of such minimum requirements set by the existing statutes, it becomes the duty of the Register of Deeds to give course to registration. No entity, except the legislature itself, may add to or detract from or otherwise alter or amend the requirements it has so enumerated — and then only by the corresponding amendment of the existing statutes or the enactment of new ones.

Sale of lands to aliens The Supreme Court in the celebrated held that aliens are not allowed to acquire ownership of urban or residential lands in the Philippines, and as a consequence, all acquisitions made in contravention of the prohibition since the fundamental law became effective are null and void p er se and ab initio. The ruling is based mainly on the ground that private urban or residential lands fall under the category of agricultural land and to them the follow ing constitutional provision squarely applies: “Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to ind ividuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Alien acquisition subject to public policy As the Constitution is silent as to the effects or consequences of a sale by a Filipino citizen to an alien, and as both the citizen and the alien have violated the law, none of them should have a recourse against the other, and it should only be the State that should be allowed to intervene and determine what is to be done with the property subject of the v iolation.

Simultaneous registration of sales coursed thru alien buyer allowed The evil sought to be avoided by the constitutional inhibition, as recently construed by the Supreme Court, is to prevent any portion of our lands, including residential lots, from falling into the hands of aliens. Such an eventuality is not present here, because the registration, it has already been said, is sought not to vest title in an alien but simply to enable an entity qualified to hold the land to perfect its title.”

Acquisition of land with money furnished by alien, when valid In an actual case decided by the Court of Appeals, it was held that acquisition by a citizen of the Philippines of private agricultural lands with money given or donated to him by an alien, provided the transaction was done in good faith, is valid.

Registration of alien corporation not a prerequisite to owning real property . Where an alien corporation may validly acquire lands in the Philippines, it is not necessary as a prerequisite that it be registered and authorized to transact business here. “no private corporation or association may hold alienable lands of the public domain except by lease not to exceed one thousand hectares in area.” There is a similar provision in the 1987 Philippine Constitution, Article XII, Section 3, which provides that “private corporations or associations may not ho ld such




alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area.” It is clear that if the land is still part of the alienable and disposable lands of the public domain at the time a corporation or association files an application for confi rmation of imperfect or incomplete title thereto or at the time such applicant acquired the land from a Filipino citizen, then the aforequoted constitutional bar applies.

otherwise is an invalid document. However, where the certificate of title was already transferred from the name of the true owner to the forger, and while it remained that way the land was subsequently sold to an innocent purchaser, the vendee had the right to rely upon what appeared in the certificate and, in the absence of anything to excite suspicion, was under no obligation to look beyond the certificate and investigate the title of the vendor appearing on the face of said certificate. This is a concrete instance to illustrate how a forged deed may be the root of a va lid title in a bona fi d e purchaser.

Alien religious corporation disqualified The mirror doctrine The provisions of Act No. 271 of the Philippine Commission which allow all religious associations, of whatever sect or denomination, whether incorporated in the Philippines or in other country, to hold land in the Philippines for religious purposes, are deemed repealed by the absolute terms of Article XIII, Section 5, of the (1935) Constitution, which limit the acquisition of land in the Philippines to its citizens, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, adopted after the enactment of said Act No . 271.

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Owner’s duplicate certificate as conclusive authority to register accompanying deed Registration procured by means of a forged duplicate certificate or of a forged deed or other instrument is null and void. The law requires that in case of the loss or theft of an owner’s duplicate certificate, notice thereof need be sent to the Register of Deeds as soon as the loss or theft is discovered.

Issuance of transfer certificate of title to purchaser essential The entry of a memorandum of a conveyance in fee simple upon the original certificate of title without the issuance of a transfer certificate of title to the purchaser is not a sufficient registration of such conveyance. The only exception to this rule is in the case of a sale of an unsegregated portion of a parcel of land covered by a certificate of title. When a deed in fee is for a part only of the land described in a certificate of title, the Register of Deeds cannot enter a new certificate of title to the purchaser until a subdivision plan of such land showing all the portions or lots into which it has been subdivided, and the technical descriptions of each portion or lot have been verified and approved by the Director of Land.

Forged deed as root of valid title A forged deed is a nullity and conveys no title. A deed of sale executed by an impostor without the authority of the owner of the land sold is a nu llity, and registration will not validate what

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A purchaser cannot close his eyes to facts which should put a reasonable man upon his guard, and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor. Torrens title — Between one who claims ownership of the disputed property on the basis of a survey and subdivision plan and another whose claim of ownership flows from an original certificate of title in the name of their parents — the latters’ claim will prevail. Requisites of an action for reconveyance: (1) clear and convincing evidence of title to the property; and (2) fact of fraud committed by the party who registered the property in his/her name. Said action presupposes the existence of a defrauded party who is the lawful owner of the disputed property – an element not established in this case. A title once registered under the Torrens System cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription. It is notice to the whole wo rld and as such all persons are bound by it and no one can plead ignorance of the registration. Registration of the sale with the Register of Deeds constitutes notice to the whole world.

Purchaser in g ood faith It is a well settled rule that a purchaser or mortgagee cannot close his eyes to facts which should put a reasonable man on his guard, and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor or mortgagor. His mere refusal to face up to the fact that such defect exists, or his willful closing of his eyes to the possibility of the existence of a defect in the vendor’s or mortgagor’s title, will not make him an innocent purchaser for value, if it afterwards develops that the title was in fact defective.




it was held that the general rule that a person dealing with registered land has a right to rely on the Torrens certificate of title and to dispense with the need of making further inquiries admits of exceptions: when the party has actual knowledge of facts and circumstances that would impel a reasonably cautious man to make such inquiry or when the purchaser has knowledge of a defect or the lack of title in his vendor or of sufficient facts to induce a reasonably prudent man to inquire into the status of the title o f the property in litigation.

Buyer in good faith; annotation of rig ht It is a well-established rule that every person dealing with registered land may safely rely on the correctness of the certificate of title issued and the law will in no way oblige him to go behind the certificate to determine the condition of the property. An innocent purchaser for value is one who buys the property of another without notice that some other person has a right to or interest in such property and pays a full and fair price for the same at the time of such purchase or before he has notice of the claim of another person. The annotation of usufructuary rights does not impose upon the mortgagee-buyer the obligation to investigate the validity of its mortgagor’s title. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance.

Defective or void title may be the root of a valid title if it passes to the hands of an innocent purchaser for value. A void title is a useless piece of paper. It produces no right. The Supreme Court, however, said that even assuming arguendo that the procurement of the title was tainted with fraud and misrepresentation, a defective title may be the source of a completely legal and valid title in the hands of an innocent purchaser for value. cost of documentary stamps are deemed included in such expenses.

Priority of registration determined according to entries in day book

of Deeds has performed his legal duty such a certificate should show all encumbrances on the land described therein.

Date of registration prevails over date of discovery For the purposes of reckoning the period of prescription in relation to an action to annul a supposedly fraudulent transaction involving registered land, an earlier date of registration thereof will be taken into account as against a subsequent date of its actual discovery.

The

In Islamic Directorate vs. CA, 292 SCRA 454, the Supreme Court reiterated the rule that under the Torrens system of registration, the minimum requirement for one to be a buyer in good faith is that the vendee at least sees the owner’s duplicate copy of the title and relies on the same.

Effect of registration of simulated sale In Santiago vs. CA, 278 SCRA 98, the Supreme Court held that where one does not have any rightful claim over real property, the Torrens system of land registration can confirm or record nothing. The Torrens system does not create title. It only confirms and records titles already existing and vested. It does not protect a usurper from the true owner. It cannot be a shield for commission of fraud.

IX CONVEYANCE IN FEE Process 

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Negligence should not be imputed to one who did not go behind a certificate of title in view of the fa ct that if the Register

principle

Protection of buyers in g ood faith

It should be borne in mind, however, that entry in the day book is the preliminary step in registration, while the annotation of memorandum or the issuance of a new certificate of title is the final step to a ccomplish registration.

Failure to examine entries not constituting neglig ence

mirror

a. A purchaser is not required to explore beyond what the record in the registry indicates on its face, in quest for any hidden defect or inchoate right which may subsequently defeat his right thereto. b. The prevailing doctrine is that a mortgagee has a right to rely in good faith on the certificate of title of the mortgagor to the property given as security and in the absence of any sign that might arose suspicion, has no obligation to undertake further investigation.

An owner desiring to convey in fee a registered land must have to execute a deed of conveyance, which the grantor or the grantee may present to the Office of the Registry of Deeds where the land lies (producing therewith grantor’s duplicate certificate). Registrar makes out in the registration book a new certificate of title (in duplicate) in the name of the grantee, delivering to him the duplicate marked “owner’s duplicate certificate.”




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Upon the original and duplicate certificates the Registrar notes down the date of transfer, the volume and page of the registration book where the new certificate is entered or registered, and a reference number to the next preceding certificates. The grantor’s duplicate certificate, which was surrendered, is stamped with the word “cancelled,” and the deed of conveyance of conveyance filed with the proper indorsement showing the number and place of registration of the certificate of title of the land conveyed.

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portion or lot has been verified and approved by the Director of Lands. However, upon written request of the party concerned, the Registrar may make a memorandum of such deed of conveyance on the grantor’s certificate of title and on its owner’s duplicate, this memorandum to serve only as a notice to third parties of the fact that such portion of lot has been sold to the person(s) named in said deed. Upon approval of the plan and technical descriptions, a certificate and issue an owner’s duplicate to the grantor for the part of the land not in cluded in the deed.

Description of land 

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The land object of the conveyance must be properly described, with lot number, block number, location, boundaries, and area. Where two persons engaged (seller and purchaser) a given piece of property with visible boundaries which are agreed upon by the contracting parties as the land to be bought and sold and the vendor by a mistake in the description in the conveyance included therein land previously sold to a third person not included within the visible boundaries referred to, an action will lie in favor of the vendor to correct the instrument so as to describe correctly the land actually sold. (The purchaser, although the title to the land described in his conveyance had been duly registered under the Torrens system, did not obtain an indefeasible title to the land mistakenly included in said certificate of title.)

Boundaries prevail over area (rule and exceptions) 

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What really defines a piece of ground is no t the area but the boundaries therein laid down  But this does not apply where the boundaries relied upon do no t identify the land beyond doubt.  Neither does the rule apply where the boundaries given in the registration plan do not coincide with the outer boundaries of the land covered and described in the muniments of title. It is only when the boundaries given a re sufficiently certain and the identity of the land clearly proved by the boundaries thus indicated, that an erroneous sta tement concerning the area can be disregarded or ignored. Otherwise the area stated should not be followed.

Conveyance of part of land covered by title (P.284) 

The Register of Deeds does not enter any transfer certificate to the grantee until a plan o such land showing all the portions or lots into which it has been subdivided, and the corresponding technical description of each

Discrepancy between plan and plan of origin reported to court. 

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In case there is any discrepancy between the subdivision plan and the original plan (discrepancy may be prejudicial to an adjoining owner or other person having interest in the adjoining land) the matter should be reported to the court (RTC) of the city or province where the land lies. The court after due notice and hearing, determines the case and all questions arising in the connection with such division plan.

Subsisting encumbrances to be carried over to new title 

If at the time of any transfer there appear upon the registration book encumbrances or claims adverse to the title of the registered owner, they shall be stated in the in the new certificate(s), except such as may have been simultaneously released or discharged (Sec. 59, P.D. 1529)  The restrictive covenant binds the subsequent pu rchaser, a privy. For, it is a xiomatic that contracts are enforceable against the parties and their privies.

Vested right in contract to sell 

A vested right is one which is absolute, complete and unconditional, to the exercise of wh ich no obstacle exists, and which is immaterial and perfect in itself and not dependent upon a con tingency.

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To be vested in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent.

Sale in behalf of minor 

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Without the court’s au thority/approval, the sale is ineffective as to a minor child, even if the one who executed the sale is the minor’s judicial guardian. A sale of the ward’s realty by the guardian without authority from the court is void.




Sale with duress

Installment sale with forfeiture clause (P. 293)

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In order that duress may be suffi cient to void a sale contract, Article 1267 (now 1335) of the Civil Cod e requires that the intimidation be reasonable and well grounded. This presupposes that the threatened injury to the person or property must be probable and serious, and that the person from whom the intimidation comes has the necessary means to inflict the threatened in jury. In other words, there must be specific acts or instances of such nature and magnitude as to have, of themselves, inflicted fear or terror upon the subject thereof, in order that his execution of the questioned deed or act cannot be considered voluntary.

Promise to buy and sell, effect 

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Inadequacy or non-payment of price alone cannot invalidate sale  

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Inadequacy of price may be a ground for setting aside an execution sale, but is not sufficient ground for the cancellation of a voluntary contract of sale otherwise free from invalidating defects. Neither nonpayment of price alone may invalidate or make rescissible a sale unconditionally consummated, nor does it constitute a lien or encumbrance on the property sold . For that reason, mere failure on the part of the buyer to pay the price within the period stipulated is not a ground for the resolution of the sale, in the absence of a condition that such default should operate to resolve the contract. However, it is now provided in the new Civil Code (Article 2242) that unpaid price of real property sold constitutes an encumbrance thereon.

Contract of promise to sell, rescissible without the court intervention 

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In a contract of promise to sell, suppose it was stipulated that in case of default on the part of the vendee promisee, the vendor-promisor, without fi ling any action in court, has the right to rescind the contract, take immediate possession of the property subject matter thereof, and even sell it to another pa rty. Where the contract expressly grants the parties the power to revoke o r cancel the contract, judicial action therefor is not n ecessary. A contract to sell on installment basis cannot be rescinded simply because the seller at the time of the execution of the contract happens to be not the owner . It is sufficient that he be the owner at the time the object is delivered.

In a sale by installment, ownership or title does not pass until after the payment of the last installment. Thus, a contract cannot affect the transfer of ownership and title of the property unless a deed of absolute sale is executed and the instrument registered accordingly.

A promise to buy and sell real estate does not pass title, but gives the parties the right to demand the fulfillment of the contract, or damages for breach if the fulfillment is impossible Any agreement to sell is liable to be defeated by disagreement between the parties as to its terms, or by their failure or inability to carry it ou t. However, an accepted unilateral promise to sell, not supported by any consideration distinct from the price, does not produce a binding and enforceable contract of sale. The offer in this case as well as the acceptance both lack a most essential element — t he manner of payment of the purchase price. Hence, the offer to sell may be withdrawn without the offer or committing any breach of contract

Conveyance of land includes improvements thereon. 

When land is object of a sale or conveyance, all buildings and improvements existing thereon are deemed to be included, unless otherwise reserved.  However, where only a lot is sold on installment, and the purchaser after having constructed a house thereon has defaulted in the payment of installments, may he ask as a matter of right for an extension of time to pay the installments overdue on the ground that he has made substantial improvements thereon? Here it was held that to grant his demand would imply a deviation from the rule that buildings are mere accessories to the land which is the principal. It is axiomatic that everything that is built on the

soil yields to the soil. Physical delivery of real estate sold not necessary  

The execution of a public document of sale is equ ivalent to delivery. Physical delivery or the turning over of actual possession by the vendor to the vendee is no t a legal requisite. However,




when dealing with registered land, delivery is not complete unless two requisites con cur, namely: (1) the execution of a p ublic instrument of conveyance; and (2) the registration of the deed, which is the operative act that conveys and binds the land. Double sale of same land

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Article 1544 of the New Civil Code provides as follows: “If the same thing should have been sold to d ifferent vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should b e movable property. “Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. “Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.”

The word “urban” is defined as of , or belonging to, a city or town and is derived from the Latin urbanis which in that language imports same meaning This Latin word is derived in turn from urbs, urbis, a city.

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And “rural property” is to be de termined from the character of the locality, the s treets, lots, buildings, improvements, and the market value of the p roperty, as also of the neighboring and surrounding properties. Whether a particular property is to be considered rural or city depends largely upon its surrounding and the character of the property in the neighborhood. If the buildings and improvements in the neighborhood are few and scattered, if they partake of the character of the country, rather than of the city or town, and are occupied by persons engaged in rural pursuits, the locality should be considered rural. An urban property is further distinguished from rural in that the former is situated in a city o r a town resembling a city, while rural estate is that located in the country, in an agricultural district.

Contract with “pacto de retro” not abolished X. CONDOMINIUM 

Instruments of sale with right to repurchase, executed by virtue of Articles 1601 and 1618 of the Civil Code, may be registered, according to Act No. 1108, under the same conditions and in the same manner as mortgages.

Vendee’s title in “pacto de retro” 

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A sale with pacto de retro transfers the legal title to the vendee, and the vendee is subrogated to all the rights and actions of the vendor, and therefore the vendee is the owner of the estate in fee simple subject to the vendor’s right of redemption. And he may mortgage the property or impose upon it any other charge, but if the vendor redeems it he (the vendor) is entitled to receive it free of any charge or mortgage imposed by the vendee, although he shall be obliged to respect any lease made by the latter in good faith and in accordance with the customs of the place where it is situated.

Rural land and Urban land, distinguished 

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“Rural’’ means pertaining to the country as distinguished from a city or town, and the wo rd is derived from the Latin rus, ruris, the country.

Condominium, concept Condominium or condominia, in civil law, generally means coownerships or limited ownerships. For the purposes, however, of Republic Act No. 4726, otherwise known as the Condominium Act,” a condominium implies both co-ownership and limited ownership, it being defined as ownership of an interest in real property consisting of: (1) a separate part of unit in a residential, industrial or commercial building; (2) an undivided common interest, directly or ind irectly, in the land on which the building is erected; and (3) a similar interest in other common areas of the building itself.

Membership or shareholding in condominium corporation When a title to a condominium is held by a corporation specially formed for the purpose, the holders of separate units or interests in the project are automatically members or shareholders of the corporation. However, a purchaser of a condominium unit in the condominium project who has not fully paid the purchase price thereof does not automatically become a shareholder or member of the Condominium Corporation. The share of stock appurtenant to the unit will be transferred accordingly to the purchaser of the unit only upon full payment of the purchase price at which time he will also become the owner of the unit.




Ownership of condominium project 

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Where condominium project covers the building and the land on which it is erected, acquisition of ownership thereof is limited only to those qualified to acquire or hold lands of the public domain. Thus, under Section 5 of the Condominium Act, where the common areas in land in the condominium project

Registration of restrictions Before any condominium unit may be sold or conveyed, it is a prerequisite that a declaration of restrictions relating to the project be registered, which restrictions constitute a lien that shall be binding upon all condominium owners, subject to be enforced by the owner of the project or its management body.

Registration of sale or conveyance of condominium

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are owned by the owners of separate condominium units, no unit therein can be conveyed or transferred

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except only to Filipino citizens or corporations at least 60% of the capital of which belongs to Filipino citizens. However, a corporation, even if 100% of its capital be owned by foreigners, may set up a condominium corporation if the land on which the building is erected is held only under lease.

Registration of enabling or master deed It is a legal prerequisite in order that a condominium project may come under the operation of the Condominium Act that the enabling or master deed of the project be registered in the office of the Register o f Deeds concerned and annotated on the corresponding certificate of title. The enabling or master deed shall contain, among other things, the following: (1) description of the land; (2) description of the building or buildings, stating the number of stories and basements, the number of units and their accessories , if any; (3) description of the common areas and facilities; (4) statement of the exact nature of the interest acquired or to be acquired by the purchaser in the separate units and in the common areas of the condominium project, and where title to or the appurtenant interests in the common areas are or is to be held by a condominium corporation, a statement to that effect shall be included; (5) statement of the purposes for which the building or buildings and each of the units are intended or restricted as to use; (6) a certificate of the registered owner of the property , if he is other than those executing the master deed, as well as of all registered holders of any liens or encumbrances on the property indicating their consent to the registration of the deed; (7) the following plans appended to the master deed as integral parts thereof; and (8) any reasonable restrictions not contrary to law, morals or public policy regarding the rights of any condominium owner to alienate or dispose of his condominium.

Upon registration of sale or conveyance of a condominium unit with the common areas and facilities thereunto appertaining, the conveyance is annotated on the corresponding certificate of title and thereupon the transferee is issued a condominium owner’s copy of the pertinent portion of such certificate of title, without reproducing thereon the ownership status of the other condominium units in the p roject.

Assessment as lien Unless otherwise provided in the declaration of restrictions, each condominium unit shall be assessed separately for its share to meet reasonable and authorized expenditures in proportion to its owner’s fractional interest in any common areas. Such assessment shall be an obligation of the owner thereof at the time of assessment is made.

Enforcement of such lien Assessment lien that has been duly registered with the Register of Deeds concerned may be enforced in the same manner provided for by law for the judicial or extrajudicial foreclosure of mortgages of real property. The condominium owner shall have the same right of redemption as in cases of judicial or extrajudicial foreclosure of mortagages.

Real estate taxes on condominium Each condominium separately owned shall be separately assessed, for purposes of real property taxation and other tax purposes,

Registration of subsequent dealings A subsequent sale, conveyance or transfer of a condominium unit may be registered in a similar manner as the initial sale, conveyance or transfer; that is, by way of annotation on the corresponding certifi cate of title, followed by the issuance of a condominium certifi cate of title, copy of which is delivered to the transferee. In case, however, where a condominium project covers land registered under Act 3344 (now Section 113 of P.D No. 1529), the registration of a conveyance of a condominium shall be




deemed sufficient if the Register of Deeds retains the original or signed copy of the deed.

Essential requisites of mortgage (Art. 2085)

1. That it be constituted to secure the fulfillment of a principal Additional requirements The project, together with the plans of the buildings prepared in accordance with the National Building Code, is to be submitted to the Housing Au thority for approval. All contracts to sell, deeds of sale and other similar instruments relative to the sale or conveyance of condominium units, whether or not the purchase price is paid in full, are also required to be registered by the seller in the Office of the Register of Deeds of the province or city where the property is situated.

XI. REAL ESTATE MORTGAGE Definition Regarded as a mere lien, and not as creating a title or estate A charge on property for the pu rpose of security. An accessory undertaking for the convenience and security of the mortgage creditor, and it exist independently of the obligation to pay debt secured by it. Kinds of mortgages 

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2. 3.

obligation; That the mortgagor be the absolute owner of the thing mortgaged; That the person constituting the mortgage has the free disposal of the property, and in the absence thereof, that he be legally authorized for the purpose.

(Article 2125) As a further requisite it is indispensable, in order that a mortgage may be validly constituted, that the document in which it appears be registered in the Office of the Registry of Deeds concerned . Failure to register, according to the same article, does not necessarily invalidate the mortgage, but limits its binding e ffect to the parties thereto only. It is also of the essence of the contract of mortgage that when the principal obligation becomes due, the property mortgaged cannot be appropriated by the creditor , but must be sold at public auction in accordance with the procedure prescribed by law for the satisfaction of the ob ligation.

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(a) Conventional or voluntary mo rtgage one created by agreement of the parties.

Mortgage in bad faith 

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(b) Legal mortgage created by operation of law, wherein the creditor is given a mortgage on the property of his debtor, without the necessity of the parties actually stipulating for it. It may also be defined as one required by express provision of law to be executed in favor of certain persons to secure the performance of a principal obligation (e.g. claims of labourers engaged in the construction of a building are to be considered as mortgages upon said building by operation of Article 2243, in relation to Article 2242, of the new Civil Code)

Unless duly registered, a mortgage does not affect third parties settled in this jurisdiction is the doctrine that a p rior registration of a lien creates a preference.

Who may constitute a mortgage

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(c) Judicial mortgage resulting from a judgment. For instance, a plain deed of sale may be declared to be a mortgage by a competent court.

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It is only the absolute owner of the property who can constitute a valid mortgage on it (Art. 2085, NCC). In case of foreclosure, a sale would result in the transmission only of whatever rights the seller had over the thing sold. If the property is sold twice but the sales contract were simulated, they are null and void.

Consent of both parties not necessary to registration of mortgage 

A mortgage may be registered at the instance of the mortgagee alone, even over the ob jection of the mortgagor

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(d) Equitable mortgage one that is not a mortgage in form but in substance a mere security for a debt or obligation. This commonly occurs in the case of pacto de retro sales. 

Special Characteristics of rea l mortgage (a) Realty as subject matter: Only real property or alienable rights and interests therein may be the subject matter of a mortgage. Thus, not only the land and improvements thereon may be mortgaged, but also the credits or rights of the mortgagee or other encumbrancers.




(b) Real right: A mortgage lien is a real right and as such it is good and binding against the whole world, and may be enforced by real action against all persons who may have existing rights or interests in the same property, not registered prior to the mortgage. It was held that even if personal action on the debt secured has prescribed, a suit to enforce the mortgage may still lie so long all such debt has not yet been paid. (c) Accessory obligation: As an obligation, a mortgage is only accessory and presupposes the existence of a principal obligation. In the absence therefore of a principal obligation, a mortgage cannot stand. (d) Indivisibility: Even though the debt secured may be divided among the debtors or the creditors or their successors in interest, the mortgage shall remain as one and indivisible, unless there have been several things given in mortgage and each of them guarantees only a determinate portion of the obligation (e) Inseparability: The mortgage lien and the property affected are inseparable, so much so that whoever may subsequently acquire title to the mortgaged property is bound by the terms of the mortgage, whether the transfer be with or without the consent of the mortgagee. In other words, the mortgage, until discharged, follows the property to whomever it may be transferred no matter how many times over it changes hands as long as the annotation is carried over. (f) Retention of possession. The mortgagor generally retains possession of the mortgaged property inasmuch as a mortgage is a mere lien and title to the property does not pass to the mortgagee.

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Mortgage compared with antichresis (P.331) (a)

(b)

“Pacto de retro’’ sale when considered an equitable mortgage 

where a contract of sale with pacto de retro is executed as security for a debt owing by the grantor from the grantee , such conveyance must be treated in equity substantially as a mortgage, that is, creating a mere equitable charge in favor of the creditor or person na med as purchaser therein; and the fact that the conveyance was executed for this purpose may be shown by oral evidence apart from the instrument of conveyance.  The equitable doctrine that any conveyance intended as security for a debt will be held in effect to be a mortgage, whether actually so expressed in the instrument or not, operates regardless of the form of the agreement chosen by the contracting parties as repo sitory of their obligations.  Equity looks through the form and considers the substance; and no kind of engagement can be devised which will

enable the purchaser to evade the effects of the doctrine to which reference is made. However, for the purpose of determining whether a contract is truly a sale under pacto de retro or an equitable mortgage, the Civil Code of the Philippines has provided a number of tests embodied in the following article: “Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases: (1) When the price of a sale with right to repurchase is usually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser 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 o bligation.

(c)

As to possession of the property given in security, the debtor retains it in the case of a mortgage; whereas, the creditor takes over in the case of antichresis. Thus, a mortgage , coupled with delivery of possession of the land to the creditor, becomes an tichresis, With respect to the fruits, in a mortgage the creditor does not gather or receive them whereas, in antichresis the creditor generally receives them with the obligation to apply the value thereof or proceeds therefrom to the payment of interest due, and, if any still remaining, to the principal obligation. In antichresis the creditor is obliged to pay for the taxes and charges upon the estate; whereas, in mo rtgage it is the debtor.

Execution and registration of mortgage 

As provided by Sec. 60 of P.D. No. 1529, the owner of registered land may mortgage the same by executing a mortgage deed, and such deed may be assigned, extended, discharged, released in whole or in part, or otherwise dealt with by the mortgagee by any form of deed or instrument suffi cient in law for the purpose. But such mortgage deed, and all instruments assigning, extending, discharging, and otherwise dealing with the mortgage, shall be registered,

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and shall take effect upon the title only from the time of registration. As to when such deeds are executed in a form sufficient in law (read Sec 112, P.D. No. 1529)

What a married woman may mortgage without marital consent 

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A married woman, of legal age, may mortgage her paraphernal property without the permission of h er husband. So, also, under the system of complete separation of property of the spouses, the wife may dispose of o r mortgage her separate estate, without the consent of her husband, including what she may accumulate from her profession, business, or industry. With respect to conjugal property, she may mortgage such property only in case the administration thereof has been transferred to her by the court

(a) when she becomes the guardian of her husband, (b) when she asks for the declaration of his absence, and (c) in case of civil interdiction o f the husband.

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Consideration of mortgage 

Registration of mortgage; how effected The mortgage deed is filed together with the owner’s duplicate certificate of title with the Register of Deeds of the city or province where the land lies. Thereupon, this official enters upon the original certificate of title and the owner’s duplicate certificate a memorandum of the purport of the mortgage deed, the time of filing, and the file number of the deed, signing the memorandum after the entry. He also notes down upon the mortgage deed the time of filing and a reference to th e volume and page of the registration book where it is registered.

“The consideration of a mortgage, which is an accessory contract, is that of the principal contract, from which it receives its life, and without which it cannot exist as an independent contract, even if the obligation thereby secured is of a third person, and therefore it will be valid, if the principal one is valid, and cannot be voided on the ground of lack o f consideration.’’

Extent of subject matter 

Issuance of mortgagee’s title 

(Section 60 of Presidential Decree No. 1529) no mortgagee’s or lessee’s duplicate certificate of title shall be issued by the Register of Deeds, and those issued prior to the effectivity of said Decree are d eemed cancelled and the holders thereof required immediately to surrender same to the Registrar of Deeds concerned.

Mortgage by non-owner unenforceable; exception. 

Where the mortgagor is the debtor or obligor h imself, the consideration of the mortgage is the debt or the obligation assumed and secured by this accessory contract . However, where the mortgagor is a third person, who is not the debtor or obligor himself, there may arise a question as to the validity of the mortgage in view of the apparent lack of consideration. On this point, the following principle has been laid down:

Marital consent necessary under system of absolute community of property (p334)

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Where a mortgagor has no title at all to the property mortgaged, the mortgage is void. a mortgage of real property executed by one who was not yet the owner thereof at the time of the execution of said mortgage is without legal e xistence. However, as an exception to the rule, we have a case where the choice is between two innocent persons—an innocent co-owner who did not p articipate in the execution of the mortgage but was negligent, and the innocent mortgagee who relied upon a Torrens Title and loaned money in all good faith on the basis of the title standing in the name of the mortgagors, only thereafter to discover one of the co-owners to be an alleged forger of the other who by his negligence and acquiescence made the fraud possible — as between these two innocent persons, it was held that the negligent co-owner must bear the loss.

it extends further to the natural accessions, to the improvements, growing fruits, and the rents or income not yet received when the obligation becomes due, and to the amount of the indemnity granted or owing to the proprietor from the insurers of the property mortgaged, or in virtue of expropriation for public use, whether the estate remains in the possession of the mortgagor, or it passes into the hands of a third person.

Future property as subject matter 

A stipulation to include in the mortgage other property to be subsequently acquired by the mortgagor is without legal effect , even if the instrument of mortgage was




registered, because it is an essential requisite of such a contract that the mortgagor be at the time the absolute owner of the thing mortgaged.

person to whom he has transferred the property has assumed the obligation to pay said debt, and the creditor accepted payments from said transaction on account of the debt; for, said transfer having been made without the

Machineries and fixtures included in real mortgage; when excluded 

It is a well-settled rule that all objects permanently attached to a mortgaged building or land are deemed included. That includes not only fixtures but also machinery and other objects placed upon and used in connection with the mortgaged estate. If it is intended to exclude any of them, it is indispensable that it be so stipulated between

the contracting parties.

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consent of the creditor, the contract was not thereby novated. Novation of mortgage may only be accomplished with the express, not implied, consent of the mortg agee. if there were a novation, the effect would be that the original debtor would have been relieved of the obligation and only the transferee of the mortgaged property would be bound.

Mortgagee in bad faith (read p. 347)

Continuing credit secured by mortgage ( read p. 342)

“Pactum commissorium,’’ nature and effect

Mortgage constituted by private document not legal

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In order to constitute a legal mortgage, it must be executed in a public document, besides being recorded. A provision in a private document, although denominating the agreement as one of mortgage, cannot be so considered as it is not susceptible of inscription in the property registry. A mortgage in legal form is not constituted by a private document, even if such mortgage be accompanied with delivery of possession of the mortgaged property. But in Article 2125 it states that “if the instrument is not recorded, the mortgage is nevertheless binding between the parties.”

Pactum commissorium is a stipulation empowering the creditor to appropriate the thing given as guaranty for the fulfillment of the obligation in the event the obligor fails to live up to his undertakings, without further formality, such

as foreclosure proceedings, and a public sale. How mortgage may be discharged 

A mortgage may be discharged by the creditor executing a public instrument cancelling or releasing the mortgage (Sec. 127, P.D. 1529), and the instrument being presented with the office of the Register of Deeds of the city or province where the land lies, together with the owner’s duplicate title, for registration. Th ereupon, a memorandum of cancellation is annotated.

May mortgage be registered without the owner’s duplicate title (read sec. 71, 72, P.D. 1529)

Stipulation of “tipo” or upset price in mortgage contract Assignment of mortgage; registration (Sec 60, P.D. 1529) 

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it is required that an assignment of mortgage be registered, the same to take effect upon the title only from the time of registration. This does no t mean, however, that as between the parties the assignment is without legal effect, unless registered . Thus, it was held that the alienation or assignment of a credit secured by mortgage is valid and efficient and legally transfers the dominion or ownership of the same, even if the transfer of said credit was not recorded in the registry.

Sale of mortgage property does not necessarily constitute novation of mortgage 

The fact that the mortgagor has transferred the mortgaged property to a third person does not relieve him of his obligation to pay the deb t to the creditor , although the

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A stipulation in a mortgage of real property fixing a “tipo” or upset price to become operative in the event of a foreclosure was held to be ineffective, for according to statutes the p roperty must be sold to the highest bidder at the auction sale Hence, the purchaser at public auction who won the bid at a price lower than that fixed in advance by agreement of the parties to the contract must have to be upheld.

Recourse left to mortgagee upon death of mortgagor (Rule 86, Sec 7, ROC) (1) He may abandon the security and prosecute his claim by filing it with the office of the Clerk of Court, and share in the general distribution of the assets of the estate; or (2) he may foreclose the mo rtgage, by ordinary action in court, making the executor or administrator a pa rty defendant,




(3) and if there should be deficiency after the sale of the mortgaged property, he may prove the same in the estate proceeding, or (4) he may continue to rely upon his mortgage and foreclose it, if necessary, in due time, in which case he will not be admitted anymore as creditor of the estate with right to share in the distribution of the assets.  The following serve as alternative options, thus, if the mortgagee elects one of the alternatives enumerated above, he must abandon the others.

have prescribed at the time when the foreclosure is instituted, so long as the debt has not in fact been paid

and the latter action has not itself prescribed. Venue in an a ction for foreclosure 

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prior to the trial, it is deemed waived.

Mortgagee as an indispensable party 

A mortgagee of a real property is an ind ispensable party in an action for declaration of nullity of title.

Attachment as additional remedy to foreclosure 

Foreclosure suit; necessary p arties thereto 

All persons having or claiming an interest in the mortgaged property subordinate in right to that of the holder o f the mortgage should be made defendants in the action for the foreclosure of the mortgage (Rule 68, Se c 1, ROC)

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Under Act No. 3135, Sec. 3, if the value of the property subject of the fo reclosure is more than (P400.00, the notice of sale must be posted and published . The failure to post a notice is not per se a ground for invalidating the sale provided that the notice thereof is duly published in a newspaper of general circulation. Section 3. Notice shall be given by posting notices o of the sale for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published o nce a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city.

A mortgagee has the right to rely on the mortgaged property, undiminished and unimpaired by any superior lien or legal impediment brought about by the act or omission of the mortgagor. In a mortgage foreclosure proceeding the court has

jurisdiction to grant an attachment against the property of the debtor , to be levied upon property not covered by the mortgage, upon proper showing by affidavit that the value of the mortgaged property is insufficient to cover the debt and that the debtor has disposed or is about to dispose of his other property with intent to defraud his creditors

Requisites in foreclosure sale 

An action for foreclosure of mortgage on rea l property may be commenced and tried in the city or province where the property or any pa rt thereof lies. However, by agreement of the parties, the venue of an action may be changed or transferred from one province to another. Besides, when improper venue is not objected to

Judgment on foreclosure 

The court shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interests and costs, and shall render judgment for the sum so found due and order that the same be paid into court within a period of not less than ninety days from the date of the service of such order, and that, in default of such payment, the property be sold to realize the mortgage debt and costs.

XII CHATTEL MORTGAGE

Action to foreclose subject to prescription

Chattel mortgage, nature and meaning

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Art. 2140. By a chattel mortgage, personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation. If the movable, instead of being recorded, is delivered to the creditor or a third person, the contract is a pledge and not a chattel mortgage.’’

Title to registered land does not stand on the same footing as right to a registered mortgage, in the sense that while title to registered land under the Torrens system does not prescribe even for a hundred years, the right of action to foreclose a mortgage affecting registered land prescribes after ten years (Article 1142, New Civil Code)  However, recourse may be had to foreclose a mortgage, notwithstanding the fact that the personal action to recover the indebtedness secured by said mortgage may

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a contract which purports to be, as in form is, a sale of personal property, intended as security for the payment of a debt, or the performance of some other




obligation specifi ed therein, upon the condition subsequent that such sale shall be void upon payment of the debt or performance of the specifi ed obligation according to the term of the contract.  In other words, and following our local tendency, we may defi ne the true nature of a chattel mortgage as a sale only in form, while in substance essentially a contract of security. Thus, the mortgagee does not become the owner of the property mortgaged, the ownership remaining with the mortgagor, and consequently, under the maxim: res perit domino suo, the mortgagor-owner shall bear the loss of the thing mortgaged.  SUBJECT MATTER: movables or personal p roperty  The accessory contract of chattel mortgage has no legal effect whatsoever where the mortgagor is not the absolute owner of the property mortgaged, ownership of the mortgagor being an essential requirement of a valid mortgage contract. The manifestations of ownership are control and enjoyment over the thing owned.

Chattel mortg age as a conditional sale leaves mortg agor right of redemption It has been held that since a chattel mortgage is a conditional sale (Section 3, Act No. 1508) and assuming that the ownership of the chattels mortgaged passes to the mortgagee, the only thing that can be attached under an execution against the mortgagor is his right t o redeem the mortgaged chattels.

Direct attack on a title  

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A Torrens title can only be attacked directly. It is well-settled that a certifi cate of title cannot be subject to collateral attack and can be altered, modifi ed or cancelled only in a direct proceeding in accordance with law. Having obtained a valid title over the subject lot, petitioner is entitled to protection against indirect attacks against his t itle. “The Torrens system was adopted in this country because it was believed to be the most e ffective measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized.

Machinery and fixture as subject matter 

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Machinery and fixture are personal property by their very nature, and there can be no question that as a rule they may be object of chattel mortgage. However, if they are attached to real property or placed in a factory building or plant, with the character of permanence according to their purpose and in such manner that they cannot be d etached therefrom without causing destruction of, or mat erial injury to, the things real with which they are connected, they would be regarded as part of the real estate, and therefore cannot be object of a valid chattel mortgage.

An interest in a business mortgageable if properly described An interest in a business may be subject to chattel mortgage, for it is a personal property, being capable of appropriation, and not included among the real properties enumerated in Article 334 (now 415) of the Civil Code. But the description of such chattel must be sufficient enough so as to enable the parties to the mortgage or any other person to identify the same after a reasonable investigation or inquiry. On the other hand, Section 7 of Act No. 1508 does not demand a minute and specific description of every chattel mortgaged in the deed of mortgage but only requires that the description thereof be such “as to enable the parties in the mortgage, or any other person, after reasonable inquiry and investigation, to identify the same.” Gauged by this standard, general descriptions have been held valid.

Shares of stock as security of an obligation Although shares of stock of a corporation represent equities that may consist of real as well as personal property therein, they are considered under applicable law and jurisprudence as intangible personal property, and therefore may properly be subject of chattel mortgage.

Growing crops as personal property Growing crops, like ungathered sugar cane in the field, are personal property and as such may be subject matter of chattel mortgage.

Vessels as subject matter House as object of chattel mortgage Vessels are considered personal property under the civil law. If the owner of the building is distinct and different from the owner of the land, it may be considered a personal property upon stipulation of the parties, for the purpose of constituting a chattel mortgage.

Section 3 of Presidential Decree No. 1521, no mortgage, which covers a vessel of domestic ownership or any portion thereof, shall be valid against any third person other than the




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mortgagor, his heirs and assigns, and such other person having actual knowledge thereof, until such mortgage is recorded in the office of the Philippine Coast Guard of the port of documentation of such v essel.

Motor vehicle when object of chattel mortgage 

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it was held that a mortgage of any motor vehicle in order to affect third persons should not only be registered in the Chattel Mortgage Registry, but the same should also be recorded in the Motor Vehicles Offi ce, and that the failure of the mortgagee to report the mortgage executed in his favor has the effect of making said mortgage ineffective against a purchaser in good faith who registered his purchase in the Motor Vehicle Office. a chattel mortgage of a car in order to affect third persons should not only be registered in the Chattel Mortgage Registry but should also be recorded in the Land Transportation Commission (now Land Transportation Offi ce), as required by the Revised Motor Vehicles Law.

Mortgage of after-acquired property valid A mortgage may, by express stipulations, be drawn to cover goods put in stock in p lace of others sold out from time to time. Where a mortgage covering the stock in trade, furniture, and fixtures in the mortgagor’s store provides that ‘all goods, stock in trade, furniture and fi xtures hereafter purchased by the mortgagor shall be included in and covered by the mortgage,’ the mortgage covers all after-acquired property of the classes mentioned, and, upon foreclosure, such property may be then and sold by the mortgagee the same as the property in the possession of the mortgagor at the time the mortgage was executed.

Registration of Chattel Mortgage 1.Execution of document 2.Payment of fees 3.Register of Deeds enters in DAY BOOK in strict order of their presentation chattel mortgages & other instruments relating thereto (primary p rocess) 4.Register of Deeds thereafter enters in a more detailed form the essential contents of the instrument in the Chattel Mortgage Register (complementary p rocess)

Sufficiency of registration It is to be noted that when a party in interest has presented his instrument and paid in fu ll the registration fees required by law, and such instrument has been duly entered in the Day Book of the Chattel Mortgage Register, nothing more is to be done by such private party. What remains to be done is incumbent upon the government, thru the Registrar to perform. Such being the case, it is believed that, insofar as the registrant is concerned, registration should be deemed sufficient, even if the complementary process thereof has not yet been actually accomplished; the party in interest should thereupon be entitled to the full protection of the law.

Effect of registration 

Larg e cattle as object of chattel mortg age Large cattle includes the horse, mule, ass, carabao, o r other domesticated member of the bovine family.

Where to register chattel mortgage 

Where to register chattel mortgage. As required by Section 114 of Presidential Decree No. 1529, a chattel mortgage shall be recorded in the of fice of the Register of Deeds of the province or city where the mortgagor resides as well as where the property is situated or ordinarily kept.

However, this requirement of double registration does not seem mandatory, inasmuch as under an express proviso in subsequent Section 116, Subsection 2(e), of the same Presidential Decree, the registration of the chattel mortgage in the province where the p roperty is situated is deemed sufficient registration

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While registration adds nothing to the instrument, considered as the source of title of the mortgagee, it operates as a constructive notice of the existence of the chattel mortgage. The transaction thereby becomes binding against third persons. Creates a lien – attaches to the property whoever holds it; binding on subsequent purchasers The chattel mortgage lien attaches to the property wherever it may be; hence, the buyer acquires the property subject to such liens and encumbrances as existed at the time of the e xecution sale.

Sale of chattel without consent of mortgagee Under the provisions of Article 319, paragraph 2, of the Revised Penal Code, any mortgagor who shall sell or pledge personal property already pledged or mo rtgaged under the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the Register of Deeds of the province or city where su ch




property is located, incurs criminal responsibility. Thus, it is void and a criminal act.

Government lien superior to mortgage lien

stipulation in regard to the increase of the mortgage credit, and, even if it does, said increase would take effect only from the date of the increase. Hence, it is obvious that a chattel mortgage cannot be made to secure a future debt.

Taxes due the government are preferred and superior to the mortgage lien.

Registration of assig nment of mortgage

Effect of failure to regi ster Where there exists a chattel mortgage contract in due form, but for some reason or another it was not, as it should be, registered in the office of the Register of Deeds concerned, the effect would be that it still remains a valid chattel mortgage as against the mortgagor, his executors or administrators, but void as against third persons, such as intervening purchasers or creditors claiming liens by attachment, judgment or execution. In case of failure to register, the chattel mortgage remains valid but only as against the mortgagor; but that, if the thing given in mortgage has been delivered to the creditor, the chattel mortgage extends its binding effect to third persons in spite of lack of registration. However, where the description of the property and date of delivery appear in a public instrument, and there was no chattel mortgage contract executed, only then may we properly treat it as a pledge, and not a chattel mortgage good and valid against th ird persons. “if the movable, instead of being recorded, is delivered to the creditor or to a third person, the contract is a pledge and not a chattel mortgage.” Actual knowledge is same effect as registration

Affidavit of good faith; effect of omission The Chattel Mortgage Law in its Section 5 describes an affidavit of good faith. This affidavit is required to be appended to such mortgage and recorded therewith. The absence of such affidavit vitiates a mortgage as against creditors and subsequent encumbrancers. As a consequence a chattel mortgage of a vessel wherein the affidavit of good faith required by the Chattel Mortgage Law is lacking is unenforceable against third persons.   

Mortgaged is made to secure obligation specified Valid & just obligation Not entered into for purpose of fraud

Effect of increase of security; chattel mortg age to secure future debts, void

With respect to the registration of an assignment of chattel mortgage, it was held that the Chattel Mortgage Law was only permissive and not mandatory, and that an inscription of an assignment of chattel mortgage in the office of the Register of Deeds did not operate as constructive notice to third persons.

Cancellation of Chattel Mortgage Mortgagee to execute a discharge of the mortgage in manner provided by law

Redemption right of junior mortg agee and attaching creditor It was held therefore that as between the first and second mortgages, the second mortgagee has at most only the right to redeem, and even when the second mortgagee goes through the formality of a foreclosure, the purchaser acquires no more than the right of redemption from the first mortgagee.

Foreclosure of chattel mortgage; condition precedent  

The must first be non-payment & at least 30 days have elapsed since then Alternatives: 1.Judicial 2.Extra-judicial – o nly if there is stipulation/authority

Procedure of Foreclosure 1.Notice posted for 10 days in at least 2 public places in municipality where property is to be sold designating the time, place and purpose of sale 2.Mortgagor is notified in writing at least 10 days before sale 3.Public auction 4.30 days after sale, officer makes a return & file with Register of Deeds where mortgage has been recorded 5.Officer’s return operates as a discharge of the lien created by the mortgage 6.Proceeds to be applied: a. Cost of sale b. Amount of ob ligation c. Subsequent mortgages d. Balance – mortgagor

The increase of a mortgage security becomes a new mortgage in itself where the original mortgage does not contain any




May deficiency in proceeds from foreclosure sale be recovered It has been held that in case of deficiency in the foreclosure of a chattel mortgage arising not from a sale on installment basis an independent action may be instituted for the recovery of said deficiency

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Lease affecting property previously mortgaged in spite of stipulation against subsequent encumbrance 

XIII LEASES 

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Under the Civil Code, a contract of lease may be of things, or of work and service (Article 1642). The nature of a contract of lease is concisely defined by Article 1643: “In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid.”

Assignment of lease and sublease distinguished 

In an assignment of lease , the lessee makes an absolute transfer of his interest as such lessee, thus disassociating himself from the original contract of lease, so that his personality disappears and there remains only in the juridical relation two persons, the lessor and the assignee who is converted into a lessee; whereas, if he retains a reversionary interest, however small, the transfer is deemed a mere sublease.  A mere sublessee, however, cannot invoke any right superior to that of the sublessor or the direct lessee, and the transfer of physical possession of the leased premises to a sublessee or a privy of the latter does not affect the lessor’s right to evict him judicially.  Thus, it is now settled that a judgment of eviction against a tenant affects a sublessee even if the latter is not made a party to the ejectment case, so much so that a writ of execution issued in a forcible entry and detainer case is enforceable not only against the defendant but also his privies even though the latter had not been made a partydefendant in the judgment case.

Leases of registered land shall be registered in the manner provided in Section 54 o f P.D. 1529:  by filing with the Register of Deeds the instrument creating the lease and by a brief memorandum made by this official upon the certificate of title signed by him.

the court held that in spite of the prohibition contained in the contract of mortgage, the subsequent lease of the property may still be registered, without prejudice to the right to foreclose the mortgage in view of the alleged violation.

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The mere registration of the lease will not operate to destroy the mortgage rights. the purpose of registering an instrument is to give notice thereof to all persons

Unregistered lease not void  

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Under Sec. 51, P.D. 1529, unregistered lease is not void. On the other hand, it says that the lease shall operate as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. It is true that it is the act of registration that conveys and affects the land; but this does not mean that before registration the lease is inoperative or no t binding between the parties themselves.

Registration of lease, upon whom incumbent 

While the lease is registrable, the law does not make it the duty of the lessor to register it. It is for the lessee to ask for such registration, if he wants to protect his leasehold, and the document of lease operates as evidence of authority to the Registrar to effect the registration.

Knowledge of existing lease binding on purchaser 

Registration of leases 

A contract of lease or sublease of real estate should be in writing so that it may be registered and thereby be binding upon third persons.

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Where the purchaser has knowledge at the time of the purchase that the land has been leased to a third person and is informed of the terms of such lease, he is bound to respect it, although it is not entered upon the certificate of title, the lease is such a case to be deemed a part of the contract of sale (under Article 1676, NCC), consistent with the principle that actual knowledge is equivalent to registration. However, said rule applies only to leases for fixed terms and not to those f rom month to month.




Lease of lands to aliens 

Since they are barred from acquiring lands through a sale, they are only allowed to lease

Right of builder in good faith to register 

A possessor in good faith who builds or makes useful improvements on the estate possessed is entitled to demand payment of the value thereof and to retain the

4. It involves the existence of equitable duties imposed upon the holder of the t itle to the property, to deal with it for the benefit of another; and 5. It arises as a result o f a manifestation of intention to create the relationship. Power of attorney, defined . 

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estate until the expenditures incurred therein are paid to him, in accordance with Article 546 of the Civil Code.

Commitment to pay for improvements when enforceable by execution 

In a case where the owner of the land, in conformity with a court decision, has made his choice to appropriate the building and has duly informed the court of said choice, and accordingly is ordered to comply with the same by buying the building erected on his land and pay the value thereof as fixed by the court, such commitment of the owner of the land is thereby converted into a money obligation which can be enforced by execution, regardless of the unwillingness and inability of the party concerned to pay the amount.

XIV TRUSTS AND POWERS OF ATTORNEY

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Power of attorney distinguished from trust In a power of attorney only two persons are necessary, namely, the principal and the attorney-in-fact; whereas, in a trust there are generally three persons involved, namely, the trustor, the trustee, and the cestui que trust or beneficiary. A power of attorney is never imperative but always discretionary, while a trust is always imperative and leaves nothing to the option of the trustee. The attorney-in fact in a power of attorney acts for the use and benefit of the principal who appointed him, while the trustee in a trust instrument acts not necessarily for the benefit of the trustor who appointed him but, upon his discretion, for the ultimate benefit of a third party — the cestui que trust.

Kinds of trust and how are they created

Trust, defined 

A power of attorney has been defined as an authority enabling one person to dispose of the interest which is vested in another. A general power of disposition as may be granted to another in a power of attorney does not imply ownership.

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is a confidence reposed in one person, who is termed trustee, for the benefit of another, who is called the cestui que trust, the source of the trust being called the trustor. obligation of a person to whom legal title to property is transferred to hold the property according to confidence reposed in him

2 KINDS:

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Express trusts are created by the intention of the trustor or of the parties, while implied trusts come into being by operation of law, either through implication of an intention to create a trust as a matter of law or through the imposition of the trust irrespective of, and even contrary to, any such intention. In turn, implied trusts are either resulting or constructive trusts. They arise from the nature or circumstances of the consideration involved in a transaction whereby a person thereby becomes invested with legal title but is obligated in equity to hold the legal title for the benefit of another.

1.Expressed – need to be in w riting; cannot be proved by parole evidence 2.Implied – exist by operation of law; can be proved by pa role evidence

Kinds of implied trusts

Characteristics of trust

Implied trusts may either be: (1) resulting, or (2) constructive trusts, both coming into being by operation of law.

1. It is a relationship; 2. It is a relationship fiduciary in character; 3. It is a relationship with respe ct to property, not one involving merely personal duties;

Concept of resulting trust A resulting trust is presumed to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction but not expressed in the deed itself. It is based




on the equitable doctrine that valuable consideration, not legal title determines the equitable title or interest. They arise from the nature or circumstances of the consideration involved in a transaction whereby a person thereby becomes invested with legal title but is obligated in equity to hold the legal title for the benefit of ano ther.

Concept of constructive trust A constructive trust is created, not by any word evincing a direct intention to create trust, but by operation of law in order to satisfy the demand of justice and to prevent unjust enrichment. It arises contrary to an agreement or intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold. It is to be borne in mind that the enforcement of an implied or constructive trust is, in effect, to p rovide an equitable remedy

Requisites of a purchase of money resulting trust To give rise to a purchase money resulting trust, it is essential that there be: 1. an actual payment of money, property or services, or an equivalent, consisting of valuable consideration; and 2. such consideration must be furnished by the alleged beneficiary of a resulting trust

Burden to prove the existence of trust and the nature of the evidence As a rule, the burden of proving the existence of a trust is on the party asserting its existence, and such proof must be clear and satisfactorily to show the existence of the trust and its elements. While implied trusts may be p roved by oral evidence, the evidence must be trustworthy and received by the courts with extreme caution, and should not be made to rest on loose, equivocal or indefinite declarations. Trustworthy evidence is required because oral evidence can easily be fabricated.

Trust created to go around the law, void This, it has been held that a trust will not be created when, for the purpose of evading the law prohibiting one from taking or holding real property, he takes a conveyance thereof in the name of a third person. By transgressing the law and allowing one to be a dummy in the acquisition of land, he ha s eliminated the very source of his claim in the land and, consequently, he cannot lawfully assert any right o r interest therein.

Registration of trust 1.Sworn statement claiming interest by reason of an implied trust with description of land & reference to number of certificate shall be registered in Register of Deeds 2.Provided not prohibited to do so by instrument creating the trust

Trust with express power to sell, etc. If the instrument creating or declaring a trust or other equitable interest contains an express power to sell, mortgage, or deal with the land in any manner, such power shall be stated in the certificate of title by the words of description in case of other powers. No instrument transferring, mortgaging, or in any way dealing with registered land held in trust shall be registered, unless the power thereto enabling is expressly conferred in the instrument of trust.

Registration of constructive Whoever claims an interest in registered land by reason of any implied or constructive trust shall file for registration a sworn statement thereof with the Register of Deeds. Such claim shall not affect the title of a purchaser for value and in good faith before its registration.

Examples of resulting trusts Rig ht of trustee to apply for registration The following are examples of resulting trusts. (1) Art 1488 (2) Art 1449 (3) Art.1452 (4) Art 1453

Examples of constructive trusts The following are examples of constructive trusts. (1) Art. 1450. (2) Art 1454. (3) Art 1455 (4) Art. 1456

Existence of “cestui que trust” not indispensable In regard to private trust, it is not always necessary that the cestui que trust should be named, or even in esse at the time the trust is created in his favo r.

Section 14 of P.D. No. 1529 expressly grants any trustee authority to file an application for registration of any land held in trust by him, provided he is not expressly prohibited to do so by the instrument creating the trust.

Trustee cannot assert title adverse to his principal The rule has it that “the relations of an agent to his principal are fiduciary, and it is an elementary and very old rule that in regard to property forming the subject matter of the agency, he is estopped from acquiring or a sserting a title adverse to that of the principal. His position is analogous to that of a trustee and he cannot consistently with principles of good faith, be allowed




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to create in himself an interest in opposition to that of his principal or cestui que trusts. The registrant is regarded in the eyes of the law as a mere trustee. Hence, he is under obligation to execute the deed of reconveyance in favor of the true owner in keeping with the primary principle of law and equity that “one should not unjustly enrich himself at the expense of another.’’

Possession by trustee, when deemed adverse 

 

It is a well-settled rule that possession of a trustee is, in law, possession of the cestui qui trust and, therefore, it cannot be a good ground for title by prescription. The only instance in which the possession of a trustee may be deemed adverse to the cestui que trust is when the former makes an open repudiation of the trust by unequivocal acts made known to the latter. A concrete instance to prove adverse possession by a trustee amounting to an ouster of the owner is where the trustee has refused to share the products of the land with said owner or h is heirs.

A trustee may not acquire title over a property held in trust As a rule, no because the possession is not adverse. In order that he may acquire title by acquisitive prescription, the following requisites must be present: (a) He must repudiate the trust; (b) He must communicate such repudiation to the beneficiaries; (c) The evidence thereon must b e clear and conclusive; (d) There must be adverse, open, public, and continuous possession within the period fi xed by law. In an implied trust, the action to recover must be brought within 10 years from the issuance of the title to the property. Thereafter, the action shall prescribe.

Prescription of action for reconveyance of property held under constructive trust 

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An action for reconveyance of real property based on an implied or constructive trust prescribes in ten years, provided that no fraud has been employed by the trustee prior to or simultaneous with the procurement of the property in his name, in which case the enforcement of the implied trust do es not prescribe. It cannot be overemphasized that now it is a settled doctrine that an action for reconveyance based on implied or constructive trust is prescriptible. It prescribes in ten years. And where the transaction constituting implied or constructive trust has been registered, the period of prescription commences as of the date of its registration.

If acknowledged in written form – becomes express trust – prescribes upon repudiation

Effect if a property is acquired through mistake or fraud If property is acquired through mistake or fraud, the person obtaining it, is by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. (Art. 1456, NCC). Thus, the law thereby creates the obligation of the trustee to reconvey the property and the title thereto in favor of the true owner. The prescriptive period for the reconveyance for fraudulently registered real property is ten (10) years reckoned from the date of the issuance of the certificate of title.

Registration of power of attorney Any person may by power of attorney procure land to be registered and convey or otherwise deal with registered land, but the letters of attorney shall be acknowledged before a notary public and shall be f iled with the Register of Deeds of the city or province where the land lies, and registered. Like a trustee, an attorney in fact cannot assert title adverse to his principal.

Notation of power of attorney on title The memorandum of a power of attorney made on the back of a certificate of title is not admissible as evidence of the contents of said power of attorney, but only of the fact of its execution, of its presentation for notation, and of its notation for the purposes of constructive notice to the public in connection with the creation of preferential rights to the registered land covered by the title.

How power of attorney should be construed Power of attorney, like any other instrument, is to be construed according to the natural import of its language; and the authority which the principal has conferred upon his agent is not to be extended by implication beyond the natural and ordinary significance of the terms in which that authority has been given. The attorney has only such authority as the principal has chosen to confer upon him, and one dealing with him must a scertain at his own risk whether h is acts will bind the principal.



ALO, AWING, DELA CERNA Owner’s duplicate title not immediately required for annotation of attachment, etc. XV INVOLUNTARY DEALINGS WITH REGISTERED 

Involuntary dealings 

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certificate is not presented at the time of the registration to the Register of Deeds, he shall within thirty-six hours

As the phrase indicates, involuntary dealings with registered lands refer to certain kind of transactions affecting such lands in which the cooperation of the registered owner is not needed. It may even be against his will.

Attachment, nature and kinds In general, an attachment is a writ issued at the institution or during the progress of an action, commanding the sheriff or other public officer to attach the property, rights, credits, or effects of the defendant to satisfy the demands of the plaintiff. Attachment may be classified into three kinds, namely: (1) Preliminary attachment – is that issued at the institution or during the progress of an action. It is the mesne process, liable to be dissolved at any time and the judgment upon which may or may not affect the property seized.

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Under the provisions of Section 69 of P.D. 1529, an attachment or copy of any writ, order or process , in order to create or preserve any lien, right or attachment upon registered land, may be filed and registered in the office of the Register of Deeds for the province or city in which the land lies, such writing to contain, among other things, a reference to the number of the certificate of title of the land to be affected, and also if the attachment, right, or lien is not claimed on all the land in any certificate of title, a description sufficiently accurate for identification of the land intended to b e affected.

thereafter send notice by mail to the registered owner, stating that such papers have been registered, and requesting him to send or produce the duplicate certificate in order that memorandum of the attachment or other lien or adverse claim may be made thereon If the owner neglects or refuses to comply within a reasonable time, the Register of Deeds shall report the matter to the court, and the court, after notice, shall enter an order to the owner to surrender his certificate at a time and place to be named therein, and may enforce the order by suitable process. It is for the court and not for the

Administrator of Land Registration Authority to compel the surrender. Entry of attachment in day book; sufficiency 

While the effect of registration retroacts as of the date of the entry in the day book of the Register of Deeds ,

registration is not considered accomplished until and unless a memorandum of such document has been made on the corresponding certificate of title. To hold that the

(2) Garnishment — is an attachment by means of which plaintiff seeks to subject to his claim property of the defendant in the hands of a third person called the garnishee, as well as money owed by such third person to defendant. Garnishment proceedings are usually directed to personal property (3) levy on execution — is the attachment issued after the final judgment in satisfaction thereof. Registration of attachments and other liens

In every case where an a ttachment or other lien or adverse claim of any description is registered, and the duplicate

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mere entry of a do cument in the day book without noting it on the certificate of title, is sufficient, Section 54 of P.D. No. 1529 nugatory and destroy one of the principal features of Torrens system of registration, requiring that all encumbrances on the land or special estates therein be shown or at least intimated upon the certificate of title. In involuntary registration, such as an attachment, levy upon execution, lis pendens and the like, entry thereof in the day book is a sufficient notice to all persons of such adverse claim.

XVI REGISTRATION of “LIS PENDENS,” JUDGMENTS, PARTITIONS, ETC.

“Lis pendens,” meaning 

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Lis pendens is the Latin term for pending suit or litigation. It indicates the control which a court has, during the pendency of an action, over the property involved therein. A property object of a lis pendens may still be sold, except that the purchaser who takes it does so subject to the fi nal outcome of the pending suit. PURPOSE: keep subject matter within the power of the court until the entry of final judgment.Therefore creates merely a contingency & not a liens




Registration of “lis pendens.’’ 

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In registering a notice of lis pendens, the requirements of both Section 79 of Act No. 496 (now Sec. 76, P.D. No. 1529) and Section 14 Rule 14, of the Rules of Court, should be taken into account together, as the latter not only supplements but also clarifies some points in the former. For instance, it will be noted that not only the plaintiff may file a notice of lis pendens, but even the defendant when affirmative relief is claimed in his answer. Furthermore, the annotation of a notice of lis pendens on a certificate of title, by virtue of guardianship proceedings to declare the person whose name appears thereon as owner incompetent to dispose of her properties, is proper, notwithstanding the absence of such proceedings among the listed cases wherein lis pendens may be annotated. For the protection of the claimant, the appropriate step is to have the proper annotation of lis pendens entered.

Purchaser “pendente lite” not considered purchaser in good faith A purchaser of registered land who takes a certificate of title for value and in good faith holds an indefeasible title to the land. But a purchaser who buys registered land with full notice of the fact that it is in litigation between the vendor and a third party is not a purchaser in good faith within the meaning of Section 39 of the Land Registration Act, but stands in the shoes of his vendor and his title is subject to the incidents and result of the pending litigation; and his transfer certificate of title will, in that respect, afford him no special protection.

Doctrine of “lis pendens” not applicable to certain cases 

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What constitutes constructive notice When the notice of lis pendens filed in the Offi ce of the Register of Deeds has been annotated on the back of the original copy of the corresponding certifi cate of title, it is deemed sufficient to constitute constructive notice to purchasers or other persons subsequently dealing with the same property. Thus, it was held that a notice of lis pendens is an involuntary transaction, entry of which in the day book of the Register of Deeds being sufficient notice of the claim, without need of its annotation on the back of the owner’s duplicate certificate of title

Object of doctrine The object of the doctrine of lis pendens is chiefly to keep the subject matter of the litigation within the power of the court until the entry of final judgment, so as to prevent the defeat of the latter by subsequent alienation.

Cancellation of “lis pendens” during pendency of action 

Effect of “lis pendens” upon future transactions 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. Upon the termination of the litigation there can be no risk of losing the property or any part thereof as a result of any conveyance of the land or any encumbrance that may be made thereon posterior to the filing of the notice of lis pend ens. In case of subsequent sale or transfer, Register of Deeds duty bound to carry over notice of lis pendens on all new titles to be issued

By express provision of law , the doctrine of lis pendens does not apply to attachments, levies of execution, or to proceedings for the probate of wills, or for administration of the estate of deceased persons in the Court of First Instance. It is essential that the property be directly affected, as where the relief sought in the action or suit includes the recovery of possession, or the enforcement of a lien, or an adjudication between confl icting claims of title, possession, or right of possession to specifi c property, or requiring its transfer or sale.

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Before final judgment – court may order cancellation after showing that notice I sonly for purpose of molesting an adverse party or it is not necessary to protect rights of party who caused it to b e registered Register of Deeds may also cancel by verified petition of party who caused such registration Deemed cancelled when certificate of clerk of court stating manner of disposal of proceeding is registered

How “lis pendens” may be discharged 

At any time after final judgment or decree in favor of the defendant or any other party against whom the lis pendens was registered, or other disposition of the action such as to terminate finally all rights of the




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plaintiff, or the person at whose instance it was registered, in and to the land and buildings involved, in any case in which a memorandum has been previously registered, a certificate of the clerk of court in which the action or proceeding was pending, stating the manner: of disposal thereof, shall be suffi cient for registration to cancel or discharge the lis pendens The doctrine of lis pendens is founded upon reasons of public policy and necessity, the purpose of which is to keep the properties in litigation within “the power of the court until the litigation is over, and to prevent the defeat of the judgment or decree by subsequent alienation. This purpose would be rendered meaningless if a party is allowed to file a bond, regardless of the amount, in substitution of said notice. However, it was held that an order directing the cancellation of lis pendens should be set aside: (1) If it was granted ex parte; (2) If the order dismissing the complaint has not yet become final, for in that case it may open the floodgates to the commission of fraud; or (3) If there is no showing that the notice of lis pendens is only for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to b e registered. Notice to the party who caused the lis pendens to be recorded is essential so that he may be given a chance to be heard and show to the court that such notice of lis pendens is not for the purpose of molesting the adverse party and that it is necessary to protect his rights.

When “lis pendens’’ may be continued 

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Although a notice of lis pendens has been registered and accordingly annotated on a certificate of title subsequent to a mortgage lien, where the validity of the mortgage itself is raised in issue in the pending litigation, the preservation of the superior right established under such a pre-existing mortgage as against subsequent transferees or other encumbrancers will be d ependent upon the final result of said pending litigation. The notice of lis pendens may be continued until the pending case is dismissed or otherwise disposed of against the party at whose instance the doctrine was invoked. Another instance that may justify the continuance of a notice of lis pendens is where the party seeking its cancellation relies upon an earlier tran saction involving the same property but which was not registered.

Lis pendens; Pencil markings are not an accepted form of annotating a notice of lis pendens Pencil markings, which even petitioner admits to be provisional, are not an accepted form of annotating a notice of lis pendens. The Court cannot accept the argument that such pencil annotation can be considered as a valid annotation of notice of lis pendens, and thus an effective notice to the whole world as to the status of the title of the land. The law requires proper annotations, not “provisional” annotation of a notice of lis pendens.

Reason for adoption of the Torrens System The Torrens System was adopted in this country because it was believed to be the most effective measure to guarantee the integrity of land titles and to protect their indefeasibility once the claim of ownership is established and recognized.

Registration of final decree of partition In all proceedings for partition of registered land, after the entry of the final judgment or decree of partition and the filing of the report of the committee or commissioners and final judgment thereon, a copy of the final judgment or decree, certified by the clerk of the court rendering the same, shall be filed and registered; and, thereupon, in case the land is set off to the owners in severally, any owner shall be entitled to have his certificate entered to the share set off to him in severally, and to receive an owner’s duplicate thereof.

When partition of land or buildings is subject to mortgage or lease When a certified copy of a judgment or decree making final partition of land or buildings is presented for registration, if a mortgage or lease affecting a specific portion or an undivided share of the premises had previously been registered, the mortgagee or tenant claiming under the mortgagor or lessor, shall cause the mortgage or lease and any duplicate certifi cate of title issued to the mortgagee or lessee to be again presented for registration, and the Register of Deeds shall endorse on each the memorandum of such partition, with a description of the land set off in severally on which such mortgage or lease remains in force.

Assignee in bankruptcy proceedings entitled to new certificate The assignee or trustee appointed by the court having jurisdiction thereof in such proceedings shall b e entitled to the entry of a new certificate of registered land of the debtor upon presenting and filing a certified copy of the order appointing




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him such assignee or trustee, with the debtor’s duplicate certificate of title; the new certificate shall state that it is entered to him as assignee or trustee in insolvency or bankruptcy or other proceedings, as the case may be.

Title of assignee or trustee returned in case proceedings are vacated

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WHEN JUDICIAL PROCEEDING NOT NECESSARY 

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Whenever proceedings of the character named in Section 86, Act No. 496, against a registered owner, of which notice has been registered, are vacated by decree or judgment, a certified copy of the decree or judgment may be fi led and registered.  Duty of the officer serving notice to file copy of notice to Register of Deeds where the property of debtor lies  Assignee elected or appointed by court shall be entitled to entry of new certificate of registered land upon presentment of copy of assignment with bankrupt’s certificate of title (dup licate)  New certificate shall not that it is entered to him as assignee or trustee in insolvency proceedings

Registration of eminent domain. 



Whenever any land of a registered owner, or any right or interest therein, is taken eminent domain, Section 85 of P.D. No. 1529 requires the government or municipality or corporation or other authority exercising such right to file for registration in the proper province a description of the registered land so taken, giving the name of each owner thereof, referring by number and place of registration in the registration book to each certificate of title, and stating what right or interest in the land is taken, and for what purpose. Additional requirements: Copy of judgment file in Register of Deeds 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

TOPICS HERE WERE NOT DISCUSSED DURING CLASS ---Will use reviewer found online XVII TRANSMISSION BY DESCENT AND DEVISE WHEN OWNER OF PROPERTY DIES

–

testate or intestate,

Administrator shall file with Register of Deeds registration of property in his name to be vested with ownership as trustee so he can sell, etc, convey, etc Not necessary if already empowered in t he will

Heirs may partition estate immediately & no need to be burdened with cost/expenses of an administrator 1. In absence of debts 2. Heirs are all of legal age

PARTITION/SETTLEMENT OF ESTATE 1.

JUDICIAL a. After entry of final judgment of partition, copy certified by clerk of court to be filed with Register of Deeds b. Each owner to gave separate certificate of title (duplicate) c. If ordered to be sold, purchaser shall be entitled to a certificate of title entered in his name upon presentment of order confirming sale

2.

EXTRAJUDICIAL a. Decedent died intestate b. No debts c. Heirs are all of legal age, or minors represented by guardian  Heirs to execute public instrument to be filed with Register of Deeds  If disagree with each other, file in court ordinary action for partition  If there is only 1 heir, may adjudicate to himself entire estate via affidavit to be filed with Register of Deeds  If there is movables involved, bond to be filed equivalent to value of property as certified under oath by parties conditioned upon payment if any just claim which may be filed by creditor within 2 years after distribution  Publication in newspaper of general circulation for 3 weeks; not binding to those without not ice  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  Statute of frauds – do not operate because it is not a conveyance but a separation of property and designation of part which belongs to them

– “We are only as strong as we are united, as weak as we are divided.” -Dumbledore, Harry Potter and the goblet of fire-



WILLS AND LETTERS OF ADMINISTRATION 

Executor required to file with Register of Deeds a certified copy of his letters of administration or the will if there is a will in order that Register of Deeds may register upon certificate a memorandum with reference to file no & date of filing

COURT AUTHORITY NEEDED IN ORDER TO SELL 1. 2.

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

LOSS/DAMAGES SHOULD BE DUE TO THE FOLLOWING REASONS: 1. 2. 3. 4.

AGAINST WHOM ACTION IS FILED: 1.

XVIII: 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 act by 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 Register of Deeds based on assessed value of land – as contribution to assurance fund; if no assessment yet, sworn declaration of 2 disinterested persons subject to de termination by court. Money shall be under custody of the National treasurer; invest it until P+I aggregates to 500,000, excess shall be paid to the Assurance Fund; annual report of Treasurer to Secretary of Budget

Omission, mistake, misfeasance of Register of Deeds or clerk of court Registration of 3rd persons as owner Mistake, omission, misdescription in certificate of title, duplicate or entry in books Cancellation

2.

Action due to deprivation of land due to mistake, negligence, omission of Register of Deeds, etc – Register of Deeds and National Treasurer as defendants; Sol-Gen must appear Private persons involved – should a lso be impleaded

LIABILITY: 1. 2.

Satisfy claims from private persons first When unsatisfied – secondary liable is the National Treasurer who shall pay thru assurance fund; thereafter Government shall be subrogated to rights of plaintiff to go against 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 standing fund If fund is not sufficient, National Treasurer is authorized to make up for deficiency from other funds available to Treasury even if no t appropriated

WHERE AND WHEN TO FILE ACTION AGAINST ASSURANCE WHO IS ENTITLED:

FUND:

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 negligence attributable to him 3. Claimant is barred from 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. 2.

Breach of trust Mistake in resurvey resulting in expansion of area in certificate of title

1. 2. 3.

Any court of competent jurisdiction – RTC in city where property lies or resident of plaintiff Action prescribes in 6 years from time plaintiff actually suffered loss If plaintiff is minor, insane or imprisoned – has additional 2 years after disability is removed to file action notwithstanding expiration of regular period

XIX PETITIONS AND MOTIONS AFTER ORIGINAL REGISTRATION 1. LOST DUPLICATE CERTIFICATE  Sworn statement that certificate is lost to be filed by person in interest with Register of Deeds  Petition to court for issuance of new title






After notice and hearing – court to order issuance of new title with memorandum that it is issued in place of lost certificate (duplicate)  If false statement: complex crime of estafa thru falsification of public document

2.

ADVERSE CLAIM IN REGISTERED LAND  Whoever claims a better right or interest in a land adverse to the registered owner shall make written statement alleging his right, how and when acquired 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 registered by same claimant 1. Adverse to registered owner 2. Arises after original registration 3. Cannot be registered under provisions of land registration act  To be made on original certificate, to the duplicate is not necessary because no access  Contracts of lease, contract to sell but p rescription and money claims are not allowed  Purpose: measure designed to protect the interest of a person over a property where registration is not provided for by the land registration act; serve as notice and warning to persons subsequently dealing on said land  Different with lis pendens: permanent; can only be removed after hearing is done but adverse claim is only for 30 days: lis pendens – notice that property is 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  Involuntary and involuntary conveyances – when duplicate cannot be produced, petition in court may be filed to compel surrender of certificate of title duplicate to Register of D eeds  After hearing, may order issuance of new certificate and annul the old certificate; new o

certificate shall contain annulment of old certificate

annotation

re

4. AMENDMENT AND ALTERATION OF CERTIFICATE OF TITLE  A certificate of title cannot be altered, amended except in direct proceeding in court; summary proceeding  Entries in registration books also not allowed to be altered except by order of the court  Grounds: 1. New interest not appearing on the instrument have been created 2. Interest have terminated or ceased 3. Omission or error was made in entering certificate 4. Name of person on certificate has been changed 5. Registered owner has married 6. Marriage has terminated 7. Corporation which owner registered land has d issolved and has not conveyed the property within 3 years after its dissolution 

1. 2. 3.

5.

What corrections are permitted in title (which does not include lands included 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) Alteration which do not impair rights and Alteration which impair rights – with consent of all parties Alterations to correct obvious mistakes

RECONSTITUTION OF ORIGINAL CERTIFICATE OF TILE  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 cons issues and on main entrance of municipality at least 30 days before hearing  In rem proceedings  Court to order reconstitution if it de emed fit; issue order to Register of Deeds  Lack of essential data fatal 6.

TRANSACTION EVIDENCED BY LOST DOCUMENT – HOW REGISTERED  Register of Deeds forbidden to effect registration of lost or destroyed documents  Steps by interested parties: 1. Procure authenticated copy of lost or




destroyed instrument

4.

2. Secure an order from court

XX FEES, OFFENSES, PENALTIES In connection with original and subsequent registration of lands – payable to Clerk of court, Register of Deeds, 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. 2. 3.

4.

5.

Larceny Perjury – false statement under oath Fraudulent procurement of certificate: fine of not more than 10,000 or imprisonment of 5 years or both in discretion of court Forgery: fine of no t more than 10,000 or imprisonment of 10 years or both in d iscretion of court a. Forging of seal in Register of Deeds, name, signature or handwriting of any officer of court of Register of Deeds b. Fraudulent stamping or assistance in stamping c. Forging of handwriting, signature of persons authorized to sign d. Use of any document which an impression of the seal of the Register of Deeds is fo rged Fraudulent sale: sale of mortgaged property under the misrepresentation that it is 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

XXI REGISTRATION OF PUBLIC LANDS PUBLIC LANDS

–

all lands owned by the government  Inalienable and alienable  Inalienable – public domain: timber and miner lands  Alienable/ Disposable - public agricultural land

5. 6.

NATURE OF TITLE TO PUBLIC LANDS CONVEYED: INDEFEASIBLE AND CONCLUSIVE 

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

CLASSIFICATION OF LAND OF PUBLIC DOMAIN: o

o

1. 2. 3. 4.

2. 3.

Official issuing instrument of conveyance to issue instrument File instrument with Register of Deeds Instrument to be entered in books and owner’s duplicate to be issued

Agricultural – only one subject to alienation Forest or timber Mineral lands National park

UNDER THE PUBLIC LAND ACT: 1.

PERSON.

1.

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 do ctrine)

UNDER THE CONSTITUTION:

PUBLIC LAND MAY BE ALIENATED, CONVEYED TO PRIVATE

PROCEDURE:

Instrument – only contract between Government and private person and does not take effect as conveyance if unregistered, it is registration which is operative act of conveying land; evidence of authority for Register of Deeds to register Fees to be paid by grantee After issuance of certificate of title, land is deemed registered land within the purview of the Torrens system

2. 3.

Alienable/disposablea. a. Agricultural b. Residential, commercial, industrialc. c. Educational, charitable d. Town sites and for public and quasi-public uses Timber lands – inalienable 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 long time, will not ripen into ownership




c. 

Except: mineral lands and forest lands acquired before inauguration of Commonwealth in November 15, 1935; vested rights which are p rotected

FISHPONDS

MAX LAND THAT CAN BE APPLIED: 144 hectares 





Before: included in definition of agriculture, conversion of agricultural land to fishponds does not change character of land  Now: restricted meaning; fishponds has distinct category; cannot be alienated but may be leased from government.



Quasi-judicial officer  Findings of fact conclusive on higher court with absence of fraud, mistake other than error of judgment; but not with regards to finding of law  Empowered to alienate and d ispose lands

MODES OF ALIENATING PUBLIC LANDS: 1. 2. 3.

Homestead settlement Sale Confirmation of imperfect or incomplete title a. Judicial legalization b. Administrative legalization

o

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

PERSONS COMPETENT TO QUESTION LAND GRANT 

Persons who obtained title from State or thru persons who obtained title from State

WHEN IS GOVERNMENT GRANT DEEMED ACQUIRED BY OPERATION OF LAW: 1. 2. 3.

Last extension granted by Government was until December 31, 1987 Right made available to person qualified to acquire alienable and disposable public 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 they have occupied since their application b. In OCEN possession since June 12, 1945 or earlier

Deed of conveyance issued by government patent/grant Registered with Register of Deeds – mandatory: operative act to convey & transfer title 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 ind efeasible

TITLE ISSUED PURSUANT TO REGISTRATION OF PATENT 1. 2.

CONFIRMATION OF IMPERFECT TITLE:

2.

In case of foreigner, sufficient that he is already Filipino citizen at the time of h is application Corporation who has less 60% Filipino ownership cannot apply confirmation of imperfect title; can only lease

PATENT

DIRECTOR OF LANDS

1.

Members of cultural minorities in OCEN who has claim of ownership for at least 30 years



Indefeasible – when registered, deemed incorporated with Torrens system; 1 year after issuance of patent May not be opened one year after entry by Land Registration Authority; otherwise, confusion, uncertainty & confusion on government system, of distribution of public lands may arise & this must be avoided a. Except: 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 even without ordering cancellation of title

AIM OF HOMESTEAD PATENT: 

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

NATURE OF PROCEEDINGS:  

RESTRICTIONS: 1. 2. 3. 4.



Cannot be alienated within 5 years after approval of application for patent Cannot be liable for satisfaction of debt within 5 years after approval of patent application Subject to repurchase of heirs within 5 years after alienation when allowed already No corporation, partnership, association may acquire unless solely for commercial, industrial, educational, religious or charitable purpose or right of way subject to consent of grantee & approval of Secretary of Natural resources

PROCEDURE: 1.



Action for partition because it is not a conveyance Alienations or encumbrances made in favor of the government

2.

ERRED HOMESTEADER NOT BARRED BY PARI DELICTO   

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

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 is written Otherwise, not valid unless approved by Commission on National Integration Safeguard is to prote ct them against fraud/deceit

XXII CADASTRAL REGISTRATION PROCEEDINGS PURPOSE: 





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.

HOMESTEADER 

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 public of day of survey – published in OG and posted in conspicuous place on lands to be surveyed  Geodetic engineers commences survey  During survey, boundaries are marked by monuments 

EXCEPTIONS: 

In rem No defendant & no plaintiff Compulsory

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

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 con spicuous place designated bylaw 4. FILING OF ANSWER  Any person claiming interest in any part of lands subject to petition is required to file ans wer  Answer must give the ff details: i.Age of claimant ii.Cadastral number of lot claimed iii.Name of barrio or municipality where lot is located iv.Name of owners of adjoining lots v.If in possession & without grant – no of years in possession vi.If not in possession – state interest claimed vii.If assessed of taxation – as sessed value viii.Any encumbrances affecting said lots 5. HEARING OF CASE  In any convenient place where land lies  Like an ordinary RTC trial  Conflicting claims are d etermined  Lots claimed are awarded to persons entitles i. if they could prove title 




ii. 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  Decree are now being directly prepared and issued on regulation forms of such certificate NATURE OF TITLE COVERED BY 2 ACTS:

WHEN CAN CADASTRAL PROCEEDINGS MAY BE OPENED o o

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



Title in good faith & for value Errors in plan does not annul decree of registration  Cancellation & correction is permitted LAND ALREADY REGISTERED

10 years up to Dec 31, 1968 Unable to file their claim even while in possession granted right to petition for reopening of proceedings provided such were not alienated, leased or disposed by government

Provisions of land registration a ct applicable to cadastral proceedings





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 is prohibited is registered land to be registered again in name of another  Jurisdiction subsist to all incidental matters CADASTRAL PROCEEDING COMPARED TO ORDINARY

REGISTRATION Party Initiating

CADASTRAL

ORDINARY

Government

Private

Private

and

 

 

System of registration for unregistered land under the Torrens System (ACT 3344) Before: covers voluntary dealings, now includes involuntary dealings Effect if prospective; binds 3rd pe rsons after registration but yields to better rights of 3rd pe rson prior to registration (limited effect to 3rd parties) Reason: no strict investigation involved Subsequent dealings – also valid if recorded Register of Deeds keeps day book & a register; index system is also kept



Procedure:

Private Lands

a.

Public Ownership





Individual Subject Matter

XXIII SYSTEM OF REGISTRATION FOR UNREGISTERED LANDS

Government

Ownership

does not assert

asserted

is

ownership

b. c.

Presentment of instrument dealing in unregistered land If found in order – registered If found defective – registration is refused writing his reason for refusal

Interested only in settlement

of

titles Survey

Government

On account of

undertakes

Owner

survey andadvances expenses As to risk

In absence of

Applicant

successful

another chance

claimant,

to

property

goes

to government

dismissal

has claim is

withoutprejudice




FREQUENTLY ASKED QUESTIONS DURING CLASS +QUIZZES 1.

2.

Torrens system -system of registration developed by sir Robert t orrens, quiets the titles, relieves the land of unknown liens and claims What is quieting of title -put a stop forever to any question of legality of the registration

7.

8.

9.

Assurance Fund - compensation of such persons as may be injured by the divesting and cutting off of rights and interests under this statutory declaration. Systems of Registration -spanish mortgage law -Torrens -system of recording for un registered lands What is C adastral Proceeding -initiated by the government -in the absence of claimants, land goes to gov

3.

Proceeding in Torrens -in rem

4.

Assurance of quieting of title -assurance fund

10. Is Cadastral Proceeding mandatory? What kind? -yes; in rem

5.

Ruling of Court in Massachusetts v Merchant v La Fuente In Massachusetts, the land registration act was also attacked on constitutional grounds, namely, that it provided for a diversion of judicial power and that in its operation there was lack of provision for due process, but here again it was held to be constitutional.

11. Carino v Insular -nat res besh regalian doctrine

In the Philippines, the constitutionality of our registration law was questioned on the ground that it deprived a person of his property without due process of law by merely failing to register his right or title in accordance with the prescribed system. Now, however, it is definitely settled that the legislative branch of the government has the power to provide a system for recording or registration of land titles. Of course, it has no power to dispose of a man’s property without due process of law, but it does have power to provide for a system or procedure to register title to land, and to declare that if the owner of the property does not record his title papers, and by reason of such failure a third person, relying upon the records, acquires interest in the land adverse to the negligent owner, the right of such innocent third person shall be upheld as against that of the other who slum- bered upon his right.21 The state, as sovereign over the land situated within it, may provide for the adjudication of title in a proceeding in rem, which shall be binding upon all persons known or unknown.

6.

Proceeding in rem v in personam -in rem—personal notice not required; -in personam- required

12. Regalian Doctrine -all lands belong to the state 13. Accretion/ Alluvium/ Accession -read paras for details 14. Modes of Acquiring Land Titles PAARVIDE -Public Grant -adverse possession -accretion -reclamation -voluntary transfer -involuntary transfer -descent or devise -emancipation 15. Who can apply for original registration?

OPAA -Open, continuous… - precsription -accession - accretion -any other manner 16. What kinds of lands are subject to this? -Alienable and Disposable 17. Original v Subsequent Registration -orig- Original Cert of Title (OCT) -Sub- Transfer Cert of T itle (TCT) Condo--- CTC Condo Cert of Title (-.-)




18. Kinds of prescription -ordinary gf 10 yrs -extraordinary bf 30 yrs

35. Registration v Recording -reg- guarantees title - rec- guarantees

19. June 12, 1945 -unsa naa ani na date??

36. Are you required to go behind the title - no 37. Why Torrens is a stable system -assurance fund

20. Why Register land -to quiet the title 21. Who are riparian owners -Article 457

38. Police Power -general welfare (merchant case) 40. Issuance of the decree—reckoning period

22. Can the seller be at 2 places at the same time -yes. Contract of agency 23. Addison case The court has held that a fraudulent or forged document of sale may give rise to a valid title if the certificate of title has already been transferred from the name of the true owner to the name indicated by the forger and while it remained as such, the land was subsequently sold to an innocent purchaser. 24. What are the dealings of ownership -voluntary and involuntary 25. What is land title - evidence of right of owner or extent of his interest, by which means he can maintain control and as a rule assert right to exclusive po ssession and enjoyment of property 26. Deeds - instrument in writing 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 equity 27. Definition of contract -meeting of the minds whereby one binds himself to give something or to render some service

Quizzes: 1. Is land title, the same, similar, or different from deeds Different (check previous numbers) 2.

Is possession, the same, similar, or different from ownership Different. Possession is the holding of a thing and enjoyment of the rights of an owner. Right to possess and right to fruits only Ownership—bundle of right

3.

Distinguish title from color of title -color of title murag title

4.

Is quasi in rem, similar or different from in rem proceedings -quasi—binds the parties -in rem-the whole world

5.

Is title the same, similar, or different from muniments of title -muniments-attachments

6.

Distinguish general default from special default -a general default may be ordered by the court if no person appears and answers within the time prescribed. -Where a party appears at the initial hearing without having filed an answer or opposition and asks the court for time within which to file the same, and this has accordingly been granted, in case of failure of such party to fi le his answer or opposition within the period allowed, he may be declared specially in default .

28. Instance where an oral deed of sale is valid -partial execution 29. Is color of title same a s title -no, color of title gives the appearance of one b ut falls short of title in the legal sense. 30. Property subject to registration in RD -real property and real rights (immovable under Art 415) 34. What is the purpose of registration - constructive notice

7.

Is the decree of registration the same as judgment -decree-issued by LRA -judgment—court ????


I. Background, Basic Concept And General Principles: Land title refers to that upon which ownership is based. It is the

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