A Better Consult

Underage/Lack of Parental Consent Annulment in the Philippines

Vergel — Mon, 09 Oct 2023 04:17:21 +0000

A Filipino must be 18 years old to marry.

If you marry before reaching this a

In the eyes of the law, those below 18 are not yet ready to marry.

ge, your union is void.

If you marry between 18 to 21, you must get your parent’s permission before the Local Civil Registrar (LCR) can give you a Marriage License and submit proof of this consent.

Parental consent or a notarized Affidavit of Parental Consent is required if you are planning to marry when you are between 18 and 21 years old. In its absence, the marriage is still valid unless ended in 5 years.

For both situations, you will still have to file a court case called Annulment BEFORE you can remarry.

What is the cost for filing an annulment

The cost may go up depending on several factors such as location of the court, a hostile ex-spouse and the assigned newspaper publisher.

The cost for filing an annulment is at least Php 350,000 and up though this can increase or decrease depending on the location, the grounds and the situation.

Annulments will have the below fees:

· Lawyer’s fees

· Document fees for photocopying, notarization, service to respondents

· Court fees such as filing fees, service fees

· Publication, depending on the situation

· Cost to get evidence

· Psychologist, if needed

So many clients ask us why annulment is so expensive in the Philippines.

It is because the Philippines requires a full blown court case with a trial, witnesses, a collusion investigation, and witnesses.

It is because of all these hearings and all the requirements that must be submitted that the cost is so much more expensive than in other countries.

Even if divorce passes in the Philippines, the cost would not significantly change unless they remove the requirement for a full court case and make evidence standards lower.

Why are annulments denied?

A denied annulment cannot be filed again on the same ground.

Annulments can be denied on several grounds.

To have a successful annulment in the Philippines, you need to do the following to avoid common errors:

· Choose a good lawyer

A good lawyer is responsible for case strategy and complying with court rules. A case can be lost for non-compliance with the court rules or for the wrong legal advice given. Because a good annulment takes time to do well, choose a lawyer who is responsible and sincere and pay him correctly.

· Have strong evidence

If you are filing for annulment for being underage or an annulment without parental consent, you need to get strong evidence to prove that you were underage. A lawyer might suggest getting documents from the LCR. A lawyer might also tell you to add psychological incapacity as a ground if the evidence is weak. (Please see the requirements section for more details).

Government issued documents like PSA documents are valued more than a witness testimony.

The reason that you have to do a good job the first time is that annulment can only be filed ONCE.

If the annulment is denied on its grounds, you WON’T BE ABLE TO FILE THE ANNULMENT AGAIN and you will remain married.

If you remain married, then your spouse will always have a claim on your properties. He will also inherit from you. So, it is really, really best to end the marriage legally.

(Please note a kasulatan or contract WILL NOT end the marriage. Only a court case will end the marriage.)

What are the requirements to file an Underage Annulment/Lack of Parental Consent Annulment?

The petition paper is the main instrument of the case that has all the necessary information and allegations on the case

An annulment when you were married below 18 or if you married without your parents’ consent requires strong evidence so that the case can be successful.

The requirements to have a successful annulment are the following:

· Marriage Certificate

· Birth Certificates of the spouses

· The LCR marriage license application showing that there was no Affidavit of Parental Consent or a lack of a valid written document giving consent

· Proof of falsification, if there was some falsification that allowed the marriage despite you being below 18 when you married or falsification of the Affidavit of Parental Consent

· Other Supporting Documents that shows Your Age such as School Records, Baptismal Certificates, Hospital Records, Valid Government IDs, Bank Documents, Dated Photos and Witness Testimonies

The first 3 requirements are fairly straightforward.

You need the marriage certificate since your case is about ending your marriage.

Nothing beats a birth certificate in proving your age.

You need the birth certificates of the spouses since your ground is the age you were when you married.

You need the marriage license application so that the lawyer can check to see if it was missing the Affidavit of Parental Consent before you married and to check how you were able to marry if you were not the right age/did not have the correct requirements.

The fact that you were given a marriage license and married below 18 years old or that you married without parental consent sometimes means that there was a “fixer” or falsification of some documents.

If that was the case, then the evidence that would be required is more.

You will need to discuss with a Family Lawyer what this evidence is required; sometimes if the evidence is weak or might be bad for you, he might advise you to change your ground and use psychological incapacity instead.

(This is why you might need a psychologist even in a case using this ground. Remember, you only have ONE CHANCE to file this case, so it is better to spend correctly on it and get good counsel.)

Who can file an Underage Annulment or Annulment for Lack of Parental Consent?

A parent or guardian can also file an annulment of their children under certain circumstances

You can file for annulment if you were married below 18 years or if you are filing due to lack of parental consent.

Your parent or guardian can also file for Annulment if the case to be filed is Annulment for lack of parental consent.

As you can see, parents and guardians can also file for annulment for lack of parental consent if that is the ground to be used.

When can I file for Annulment for Lack of Parental Consent or for Underage Annulment?

There is a prescribed period in filing an annulment for lack of parental consent

An Annulment if you married below 18, can be filed at any time.

However, an annulment based on lack of parental consent can only be filed 5 years after reaching 21.

If you are not able to file an annulment in that time period, you can no longer use this ground to end the marriage.

What is the process to file for Annulment?

Gathering your documentary evidence is a lot harder than drafting the petition

The process for filing for Annulment based on being underage or lacking parental consent is very similar with other Annulments.

· Hire a lawyer

· Gather documents and evidence required

· Finish the test for psychological incapacity, if you need a psychologist

· File the case

· Collusion Hearing

· Trial with presentation of evidence and witnesses

· Formal Offer

· Decision

How long does an Annulment take?

It may take some time for an annulment to be completed

An annulment can take 3 years from filing to decision.

Yes, that is a long time.

These are the factors that make an annulment take longer:

Lack of evidence
Courts are very slow since they are so overworked and hearings can be months apart
PH law requirement for a full trial

Philippine annulment law requires a full trial.

Not only does it affect cost (which I mentioned above) but it also affects the timeline.

A full trial takes time because of the number of hearings required and how much evidence the court requires that you present.

That takes time and work on the lawyer’s side, since the evidence that is needed is very extensive.

Furthermore, the court wants documentary evidence from PH institutions.

The court puts more weigh on government issued documents so be careful not to submit a falsified one

The court prefers evidence from the Local Civil Register or from other Philippine institutions.

The court puts very low value on things like witness testimony, pictures and photos that don’t also have other documentary evidence to support it.

In addition, the courts are very overworked.

They often take in four times the amount of work that they should, so hearings are far apart and even getting information from the court is often very, very hard to do.

How do I win my Annulment case?

To ensure success, be 100% honest with your lawyer

A good case always starts with a strong lawyer.

The lawyer will take a look at your case and your exact situation and give you advice on what you should do (if there is falsification, he might ask you to consider another ground since falsification leads to jail time for the person responding to).

Your family lawyer’s experience is also important – you need to get a lawyer who actually has experience in family law so that he can give you the correct advice.

You will also need a lawyer who can give you his time (please note that you have to compensate him correctly, good lawyers have options and without good compensation, he might not be able to give your case enough time.

Be smart about who you choose.

Work with someone you trust and who is sincere – even if more expensive, it is cheaper than refiling the case again.

The post Underage/Lack of Parental Consent Annulment in the Philippines appeared first on A Better Consult.

Can I get an annulment if I was married without a marriage license?

Vergel — Thu, 10 Aug 2023 02:15:22 +0000

Yes, you can get an annulment if you were married without a marriage license.

In some cases, people have been able to marry without a marriage license.

Those marriages are void but need to go through annulment for it to be ended.

In other case, people marry using an Affidavit of Cohabitation instead of a marriage license.

If your Affidavit of Cohabitation has a serious error, you can use that as a ground to end the marriage.

However, even in this case, you will still need to go through the annulment process in order to legally end the marriage and obtain a CENOMAR or a Certificate of No Marriage.

What is a marriage license?

A marriage license must show all the important personal information of the applicants

A marriage license is a document that allows two people to get married in the Philippines.

It is proof that the couple has met the legal requirements to get married, such as being of age and with no legal impediment.

The marriage license is valid for 120 days from the date of issuance and must be obtained before the wedding ceremony.

The marriage license includes the following information:

1. The names of the bride and groom

2. Their ages and birth dates

3. Their complete addresses

4. Their gender and citizenship

5. The place where the marriage will take place

6. The marriage license number

What documents do I need to prove the issue with my marriage license?

You can try and request a certified copy of the marriage license using the marriage license number in your marriage certificate to check it’s authenticity

If your situation is that you married without a marriage license, then your marriage is void.

If the marriage license is actually for another couple, if it is a fake license number, or if it was issued after the ceremony or was expired, your marriage is also void.

(However please note that typo errors on your marriage license do not make your marriage void.)

If you have any of the above issues, you will need to prove it so that it can be used in an Annulment case.

You can do the following to prove that you had no marriage license or that there was an issue with it:

· Check your marriage certificate. If you need a copy, you can get one from the PSA or from the Local Registrar’s Office (LCR) where you got married.

Look at your license. If you cannot see a marriage license number, this means there was no marriage license submitted when you got married. You will need to request for a certification from the Local Civil Registrar (LCR) that there is no record of your marriage license.

· If there is a marriage license number, call or visit the LCR and ask for the marriage license file with that number.

The license number should be registered under your names – if not, then these LCR documents can be used to prove that the marriage license was not valid.

· Check when the marriage license was issued then check when the expiration date should have been.

If you were married after the license expired, your marriage is not valid.

Also, your marriage is not valid if your license was issued after your marriage.

You can ask for help with the Officer of The Day of the Local Civil Registrar to verify your marriage documents

Some people ask if a license is valid if a fixer was the one who applied for the license, or if you didn’t attend the marriage seminar at the LCR.

Yes, your marriage is still considered valid even if the marriage license was infirm.

Gather the following documents as proof of your investigation:

1. A copy of the marriage certificate

2. A copy of the marriage license

3. A certified true copy of the Local Civil Registrar’s records

4. Other supporting documents from the Local Civil Registrar

You should consult with an attorney to discuss your specific case.

There may be other proof needed depending on the exact error and your situation.

What is an Affidavit of Cohabitation?

Many Filipino couples now favor common-law partnerships and living together according to the Philippine Statistics Authority study

An Affidavit of Cohabitation is a document saying that two people have been living together for 5 years and that there was no impediment to their getting married.

(No impediment means that they were both of legal age when they started living together and neither of them was already married to someone else.)

The document also must be notarized for it to be recognized.

An Affidavit of Cohabitation can be used instead of a marriage license.

This Affidavit is submitted to the officer who will officiate your marriage such as a priest.

However, if the affidavit contains false information – for example, as one of the parties was already married or if they were not actually living together for 5 years – then the marriage based on the Affidavit of Cohabitation could be challenged and annulled.

To prove that your Affidavit of Cohabitation is invalid, you must provide proof of the invalidity.

You can choose to prove that there was a legal impediment to their being marriage.

Or, if the issue was that you lived together less than 5 years, you can prove this by showing that one of the parties was not in the country by getting Bureau of Immigration Travel records.

You should also ask for witness testimony to further strengthen the case.

It is important to note that falsifying an affidavit is a crime of perjury.

If caught, the person responsible for the false information may be charged criminally and jailed.

If this is the case, your family lawyer may suggest annulling the marriage on other grounds instead of using the fact that the Affidavit of Cohabitation had problems.

Your lawyer will list down documentary requirements that you will need to gather for the drafting of the petition

How do you file an Annulment?

To file an annulment due to an invalid marriage license or Affidavit of Cohabitation, you need to file a petition for declaration of nullity of marriage.

This is a court case that ends a marriage which is void from the beginning.

To file a declaration of nullity of marriage, you will need to hire a family lawyer.

The lawyer will review your case and help you gather the necessary documents.

The documents you will need to file the case include:

1. Your marriage certificate

2. Birth certificates of all children, if you have any

3. A duly notarized barangay certificate, which includes a sketch map of your residence

4. The complete address of your residence of the last 6 months before you filed for annulment. These can include government ID’s, utility bills, mail from banks, or a lease or land title

5. A list of witnesses who will testify during the hearing

6. The certification from the LCR that you were not issued a marriage license, or for the affidavit of cohabitation proof such as travel documents showing non-cohabitation from both ends

7. The proof that you gathered above

8. Witnesses

It is very important that you hire an expert annulment lawyer as an annulment denied on its grounds cannot be filed again and you remain married.

Once you have gathered the necessary documents, your lawyer will prepare and draft your petition.

Your lawyer will also speak to all the witnesses who will be testifying for you.

Before your lawyer submits the petition, he/she should show it to you so you can check all the details to make sure they are correct.

Your family lawyer will then file the petition for declaration of nullity of marriage with the court.

The court will then schedule a hearing to determine whether or not the marriage is void.

Before the hearing, the judge assigned to your case will have a prosecutor perform a collusion investigation to check if you and your spouse did not agree to the annulment and falsify the evidence of your circumstance.

You will also be scheduled to appear at the pre-trial. Absence from the pre-trial may lead to a dismissal so do not be absent for this.

After all the initial process is done, your trial will be scheduled.

You will need to appear in court for the hearing of your petition.

During the trial witnesses will be called and evidence presented. You may be asked to appear in court more than once. Like the pre-trial, non-attendance may get your case dismissed.

If the court finds that the marriage is void, it will issue a decree of nullity. This decree will end the marriage and allow you to get a CENOMAR, which is a certificate that shows that you are not married.

The process may seem very simple but it actually requires technical and procedural expertise in order to win the case

Things to remember when filing an annulment:

· The process of filing an annulment can take several years.

· The cost of filing an annulment can be significant.

· You will need to appear in court for the hearing.

· If you are considering filing an annulment, it is important to speak with a family lawyer to discuss your case and your options so that the strongest possible case is presented.

· Remember that an annulment denied on its grounds can never be filed again.

How long and how much will the annulment be?

Annulment cases usually take about 3 years.

The annulment process can take anywhere from 3 years or more.

The cost of an annulment can range from at least Php 350,000 and even higher if the annulment is contested.

Things that increase the cost are the psychologist’s cost, the judge’s and prosecutor’s understanding the law, a hostile ex-spouse and the inclusion of child and property issues (we really recommend removing child and property issues from the case to keep issues separate)

Unlike other countries, the Philippines requires a full blown trial to end a marriage.

This means court hearings and testimony.

It means the presentation of proof.

Other countries generally just require the submission of documents and an examination of them but because the Philippines has a long and drawn out trial and proof must be presented, costs are higher than ending a marriage abroad.

The expensive cost of annulment creates the belief that it is for celebrities only.

Here is a more detailed breakdown of the costs involved in an annulment:

1. Lawyer’s fee: The lawyer’s fee will vary depending on the lawyer’s experience and the complexity of the case. However, you can expect to pay anywhere from Php 250,000 at least for an annulment.

2. Research and compiling fees: The lawyer will need to research the law and gather evidence to support your case. This can involve hiring experts, such as psychologists or psychiatrists, to assess your spouse’s mental capacity. The cost of research and compiling fees can range from Php50,000 to Php100,000.

3. Filing fees: There are various fees involved in filing an annulment petition, such as court filing fees, publication fees, and sheriff’s fees. These fees can range from Php10,000 to Php50,000.

4. In total, you can expect to pay anywhere from Php 350,000 or more for an annulment. The actual cost will depend on the specific circumstances of your case.

Sometimes even travel cost is very expensive specially when the court is in a far away province.

People often ask if there are other, cheaper options.

No, not really.

Legal separation doesn’t end the marriage and is more expensive than annulment.

Annulment is the only case that removes the spouse as a compulsory heir, ends the marriage and also ends conjugal property at the same time (doing each of these things separately will cost you much, much more).

The post Can I get an annulment if I was married without a marriage license? appeared first on A Better Consult.

Reconstitution of Title (Steps, Requirements and costs for Administrative and Judicial processes)

Vergel — Fri, 06 Jan 2023 04:00:17 +0000

What is Reconstitution of Title?

There are several laws and guidelines on how to file for a reconstitution of a lost land title

Reconstitution of Title restores the Registry of Deed’s Title of the land when that title has been destroyed and can be done either judicially or administratively. (If you have lost your Original Owner’s Land Title, read our post on Reissuance of Title instead.)

· Judicial Reconstitution is used when Administrative Reconstitution is not possible

· Administrative Reconstitution is used when at least 10% of the RD’s were destroyed or lost due to fire, flood or force majeure but should be in no case less than 500. It is only available if the RD states your title is eligible for it

Note that Reconstitution of Title is very important to do –

Even if you have an Owner’s Certificate of Title, you should reconstitute the RD’s copy as it is the main document that proves your ownership.

The RD’s file of your document is the document that banks, buyers and other institutions will refer to when determining who owns the title.

Without the RD’s file confirming your ownership, your ownership can be questioned.

What is the law on Reconstitution of Title?

Filing for reconstitution is a manual process and requires a lot of effort

Reconstitution of Title is based on the following laws:

· RA 26 Reconstitution

· PD 1529 Property Registration Decree

· RA 6732 Administrative Reconstitution of Title

· LRA Circular 13 which further explains the Administrative Reconstitution of Title

1: Administrative Reconstitution of Title

Who can file an Administrative Reconstitution of Title?

Visit your registry of deeds and have them assess your documents

Administrative Reconstitution of title can be filed by the owner, his heirs, persons having an interesting claim or interest in the property or their authorized representatives.

Administrative Reconstitution can only be filed when the Registry of Deeds states that your title is available for administrative reconstitution.

If the Registry of Deeds does not list your property as available for Administrative Reconstitution, then you must file for Judicial Reconstitution of Title.

What are the requirements for an Administrative Reconstitution of Title?

Ask your registry of deeds for the list of requirements

The requirements for an Administrative Reconstitution of Title are the Original Owner’s Copy of Title, supporting documents from the City Assessor and an Affidavit of the owner.

In detail, these requirements are:

· Original Owner’s Copy of Title (not a photocopy)

· 3 copies of the LRA Petition for Reconstitution form

· 3 copies of the notarized Affidavit under LRA Circular 13

· 3 copies of the latest tax declaration and 3 copies of the tax clearance

· Other documents may be required such as an Extrajudicial Settlement, Deed of Absolute Sale, Deed of Donation, Cadastral map, PSA birth and death certificates, etc.

You might have noticed that Administrative Reconstitution only accepts an Original Owner’s Copy of Title.

Judicial Reconstitution vs Administrative Reconstitution accepts more documents as basis for the reconstitution.

If you do not have the Original Owner’s Copy of Title even if your land is eligible for Administrative Reconstitution of Title, you will have to go to court and must discuss with a Land Lawyer.

Where do I file for Administrative Reconstitution of Title?

There are several branches of the registry of deeds where a person can file for a Administrative Reconstitution case

Administrative Reconstitution of Title is filed at one of the below 14 authorized RDs:

· Quezon City

· Bulacan

· Valenzuela

· Meycauayan

· Batangas

· Camarines Sur

· Iriga

· Calapan, Oriental Mindoro

· Borongan, Eastern Samar

· Ilagan, Isabela

· Palo, Leyte

· La Union

· Pampanga

· Sultan Kudarat

What is the process for an Administrative Reconstitution of Title?

Ask a lawyer or a paralegal who knows how to process an administrative reconstitution

The process for an Administrative Reconstitution of Title is submission of documents at the RD, checking and forwarding technical information at the LRA, and then the order to reconstitute the title to the concerned RDs.

Administrative Reconstitution of Title process

· Client files requirements for Administrative Reconstitution of Title at the authorized RD. Note that there are only 14 currently authorized RDs.

· RD checks the petition and forwards it to the Reconstitution Division

· Reconstitution Division

o receives, logs, checks petition

o checks the technical description

o counterchecks with the Plan Division, Ordinary Decree Section, Cadastral Section and gets further information from other government agencies to ensure all the information is accurate

o Inaccuracies between these documents will cause delay.

· If assessment is complete and without issues, Reconstitution Division informs concerned RD of the Order to Reconstitute.

People often believe that judicial reconstitution vs administrative reconstitution is longer.

However, they can actually take about the same amount of time especially if there is conflicting data that needs to be resolved.

Expect the process to take at least a year.

What is the cost for Administrative Reconstitution of Title?

It is always cheaper to DIY but it will be difficult and risky if you don’t have proper guidance

Administrative Reconstitution of title costs are from gathering the required documents and filing the petition. There are no government fees.

2: Judicial Reconstitution of Title

Who can file for Judicial Reconstitution of Title?

Only a lawyer can help you draft a petition so find someone who is good in reconstitution cases

The owner, his heirs or a person who has an interest in the party such as a mortgagee who has loaned money against the property may file for a Reconstitution of Title.

What is the Judicial Reconstitution of Title requirements?

You may be required to appear in court as a witness but only lawyers are expected to appear in most hearings

Judicial Reconstitution of Title requirements can draw on the following sources:

Owner’s duplicate certificate of title
Co-owner, mortgagee’s, or lessee’s duplicate certificate of title
A Certified True Copy of the title from the RD
If a Transfer Certificate of Title is to be Reconstituted, the CTC deed of transfer filed in RD which was the basis for the lost certificate of title.
If an Original Certificate of Title is to be Reconstituted, the CTC patent or registration which was the basis for the lost certificate of title
A document by which the property is mortgaged, leased or encumbered filed at the RD
Any other document to prove a valid claim

Judicial Reconstitution vs Administrative Reconstitution thus allows for more documents.

Note that your land lawyer will need reliable documents so that the concerns of the court are met. Reliable documents are those that the court can trust – i.e. certified true copies of documents from reputable institutions.

Where do I file a Judicial Reconstitution of Title?

The petition must be filed and paid online first before submitting to RTC-OCC for case docketing

A Judicial Reconstitution of Title can be filed at the Regional Trial Court where the property is located.

What is the process for Judicial Reconstitution of Title?

A proper petition must comply with the court requirements to be accepted

The process for Judicial Reconstitution of Title is the submission of the petition at the RTC, the hearing, and then the release of the decision.

In full, the process is:

Gathering of the Judicial Reconstitution of title requirements and all documents
Land Lawyer creates Petition and attaches supporting documents
Land Lawyer completes publication at the Official Gazette and completes service of all interested parties
Jurisdictional Hearing
Presentation of Evidence with witness testimony
Formal offer
Filing of Decision
Registration of Decisions at concerned government agencies

Judicial reconstitution vs administrative reconstitution have very different processes and venues.

However, both are similar in terms of the time of completion from filing to a decision. Both take about a year.

What is the cost for Judicial Reconstitution of Title?

Sometimes, publication and service fees are what make the process costly

The cost for Judicial Reconstitution vs Administrative Reconstitution is higher due to the land lawyer’s fees, publication fees, service to respondents fees, document gathering fees, court fees and other fees.

If the petition is challenged, then costs will increase.

Costs vary depending on your land lawyer’s fees and the location of the property – but think of it as roughly one-half of the cost of annulment in that area.

FAQs on Reconstitution of Title

What is the effect if a title is reconstituted but in fact it is not lost?

A void land title is nothing but a scrap of paper.

If a title is reconstituted but is in fact not lost – for example, it is with a relative that refuses to give it back, then the new title can be declared void.

If this is your situation, talk to a Land Lawyer to discuss what your options are.

How long does it take to change the name on a Land Title?

The Philippine government is known for being bureaucratic so expect it to take some time.

Reconstitution cannot change a name on a Land Title as all reconstitution does is allow the lost certificate of title to be restored exactly as it was.

If you must correct a factual error on the Land Title, you should speak with a Land lawyer to see if you can amend your title.

How do I remove an adverse claim from my title?

Reconstitution does not affect and remove any encumbrances on a new land title

Reconstitution does not remove an adverse claim or an annotation on title as it just allows the title to be restored exactly as it was.

Talk to a lawyer to remove an adverse claim on the land title.

Can I do Administrative Reconstitution instead of Judicial Reconstitution?

Only the Registry of Deeds can say if your case is for administrative reconstitution otherwise, it must go to court

Administrative Reconstitution is only available if the RD states that your title is eligible for Administrative Reconstitution and if you have the Original Owner’s Copy of Tile.

Otherwise, you must do a Judicial Reconstitution of Title.

Can I use a photocopy of the Owner’s Original Copy of Title for Reconstitution?

It is okay to have a photocopy but you must have more supporting evidence to win a case

A photocopy of the Owner’s Original Copy of Title is very weak evidence.

An Administrative Reconstitution requires an Owner’s Original Copy of Title.

Judicial Reconstitution of Title requirements are a bit more flexible but if this is your only proof this is very risky.

Speak to a land lawyer if that is the situation.

What is the difference between Judicial Reconstitution vs Administrative Reconstitution?

Both administrative and judicial reconstitution require a lot of resources and patience.

There are several differences between Judicial Reconstitution vs Administrative Reconstitution.

Judicial reconstitution is:

A court case filed at the RTC
More expensive
Accepts more documents as source documents

By contrast, administrative reconstitution is filed at the RD, has minimal cost and only accepts the Original Owner’s True Copy of Title.

I know that it seems that the Administrative process should be faster.

However, Judicial Reconstitution vs Administrative Reconstitution takes about the same time from filing to Decision. (However, the court case will take longer if there is opposition. Likewise, the administrative case will be longer if there are conflicts in the information.)

The post Reconstitution of Title (Steps, Requirements and costs for Administrative and Judicial processes) appeared first on A Better Consult.

Lost Certificate of Title (Reissuance to get your title back)

Vergel — Fri, 06 Jan 2023 02:34:18 +0000

An Original Lost Certificate of title can only be reissued after a 1.5-year Reissuance of a Title court case in the Philippines.

A Reissuance of Title court case only applies when the title is completely lost, totally destroyed or has been stolen.

A newly issued Owner’s Copy of Title can be canceled if the old one is presented, so consult a Land Lawyer if you know where the title is but cannot get it back.

In this article, I’ll discuss common questions for a land title such as:

· Everything about an Affidavit of Loss (What is it, Requirements, Who makes it, etc.)

· Reissuance of Lost Land Title such as who files, where to file, what is the process and how much it cost

· FAQs, including selling and buying property without a Land Title

This article deals with what happens if there is a lost certificate of title or if the land title is destroyed.

Our other articles cover other situations regarding How title land in the Philippines is a great place to start to register unregistered land or to introduce you to how to transfer a land title to your name. For personal information, contact us to consult with a Land Lawyer.

What should I do if the Philippine land title is lost?

Many certificates of titles are lost due to unforeseen events like fires and floods.

If the Philippine Land Title is lost, file an Affidavit of Loss with the Registrar of Deeds and then file a Petition for reissuance of lost title at court to get a new Owner’s Copy of Title.

It’s important to replace the lost certificate of title as soon as you can because without it:

· You cannot title property in new owners’ or heirs’ names as the Registry of Deeds needs the Original Owner’s Certificate of Title

· You cannot mortgage it as reputable lenders like banks will require the Original Owner’s Certificate of Title

I’ll go over both the Affidavit of Loss and the Petition for Reissuance of Lost Title below.

Affidavit of Loss: Part 1 of the Process

What is an Affidavit of Loss?

City or Municipal Halls have legal departments that offer cheap notarization of your affidavit of loss.

An Affidavit of Loss of Title is a notarized document stating that the land title was lost, which must then be registered with the Registry of Deeds (RD) to inform the public and annotate the RD’s Copy.

What are the requirements for an Affidavit of Loss?

It will be helpful if you have a photocopy or digital copy of your lost certificate of title.

An Affidavit of Loss of Title has the following requirements:

· A notarized document signed by concerned parties, authenticated if the parties are abroad

· Contains details of the lost certificate of title and the circumstances under which it was lost

· Must be registered at the RD as this informs the RD and the public that there is a lost Certificate of Title and this protects your ownership.

Remember that an Affidavit of Loss must be registered at the RD.

This is important.

People who buy property will do the RD to do due diligence. At this point, they will be notified that there is a missing Land Title and this will deter them from buying from someone who may be defrauding them.

Who makes Affidavit of Loss?

DIY affidavits may not be as good and precise as those made by professionals. Ask a lawyer or a paralegal to help you with your affidavit.

An Affidavit of Loss may be made by the owner or someone on his behalf.

Petition for Reissuance of Lost Title: Part 2

What is a Petition for Reissuance of Lost Title?

Hire a professional and trustworthy lawyer for your case!

A petition for Reissuance of Lost title is a court case that requests the court to authorize the Registry of Deeds to issue a replacement Owner’s Title.

This reissued Owner’s title will be restored in its original form and condition.

Who can file a petition for Reissuance of Lost Title?

A petition must be duly signed by the lawyer and verified by the petitioner.

An owner, an heir, or an entity that has a financial interest in the property – for example, a bank to whom the property was mortgaged – may file a petition for Reissuance of Lost Title.

Where do I file for Reissuance of Lost Title in the Philippines?

A petition can be paid online depending on the location.

A petition for Reissuance of Lost Title is filed at the Regional Trial Court that has jurisdiction over where the land is located.

What are the requirements to file a petition for Reissuance of Lost Title in the Philippines?

These requirements must be attached as exhibits on the petition and must be original or certified true copies.

The requirements to file a Reissuance case are documents that show your ownership such as a Certified True Copy of Title from the Registry of Deeds.

A more detailed list of accepted documents is below:

· Co-owners, mortgagee’s or lessee’s duplicate Certificate of Title

· Certified True Copy of Title from the Registry of Deeds

· If the Reissuance is for a Transfer Certificate of Title, the Deed of Transfer such as a Deed of Absolute Sale, Extrajudicial Settlement, Deed of Donation or other like a document on file at the Registry of Deeds upon which the lost certificate of title had been issued

· If the Reissuance is for an Owner’s Copy of Title, the patent or registration that the land title originated from which is on file at the Registry of Deeds

· A document, on file in the registry of deeds, by which the property, the description of which is given in the said document, is mortgaged, leased or encumbered, or an authenticated copy of the said document showing that its original had been registered

· Any other document accepted by the court

In a petition for Reissuance of a lost title, the most commonly used document is a Certified True Copy of Title from the RD.

The other documents are used as well but on a smaller scale.

If you have lost the Original Owner’s Copy of Title, go to the RD to get these documents or at least order the Certified True Copy of Land Title online before contacting a land lawyer to file a case.

What is the process to file a petition for Reissuance of Lost Title in the Philippines?

After the court has granted your petition, you will need to register it with the registry of deeds for the reissuance of the lost certificate of title.

The process to file a petition for Reissuance of Lost Title in the Philippines is gathering the documents, filing the case, completing trial and then registering the decision at the RD.

In detail, the process is like this:

· Gathering documents at the Registry of Deeds and supporting documents like the tax declaration

· Land Lawyer drafts a petition for reissuance of title and attaches supporting documents

· Completing jurisdictional requirements such as posting, service, etc.

· Presenting jurisdictional requirements at a hearing

· Presentation of evidence with witness testimony

· Filing a formal offer

· Decision of the court

· Registering the Decision of the court at the RD

This is the process if the case is not opposed.

If the case is opposed, then expect it to take much longer as the process becomes more involved.

How much does it cost to file a petition for Reissuance of Lost Title in the Philippines?

Filing fees can be paid online thru https://epayment.judiciary.gov.ph/

The cost for a Reissuance of a lost certificate of title is composed of document gathering fees, land lawyer’s fees, and court costs. It can increase when the case is opposed.

Because this is a full trial and because it takes at least a year and a half from filing to a decision, expect to pay for that amount of work.

Perhaps a good peg is about one-half of the total cost of an Annulment case – but it’s hard to give an exact figure because it depends on the lawyer’s experience, your location and the documents you have.

FAQS on Reissuance

Can I buy a lot without title in the Philippines?

Only buy lots with clean papers and original land titles.

If you buy a lot without an Original title in the Philippines, you run a really big risk because you need the Original title to transfer that title to your name.

If you do not transfer the title to your name, it is very possible that you will not be recognized as the owner.

Why buy something when you won’t really own it?

And no, a tax declaration in your name is not proof of ownership of the land.

Can you sell land without Original Title?

Just because you can, does not mean you should.

Yes, you can sell land without an Original Title so long as the buyer agrees.

However, in large transactions, most buyers will require an Original Land Title.

Can I get a Certified True Copy of Title online?

Unfortunately, not all land titles are reflected online.

Yes, you can get a Certified True Copy of Title online for some titles.

However the online Registry of Deeds is not complete, so you will have to physically go to the RD if you get a negative result.

How much does it cost to change a land title in the Philippines?

Any corrections or amendments to your existing land title must be scrutinized by the court.

A Reissuance of a court case provides you with a title exactly the same as the original lost certificate of title.

Amending a land title in the Philippines – for example, a typographical error in the name of one of the owners – will usually require a court case.

Please speak to a Land Lawyer for assessment to see what your options are.

My relative will not give me back my title. Can I go to court to get a new Title through a Reissuance case?

These kinds of complicated cases must be handled by professional lawyers only.

No, it is not a good idea to do this because it is possible that your new land title will be canceled upon presentation of the old title.

There is a risk you should avoid.

If this is the situation, talk to a Land lawyer to see what your options are.

Will going through Reissuance remove a mortgage on the land title?

Reissuance only revives the lost title. It does not alter its contents.

No, it will not.

A petition for the Reissuance of lost title will provide you with the title as it was.

If there was a mortgage or other encumbrance on the title, that will still be reflected in the new copy.

The post Lost Certificate of Title (Reissuance to get your title back) appeared first on A Better Consult.

How to Title land in the Philippines (8 processes to get your title)

Vergel — Thu, 05 Jan 2023 09:21:18 +0000

It’s the dream of every Filipino to own land but it is not easy.

The process of how to title land in the Philippines is different depending on the situation.

One of the first things you need to know is whether the land has ever had a title before since the titling of unregistered land is very different from the titling of registered land.

For land that has a title, but now needs to be transferred:

Deed of Sale
Deed of Donation
Extrajudicial Settlement (EJS With Sale, EJS with Waiver of Rights)

For titling of unregistered land:

So, the very first step to title land in the Philippines (yes, even before you consult with a land lawyer) is to check whether the land had a title before and do due diligence.

How to Check if Land is Registered

The first thing to do is to check the tax mapping with the LGU assessement office to identify the lot area and the registered taxpayer if any.

The first step to title land in the Philippines is to check if the land is registered.

This step is important to do.

Even if you consult with a land lawyer, he won’t be able to tell you which process to follow unless you determine that specific fact.

The processes for getting a title all first demand that you know whether the land was titled, so try to get this information first instead of wasting time and money at a land lawyer consult.

The Registry of Deeds is slowly computerizing.

Many titles are still not on the computerized system, so you will actually need to check at the Registry of Deeds in person.

It is not too difficult but it will take time.

Go to the Registry of Deeds where the land is located.

Ask them to check whether the land is titled and get a Certificate of No Title if it is untitled land.

If the land is titled, ask the Registry of Deeds to give you a Certified True Copy of Title, which they can do so long as you prove that you have a valid claim on the land – for instance, you are an heir.

This trip checks to see check the status of the land is important and must be done.

With this information, you can now determine whether you will start the process for the titling of unregistered land or whether you will be working instead on the transfer of an existing land title.

Processes for transfer of title for a land that previously had a title

The process starts by gathering the documents from the LGU and also with the BIR

Now that you know that the land was previously titled, you know that you will be working on one of the transfers of title processes down below:

Deed of Sale
Deed of Donation
Extrajudicial Settlement (EJS With Sale, EJS with Waiver of Rights)

The exact process that you will use will depend on your situation, so I will give a summary of each of the processes below and a link to one of our articles for more details.

As you can see, there are different processes and requirements for the transfer of title and you must know which one to apply.

You can consult with a Land Lawyer to help out – understandably, it can be confusing.

1: Transfer of Title through a Deed of Sale

The question is, is the registered owner willing to sell the land?

The Transfer of Title process through a Deed of Sale is used when:

The owner is alive
The title is in his name

The requirements for the transfer of title are the following:

Notarized and signed Deed of Absolute Sale, authenticated if one of the parties is abroad
Payment of BIR 6% Capital Gains Tax, 1.5% Document Stamp Tax, unpaid realty taxes and Registry of Deeds transfer fees
Taxes must be paid within 30 days from notarization otherwise late fees will be assessed
IDs and TINs of all the parties
Original and Certified True Copy of the property documents such as Titles, Tax Declarations, Certificates of No Improvement, etc.

One of the requirements for the transfer of title is always the Original Land Title.

If the Original Land Title is lost or totally destroyed, the only way to get it is to go through a Reissuance of Title Court case.

If the Original Land Title is held by someone who has it and will not give it back, going through a Reissuance of Title case will mean that your new title may be canceled because the other title actually still exists.

In this case, try to come to an agreement with the other person to get the title back – or as a last resort, you may have to go to court and consult with a Land Lawyer.

Note also that one of the BIR requirements for the transfer of land title is the payment of the taxes within 30 days. If it is paid later, you will be subject to late fees.

2: Transfer of Title through a Deed of Donation

Donation may sound free but there is actually a tax called Donor’s Tax that is required to transfer the property

The Transfer of Title process through a Deed of Donation is similar to a Deed of Absolute Sale due to the TRAIN Law.

It is done when the:

Owner is alive
The title is in the owner’s name

The only difference is the transfer of title is through a donation instead of a sale so you would need a Deed of Donation instead of the Deed of Absolute Sale.

You would also be taxed 6% with the exception of a maximum yearly amount of Php 250,000 exempt from taxes.

Remember, you need to pay the taxes as it is one of the BIR requirements for the transfer of land title. It must be paid within 30 days from notarization or risk late fees.

3: Extrajudicial Settlement

With an extrajudicial settlement, the land will be distributed as per the heirs agreement

An Extrajudicial Settlement is done when:

the owner is deceased
when there is no will

If an estate is being settled and a sale is being done at the same time, then you would use an Extrajudicial Settlement with Deed of Sale.

If an estate is being settled and some of the heirs are waiving their rights, then you would use an Extrajudicial Settlement with Waiver of Rights.

The requirements for the transfer of title are greater than for a Deed of Absolute Sale or a Deed of Donation since you will need all the heirs to sign.

If the heirs disagree, then you must speak with a land lawyer since you may need to go to court.

The BIR requirements for the transfer of land title are more extensive but the deadline for payment of BIR estate taxes is a year from the death of the deceased.

You will need:

Notarized Extrajudicial Settlement signed by all heirs and authenticated if heirs are abroad
All the asset documents and their CTC such as the Original Property Title, Tax Declarations, Mortgages, and Certificates of No Improvement.
Stock certificates, and vehicle registration documents, as applicable.
Payment of BIR 6% Estate Tax, 6% Sales Tax and 6% Donor’s Tax (as applicable), 1.5% Document Stamp Tax, unpaid realty taxes and Registry of Deeds transfer fees
IDs and TINs of all parties and PSA documents such as the birth, marriage and death certificates as applicable.

Expect this process to take several months if there are no issues with the documents and all the heirs agree.

However, if there are issues with the documents (and there always are) or the heirs do not agree, consult with a land lawyer to see if you need to go to court.

Processes for transfer of title for a land that NEVER had a title

Untitled land must go through a titling process in the Philippines.

If you find out that the land NEVER had a title, then one of the processes for titling unregistered land can apply:

Residential Free Patent
Agricultural Free Patent
Miscellaneous Sales Patent
Homestead Patent
Judicial Titling

4: Residential Free Patent

RA 10023 gave birth to residential free patents to Filipinos

If the land was never titled and the land you wish to title is residential, you will instead complete DENR requirements for land titling instead of working with the BIR.

You will use this process when:

The land was never registered
You are a Filipino citizen with less than 12 hectares of land
You wish to accomplish the titling of unregistered land that is zoned as agricultural which can only be 200 sqm to 1,000 sqm, depending on the location
You and your predecessor in interest have been an occupant in good faith for a minimum of 10 years

The DENR requirements for land titling are a lot and can take a while, so for a complete discussion please read our article on Residential Free Patents. Briefly, they are:

Department of Environment and National Resources (DENR) Residential Free Patent application, DENR Certification that the land is alienable and disposable, DENR V37 Approved Survey Plan with a technical description
Land Registration Authority Certification, if applicable
Regional Trial Court Certification of no proceedings against the land
Local Government Unit Certification of Residential Zoning
Documents for valid ownership such as and Extrajudicial Settlement (EJS), a Deed of Absolute Sale (DOAS), a Deed of Donation (DOD), etc.

The DENR requirements for land titling may include the transfer of title documents such as the EJS or the Deed of Absolute Sale or Donation.

So, it’s possible you might have to do 2 processes when working on the titling of unregistered land.

It can get complicated fast.

Theoretically, you could do this by yourself – but it’s very, very hard.

Read our article on full details on Residential Free Patent – or alternatively, consult with a land lawyer to get help.

5: Agricultural Free Patent

By removing limits on free patents under the Agricultural Free Patent Reform Act, the state intends to promote economic growth, entrepreneurship, and wealth creation by enabling efficient and effective land use.

If the land is untitled and it is agricultural, you can complete DENR requirements for land titling under Agricultural Free Patent.

This process is used when:

You are a Filipino will less than 12 hectares
The land is alienable and disposable, zoned agricultural and was never titled
You and your predecessor in interest have occupied and cultivated the land for at least 20 years in good faith

You will need many of the same documents and go through roughly the same process as a Residential Free Patent.

A brief list of DENR requirements for land titling:

Department of Environment and National Resources (DENR) Agricultural Free Patent Application, Survey Plan and Technical Description, Certification that land is alienable and disposable
Land Registry Authority of land status, if applicable
Regional Trial Court (RTC) of no proceedings against the land
Documents showing your claims such as Extrajudicial Settlement (EJS), Deed of Absolute Sale (DOAS) and Deed of Donation (DOD)

Read up on the BIR requirements for the transfer of land title up top if you need to do an EJS, DOAS and DOD.

Theoretically, all the processes for titling of unregistered land can be done yourself. However, it is quite difficult as we explain in our Agricultural Free Patent post.

It often requires a Land Lawyer’s advice.

6: Miscellaneous Sales Patent

A document announcing the private sale of public land is known as a Miscellaneous Sale Patent.

A Miscellaneous Sales Patent is another way to title land in the Philippines.

There are actually several types of sales patents, but I’ve focused on the Miscellaneous Sales Patent under RA 730.

A Miscellaneous Sales Patent may be used when:

When the other types of Patents do not apply
When the DENR and the LGU declare the land available for sale under RA 730

DENR requirements for land titling under a Miscellaneous Sales patent are similar to other patents with a few additions:

DENR Sales Patent Application, Survey with Technical Description, Geo-tagged photo of house and land
Barangay Clearance of No Dispute and Barangay Certification of Lot Titling
Assessor’s Certificate of No property
IDs of Applicant, Notarized Affidavits of Income/Support and a Special Power of Attorney, if applicable
Valid Claims such as an EJS, Deed of Sale, Deed of Donation and all accompanying documents such as PSA documents, etc.

In many cases, it is better to use the Residential or Agricultural Free Patent processes to title land in the Philippines as they are simpler and do not require payment for the land.

Read our post on Miscellaneous Sales Patents under RA 730 for more details

7: Homestead Patent

A homestead patent is a method of obtaining alienable and disposable public domain properties for agricultural uses, provided that the land is actually cultivated and occupied.

A Homestead Patent is another way to title land in the Philippines through the DENR. It is used when:

The land is untitled agricultural land
The applicant is a Filipino who does not own more than 12 hectares and who resides on the property

Like the other processes, the DENR requirements for land titling are extensive:

DENR Homestead Application, Certification on the Land Classification, Survey and Technical Description
RTC Certification of no proceedings re the land
Certification from the Municipal Agrarian Reform Office (MARO) that the applicant is not a CARP beneficiary
Barangay certification of occupancy and residence
Other requirements

8: Judicial Titling

The legal process entails submitting a petition to the court for original registration of title for a piece of property without a title.

Judicial Titling is another way to title land in the Philippines and it requires court.

It is used when:

You and your predecessors in interest have been in open, continuous, notorious and exclusive possession of alienable and disposable land under a bona fide claim of ownership since June 12, 1945, under PD 1529
If you acquired ownership under the provision of existing laws
Those who have acquired ownership of private land by right of accession or accretion
Those who have acquired land in any other manner provided for by law.

Judicial titling requires a court case, which is in some cases unavoidable if you wish to title land in the Philippines.

The post How to Title land in the Philippines (8 processes to get your title) appeared first on A Better Consult.

Extrajudicial Settlement with Waiver of Rights (Process, Steps and 4 example scenarios)

Vergel — Thu, 05 Jan 2023 08:11:14 +0000

What is an Extrajudicial Settlement with Waiver of Rights?

Some heirs can waive their rights in favor of other heirs

An Extrajudicial Settlement with Waiver of Rights is a notarized document signed by all heirs, where one or more heirs may decide to waive their claim to the estate. It allows the transfer of the deceased’s property to the heirs.

An EJS with Waiver of Rights has the same requirements and process as a regular EJS.

However, it differs in that donor’s tax may be applied depending on the situation:

Donor’s tax is applied when an heir waives his share in favor of another
Donor’s tax is not applied when an heir completely waives his share
Donor’s tax may be applied when a wife waives her share of the conjugal property regime as part of the EJS.

In this article, we briefly go through the requirements and process of an EJS with Waiver of Rights but mostly focus on Donor’s tax.

What are the requirements for an Extrajudicial Settlement with Waiver of Rights?

A certificate of No Record of Death is now accepted by the BIR in filing for Estate Tax Returns

The requirements for an Extrajudicial Settlement with Waiver of Rights are all the property documents, all the PSA documents, and the EJS itself.

To be clear, the requirements are:

· All PSA birth, death, marriage certificates and IDs of all the parties

· All property documents and their Certified True Copy such as Land Titles, Tax Declarations, Mortgages, Certificates of No Improvement, and a Certificate of Landholding for the deceased

· All titles for stocks, vehicles, etc.

· Notarized EJS with Waiver of Rights, signed by all heirs and authenticated as applicable.

Now, that sounds simple.

It’s not.

Families don’t have the documents, the documents have issues, or the heirs do not agree and won’t sign the EJS.

(And yes, all heirs have to agree and sign).

This can prevent an estate from ever being settled.

We discuss a lot of these common problems in our post on Extrajudicial Settlements.

Our article talks about these issues from a very, very practical standpoint so that you can be helped.

(It can take years to do an EJS if problems are encountered in the documents. Read the post – it will help. If you need personalized advice, you can always contact us later for an Inheritance Lawyer consultation).

What is the process of an Extrajudicial Settlement with Waiver of Rights?

Publication of the Extrajudicial documents is required by Registry of Deeds

Extrajudicial Settlement with Waiver of Rights follows the regular EJS process:

Gather the documents
EJS with Waiver of Rights drafted by an Inheritance Lawyer
EJS with Waiver of Rights is signed, notarized and authenticated (if heirs are abroad)
EJS and all supporting documents are submitted to the BIR
BIR Estate taxes and Donor’s taxes are paid
Assets are transferred to the new owners

Because of the manual filing at the BIR and each pertinent location and because extra documents may be required at the BIR, please remember that the process can take longer than it looks.

Try to settle within a year or within the period, since afterward late fees are added every year on top of the BIR estate taxes.

And if there are applicable Donor’s Taxes, the Donor’s taxes must be settled within 30 days or face late fees as well.

Is an Extrajudicial Settlement with waiver of rights subject to donor’s tax? Specific Examples below

ONLY the general renunciation by an heir, including the surviving spouse, of his share in the hereditary inheritance left by the deceased is exempt from donor’s tax, according Revenue Regulations (RR) No. 12-2018.

An Extrajudicial Settlement waiver of rights can be subject to donor’s tax, depending on the situation on top of the BIR estate taxes, the Inheritance Lawyer fees, Documentary stamp tax, the transfer fees, the costs of getting the documents and the Accountant’s fees if applicable.

We’ve discussed many of these fees in our articles on Extrajudicial Settlements and BIR Estate taxes depth.

You’ll need to know about these BIR estate taxes since these are applicable in an EJS with Deed of Donation.

There is a significant difference between a regular EJS and an EJS with Waiver of Rights.

The Donor’s tax must be paid within 30 days of the notarization of the document.

If it is not paid, then the donor’s tax is subject to late fees.

I’ll be discussing donor’s tax further down below – specifically when it is applicable.

This is thoroughly discussed in BIR Revenue Regulations (RR) 12-2018 and Revenue Memorandum Circular (RMC) 94-2021.

However, I find that specific examples help people understand better.

Let’s go through 4 specific scenarios below.

1: An heir completely waives his share in favor of the other heirs.

Some heirs waive their rights only for a specific property

RMC 94-2021 discusses this in its very first line, “General renunciation of an heir on his share from the inheritance is not subject to Donor’s Tax.”

This is very pertinent for families where some heirs have long left the Philippines.

They sometimes completely waive their share of properties since they cannot administer them. This situation is applicable to them.

2: An heir waives his share in favor of one specific heir.

Some heirs waive their rights only for a specific property

When an heir waives his share in favor of a specific heir, this transaction is subject to Donor’s tax.

Thus, this Extrajudicial Settlement with Deed of Donation would have both BIR Estate Taxes and Donor’s Tax.

3: Heirs determine specific properties that go to them.

If there are 3 properties and 3 children and the children choose specific properties, there is a donation when the value is in excess of the “should be” share of the inheritance.

In the example up top, each heir should get 2,083,333 of the estate.

However, 2 get more than that and one gets less since specific properties go to each heir.

So, in this specific Extrajudicial Settlement with Deed of Donation, there is Donor’s tax applicable.

4: A legal spouse completely waives his or her interest

A surviving spouse can also donate their inherited share but will retain their conjugal property share

A legal spouse waives his or her share of the inheritance and her part of the Conjugal Property in favor of her children.

If a parent passes away and the legal spouse decides to waive both his or her share of the inheritance and the share in the conjugal property in favor of their children, the donor’s tax is applied to the conjugal property donated.

I know that sometimes estate matters can be complicated but hopefully, this has cleared up a lot of your questions.

If your situation is complicated and you need personal advice, you can always contact us for a formal consultation with an Inheritance Lawyer.

The post Extrajudicial Settlement with Waiver of Rights (Process, Steps and 4 example scenarios) appeared first on A Better Consult.

Extrajudicial Settlement with Deed of Sale (Practical Guide to Getting it Done)

Vergel — Thu, 05 Jan 2023 07:23:21 +0000

What is an Extrajudicial Settlement with Deed of Sale?

Settling an estate requires back and forth visits with several government offices

An Extrajudicial Settlement with Deed of Sale is a notarized document that transfers property from a deceased owner who does not have a will to a buyer with the consent of all the heirs. It must be settled within a year otherwise to avoid annual tax penalties.

An Extrajudicial Settlement with Deed of Sale must:

The notary fee is usually 1-2% of the total amount of the estate

Be a notarized document
Be accompanied by all asset documents such as the Original Owner’s Title, Vehicle Registration, etc.
Be signed by all the heirs
The buyer must be an actual buyer willing to go through this process with you – if you just want to sell and have buyers who are interested but haven’t settled on one or that buyer is not willing to go through this process, then you are better off doing an Extrajudicial Settlement

It is a combination of an Extrajudicial Settlement and a Deed of Sale and is a good option since an Extrajudicial Settlement with Deed of Sale completes both the EJS and the Deed of sale in one document.

When you settle an estate you transfer it to the heirs.

When you sell an Ordinary Asset you transfer it to the buyer.

However, when you do an Extrajudicial Settlement with Deed of Sale, you transfer directly to the buyer, so avoid the difficulty of 2 transfers.

Why do I need to settle the estate?

Settle the estate first before selling it as generally buyers will require it so that the property can be transferred to their name.

Settling the estate is important because it allows the transfer of the titles to the new heirs or owners.

Without settling an estate, a land title cannot be transferred to the heirs.

Without settling an estate, a land title cannot be transferred to the buyer.

If the title is not in your name, you cannot reap the full rewards of being an owner.

What are the requirements for Extrajudicial Settlement with Sale?

The process usually requires the turning over of the original certificates of ownership like the land title

The requirements for Extrajudicial Settlement with Sale are that you must have an actual buyer with the amounts agreed, agreement amongst the heirs and all the property documents.

An actual buyer and agreed prices. If you just want to sell but have no buyer, you had better do just an Extrajudicial Settlement
Notarized EJS with the signature of all the heirs, authenticated if heirs are abroad
Property documents such as Original Owner’s Title, Certified True Copies of Title, Tax Declarations, Certified True Copies of Tax Declarations, Certificate of Landholdings, Certificate of No Improvement, Certified True Copy of Mortgages and SOA from the Bank
Stock documents such as Owner’s Stock Certificates and Audited Financial Statements, if unlisted
Vehicle documents such as Owner’s Registration for a vehicle
PSA death and marriage certificates of deceased
PSA birth, marriage and death certificates of heirs
TINs and IDs of all involved showing current signature and photo
Payment of all realty taxes
Certification from a registered accountant if estate is more than 5M

Please note –

One of the requirements for Extrajudicial Settlement with Sale is that there must be an identified buyer with an agreed-upon price.

Agreements may require a down payment to close the deal even before the estate have been settled

If you just want to sell the property but don’t have a specific buyer, do an Extrajudicial Settlement instead.

Also note –

Another one of the requirements for Extrajudicial Settlement with Sale is that all the heirs must sign. If some heirs disagree, you will need to discuss this with an Inheritance Lawyer because you may end up going to court. It is best to avoid court.

Lastly –

So many estates are never settled because of a lack of documents.

While you can pay estate taxes with just a tax declaration, you will need the Original Owner’s Title so that the property can be transferred to the buyer. And sometimes documents as simple as a birth, marriage or death certificate can result in a PSA Certificate of No Record.

Even if documents are available, a lot of documents have issues with the names being improperly spelled or inconsistencies. This can also cause issues.

In our FAQ below, we answer common issues we find such as:

These are the key questions that can give you a quick understanding of what you can expect

Who are the heirs?
Do all owners of a property have to agree to sell in an Extrajudicial Settlement with Deed of Sale?
What if you do not have the original land title?
What if you do not have any documents at all?
What if the tax declaration is in someone else’s name?
And other common FAQs, such as if you can sell the property without settling the estate, whether a co-owner can sell part of an estate, etc.

Hopefully, this will help you understand what needs to be done.

What is the process for an Extrajudicial Settlement with Deed of Sale?

This is a very tedious process so plan your trips and call ahead of time to avoid disappointment

The process for an Extrajudicial Settlement with Sale is that the documents are gathered, submitted to the BIR, and then transferred by the appropriate government agency – exactly the same as a regular Extrajudicial Settlement.

I’ll summarize the Extrajudicial Settlement with Deed of Sale process below, just in case you are not familiar with it:

Gather ALL the documents
Inheritance lawyer drafts Extrajudicial Settlement with Deed of Sale
ALL the heirs sign the Extrajudicial Settlement with Sale and it is notarized and authenticated, if the heirs are abroad
Documents are submitted at the BIR
BIR estate taxes, capital gains taxes and document stamp taxes are paid
E-CAR is submitted to the Registry of Deeds and titles are transferred or to the applicable government agency (LTO for vehicles, etc.)

It’s deceptively simple, I know.

But because gathering the documents can take months due to the issues we always find in them, the process can easily take up the entire allocated year.

Remember though that you need to rush since Estate tax penalties do happen.

If the estate is not settled after a year for deaths on Jan 1, 2018, and after, then BIR penalties are added to the BIR estate taxes on every anniversary of the death.

What is the cost of an Extrajudicial Settlement with Deed of Sale?

Be prepared for the cost of settling an estate as there are taxes and transfer fees.

The cost for an Extrajudicial Settlement with Deed of Sale is 6% of the net estate and the 6% on the same, plus the cost of gathering the documents.

Your possible costs are detailed below:

Inheritance Lawyer’s fee
Accountant’s fees (this is one of the requirements for an Extrajudicial Settlement with Sale if the estate is more than 5 million)
Estate taxes of 6% on the net estate
Capital gains of 6% on the sale
Document stamp tax of 1.5%
Document gathering fees
Transfer fees at the Registry of Deeds or applicable agency
Payment of unpaid realty taxes
BIR Late fees are added every year that the estate is not settled, so settle it as soon as you can.

Let’s talk about the BIR Estate Taxes.

BIR estate taxes are one of the major requirements for extrajudicial settlement with the sale and must be paid – you cannot settle an estate without paying it.

The amount of BIR Estate Taxes depends upon when the person died.

Prior to TRAIN, there were something like 8 different estate tax laws that are to be applied depending on the date of death.

For example, if the deceased passed away on June 3, 1976, the applicable estate taxes are those from PD 69.

The Estate Tax Amnesty has been extended to June 2025

But if the death was after Dec 31, 2018, then the TRAIN laws apply.

Currently, the effective BIR Estate Tax calculation is as follows:

Estate taxes are 6% of the net estate
Standard deduction of 5 Million
Family home of 10 Million
Surviving spouse shares the conjugal property
For properties previously taxed and transferred within 5 years, there are some deductions in light of previously paid taxes

This can be a little complicated – it’s best to consult with an Inheritance Lawyer so that he can tell you the best ways to reduce the BIR Estate taxes.

Please note that an Inheritance lawyer cannot calculate the exact BIR Taxes during an initial consultation because he would need all the documents as well as new documents that he needs to get from the government. Your lawyer would need to study the case to get an exact cost, which most can only do after getting all the documents, and all the information and spending some time on it.

FAQs on Extrajudicial Settlement of Estate

Who are the legal heirs of a deceased person in the Philippines?

Who the heirs will be depends on the nationality of the decedent but it is ususally the legitimate children and suriving spouse.

If a person has a Will, then the Will determines the heirs but must still respect the laws on Disinheritance, Compulsory heirs and Rules on Notarial and Holographic Wills.

If a person does not have a Will, the laws on Compulsory Heirs will be followed.

Compulsory Heirs are those who the law states must inherit unless validly disinherited or otherwise removed; for example, a legal spouse no longer inherits if annulled.

Do all heirs have to agree to sell property in the Philippines?

Heirs have equal rights over the estate so each must be consulted first.

An heir can sell his part of the property, if he wishes.

But to transfer to the new owner’s name, the property must be subdivided so that the portion that is being sold can be titled to the new owners.

Do all the heirs have to sign the Extrajudicial Settlement with Sale?

If the heirs live apart, they can just choose one representative among themselves as the adminstrator and executor of the deed by signing a special power of attorney appointing that specific heir

Yes, one of the requirements for extrajudicial settlement with sale – or for all extrajudicial settlement is that all heirs sign.

If not all the heirs agree to the sale, then try to do an Extrajudicial Settlement instead or subdivide the property.

Just remember that to settle any estate all the heirs must sign.

(Remember to settle the estate as soon as possible because each year late fees will be added to the estate taxes if the estate remains unsettled and this can be very, very expensive.)

What if one of the heirs is abroad?

Apostille certificate is required if a person signs a document while he or she is not in the Philippines.

If one of the heirs is abroad, it can be more challenging logistically since he will have to sign, notarize and then authenticate the Extrajudicial Settlement with Deed of Sale abroad before it can be used in the Philippines.

But still, all the heirs must sign – it is one of the requirements for extrajudicial settlement with sale or any EJS for that matter.

Can a property be sold without an Extrajudicial Settlement?

It is also the obligation of the buyer to practice due diligence and check if the property has completed is estate settlement already

Yes, but it cannot be transferred to the new owner’s name unless the estate is settled.

Serious buyers and businesses will want the estate settled before they buy, and will often pay a higher price because the land is correctly titled.

What if you do not have the original land title?

Without the original land title, the BIR Certificate Authorizing Registration and the title will not be transferred even if the estate has been settled.

If you do not have the Original Owner’s Title (not a photocopy), then you will need to go to court in a Reissuance case so that a new owner’s copy can be given to you.

What if you do not have any documents at all?

It is a lot cheaper to DIY but you also runs the risk of making expensive mistakes

If you do not have any documents at all – say you just have a name and an address, be prepared to spend money and time on getting the documents.

If it is land, first go to the Registry of Deeds where the property is located and get the following documents for the name of the deceased:

· Certified True Copy of Title

· Certified Tax Declarations and Tax Computation

· Certificate of Land Holdings

That will check first if the property is in the name of the deceased and give you a very good place to start gathering the other documents and contacting ALL the heirs so that they sign the EJS or help settle the property.

What if the tax declaration is in someone else’s name?

An untransferred tax declaration means additional work and expenses

If the tax declaration is in a name other than the deceased but the land title is in the deceased’s name, it must be transferred first so that the tax declaration can then be transferred to the new heirs or owners.

To transfer a tax declaration, you will have to show proof that it was bought, inherited or otherwise acquired by the deceased.

This may mean that you need to show a Deed of Sale or a previous EJS.

Can you do this without an Inheritance Lawyer?

Consult an expert lawyer to help you process your estate settlement with deed of sale quickly and securely

Yes, supposedly you can do this without an Inheritance Lawyer, but I’ve never actually seen anyone do this without one.

Because the requirements for Extrajudicial Settlement with the sale are numerous and because there are so many difficulties gathering the documents, it is very, very, very hard to do by yourself.

With an Inheritance Lawyer, you are guided and have a better chance of succeeding.

The post Extrajudicial Settlement with Deed of Sale (Practical Guide to Getting it Done) appeared first on A Better Consult.

Extrajudicial Settlement (Practical Info on when heirs disagree, property documents are missing, and other common issues)

Vergel — Thu, 05 Jan 2023 06:56:39 +0000

What is an Extrajudicial Settlement of Estate?

An Extrajudicial Settlement of Estate is a notarized document that transfers a deceased’s person’s property to new heirs when there is no will and is signed by all the heirs or their representatives.

Notarization is required
Property information and details such as the title number, tax declaration and technical descriptions should be in the EJS
All properties should be listed in the EJS and property documents should be complete.
All heirs must sign and agree
If settled more than a year after the death, late fees are added every year it is unsettled aside from BIR Estate taxes.

The above requirements are very difficult for families to accomplish.

Some properties are never titled in the heirs’ names and some heirs even go to court (especially when there is disagreement).

But an Extrajudicial Settlement of Estate is very important to do.

It is a requirement to transfer a title to the new heirs. It also may be required for an Agricultural Free Patent, a Residential Free Patent or to access a deceased’s bank account. Without an EJS, the land can eventually be lost.

Note that there are different Extrajudicial Settlements that are possible:

An Extrajudicial Settlement of Estate with Deed of Sale when you are settling the estate and have a buyer who is willing to do this process with you
An Extrajudicial Settlement of Estate with Waiver of Rights when you are settling the estate and have heirs who wish to waive their rights or donate to others.

What are the requirements for Extrajudicial Settlement in the Philippines?

The requirements for Extrajudicial Settlement in the Philippines are all the property documents, all family Registrar documents, IDs and the EJS itself.

Let’s go through the exact documents needed:

Original Land Title and Certified True Copies of Land Title from the Registry of Deeds
Certified True Copies of Tax Declarations from the City Assessor’s Office
Certificate of Land Holdings from City Assessor’s Office
Certificate of No Improvement
Certified True Copy of Mortgage and Statement of Account documents from the bank, if applicable
Original Certificates of shares of stock
Audited Financial Statements for unlisted shares of stock
PSA Death Certificate of the deceased and PSA Marriage Certificate, as applicable
PSA Birth Certificate, PSA Marriage Certificate, and PSA death Certificate of all his heirs, as applicable
Payment of all outstanding realty taxes
Certification of a registered accountant for the tax computation, if applicable
Notarized Extrajudicial Settlement of Estate with the signature of all the heirs.
IDs and TINs of all the heirs

If you are reading this and don’t have some of the requirements or the requirements are imperfect, then you can check out the FAQ section below, where we talk about common situations such as:

What if you do not have the original land title?
Do all heirs have to sign the EJS?
What if there are errors in the PSA documents or what if you have a PSA document of No Result?
What if names are misspelled on the property documents?
What if tax declarations are in someone else’s name?
And other common questions

All of the above can cause problems.

If there are several issues with your documents or the family situation is complicated, a consultation with an Inheritance Lawyer is important.

Getting the documents is about 60% of the work and you might need advice on what to do if you have trouble.

Note also – you must gather all of this within a year for deaths covered by TRAIN since after that late fees are added every year that the estate is unsettled in addition to BIR Estate Taxes.

What is the process of Extrajudicial Settlement in the Philippines?

The process of Extrajudicial Settlement in the Philippines is the documents are gathered, the BIR estate taxes are paid, the BIR e-CAR is registered in each Registry of Deeds.

The process of Extrajudicial Settlement of Estate is as follows:

Gather ALL the documents
Send documents to an Inheritance Lawyer to draft the EJS as the lawyer will need all the above requirements for an Extrajudicial Settlement of Estate. The main reason an Inheritance Lawyer might not be able to finish drafting the EJS is the lack of documents.
Have ALL the heirs sign the EJS and notarize it
Pay the BIR Estate Taxes
Register the e-CAR at the Registry of Deeds for each location

It sounds so simple, does it?

And yet, settling an estate can take several months mainly because there can be a lot of back and forth at each step.

For example, if I was to ask you to get all the above property and PSA documents, you would probably take some time to do it.

Likewise, it also takes some time at the BIR or Registry of Deeds as they may ask for additional documents or compliances.

So much depends on the situation.

How much does it cost to transfer land title to heirs in the Philippines?

The cost to transfer land title to heirs in the Philippines is made up of the BIR estate taxes, Registry of Deeds transfer fees, payment of unpaid realty taxes, payment to gather documents, payment to the certified accountant, publication costs and fees paid to an Inheritance Lawyer.

The amount you can expect to pay depends on the date of death.

For deaths after Dec 31, 2017 (other tax regimes apply before that date), you can expect the following:

· BIR estate taxes are 6% of the value of the net estate

· Registry of Deeds transfer fees

· Payment of unpaid realty taxes

· Payment to a certified accountant, costs depend on location

· Payment to an Inheritance lawyer for drafting and advice

· Cost of gathering documents

The biggest cost is the BIR estate tax.

I explain this in my article on BIR Estate Taxes since taxes will differ depending on the situation (For instance, an EJS with Waiver of Rights will have a different calculation depending on the situation) and the applicable law.

The applicable law depends on the date of death of the deceased – for example deaths from Jan 1 1986 to July 27, 1992 are covered by PD 1994.

Currently, the law in force is the TRAIN law. I’ll talk briefly here about some major things that can affect BIR Estate Taxes for Philippine citizens and resident aliens:

· Php 5,000,000 standard deduction

· Php 10,000,000 for the family home

· Surviving spouse’s share of the estate

· Mortgages or claims against the estate

· Properties previously taxed and transferred within 5 years of the death may have available deductions depending on the date of transfer

Please note that the deductions are affected by the date of the deceased death and whether or not the deceased was a citizen of the Philippines or non-resident alien. Non-Resident Aliens Estate Taxes have different deductions.

The deductions above are the major and most common ones that affect the estate.

There are others but they are rarely used – the majority are going to be using the above.

For an assessment of your situation talk to an Inheritance Lawyer to understand factors that can reduce costs.

A detailed Estate Tax cost at the BIR is possible only after the Inheritance Lawyer actually accepts your case however because he has to go through all the documents and sit down and do a deep analysis.

How long is the process of Extrajudicial Settlement of Estate in the Philippines?

The process of Extrajudicial Settlement of Estate can be a few months if the family all agrees, has the documents and has the money to pay for the taxes required.

Common causes of delay are:

The family does not agree on how to settle the estate and so much settle the estate through the court with the help of an Inheritance Lawyer. This can take years and the family really struggles – for all my clients, I urge them to really try their best to come to a compromise.
The property documents are missing and they don’t have the Original (not a photocopy) of the Owner’s Transfer Copy of Title. Getting a new OCT requires going to court so this should be discussed with your Inheritance lawyer.
The property documents and PSA documents have misspellings on the name or factual inconsistencies which can require other documents to be prepared and additional time spent.
PSA documents cannot be found such as when there is a PSA Certificate of No Record
There is not enough money to pay the realty taxes, the BIR, the lawyer or the CPA. Expect that nothing will be completed without the money to settle the estate properly although the BIR does accept partial payment or the sale of assets to pay for the tax.

You are not alone if a lot of this is applicable to your situation, since so many people struggle with the same issues.

You and your family must solve the issues of getting the family to agree on how to divide the estate and how to pay for the estate taxes and the professional fees.

You and your family alone must agree (although perhaps an Inheritance lawyer may advise or represent you and help get an agreement, at the end of the day this must be solved by the family).

An Inheritance lawyer can help you with other things and give you good advice on what to do.

FAQs on Extrajudicial Settlement in the Philippines

Who is the legal owner of the property after death?

The legal owner of the property after death is the compulsory heir if there is no will or the heirs stated in the will.

Note that only a valid will can disinherit Compulsory Heirs and that this will must go through Probate with an Inheritance Lawyer. Note also that it is hard to disinherit – there are very specific grounds that you can use.

Who are the legal heirs of a deceased person in the Philippines?

If the deceased has a valid will that has successfully gone through Probate, then his heirs are those specified in the Will.

I there is no will, then his heirs are the compulsory heirs are specified in Philippine Succession law.

Do all the heirs have to sign the Extrajudicial Settlement?

Yes, all the heirs have to sign the EJS.

If there is disagreement, then the EJS cannot proceed and you will have to go to court. The court is more expensive, more time-consuming and more difficult than an EJS. I strongly, strongly urge you to just agree.

Do all heirs have to agree to sell property in the Philippines?

Yes, they do as they must sign documents so that the buyer wants to be able to transfer to his name.

If they do not agree to sell the property, then it is possible that they go to court to settle the issue. The court is expensive and time-consuming. It is better to agree.

What happens if the Original Land Title is missing?

You will be able to pay the estate taxes but you won’t be able to transfer the title to your name since the Original Land Title is missing.

You can go to court in a Reissuance case to get a new Original Land Title while the EJS is being done. Discuss this with your Inheritance Lawyer.

How do you divide inherited property between siblings in the Philippines?

If siblings cannot agree, it is possible to subdivide a mother title.

However, the process for this is not at all fast. A new survey has to be done and the results submitted to the CENRO/DENR office. Then the process of subdivision starts. There are so many requirements for this as well.

Can you sell a property if the owner is deceased?

Yes, you can sell a property if the owner is deceased but the new owner will eventually need to settle the estate if he wants to transfer it to his name.

Some people do an Extrajudicial Settlement of Estate with Deed of Sale so that they can settle the estate and do the sale at the same time. This reduces the taxes that need to be paid but requires a firm buyer and a lot of coordination.

Can you withdraw money from a deceased person’s account?

Although TRAIN law allows the withdrawal of funds subject to the 6% BIR Estate Tax, in practice the banks will not allow withdrawal without the Extrajudicial Settlement.

You must settle the estate first.

Can the wife claim her husband’s property after his death?

If you are legally married – you are not a common law wife – then you are a compulsory heir unless a valid will disinherits you.

But you are likely inheriting with other co-heirs such as children of your spouse (yes, including illegitimate children) or his siblings if he has no children.

What happens to a jointly owned property if one owner dies in the Philippines?

If one of the owners dies, then the property will now be owned by the surviving co-owner and the heirs of the deceased as specified in the valid will or as determined by the Laws on Succession for Compulsory Heirs.

What if there are errors in the PSA documents or what if you have a PSA document of No Result?

Basic documents can sometimes be extremely hard to get when the documents are old.

It can be very, very challenging to get something as simple as a birth certificate – we know since we got one for a lady who was 98 which required months and months of legwork.

If this is your situation, check out my article PSA Certificate of No Record.

If there are errors on the PSA documents, you might have to correct in extreme cases (depending on the error) or you might actually not even be able to transfer through an EJS.

What if names are misspelled on the property documents?

If the names are misspelled, it depends on how bad the misspellings are. This can cause quite a lot of delay.

What if tax declarations are in someone else’s name?

If the tax declaration is in a name other than the deceased, you have to prove that the deceased acquired the property before it can be transferred to the new owners.

You may have to show an EJS, a Deed of Sale, etc. so that it can be proved that it was validly the deceased and it can be transferred to the new heirs.

The post Extrajudicial Settlement (Practical Info on when heirs disagree, property documents are missing, and other common issues) appeared first on A Better Consult.

Homestead Patent in the Philippines

Vergel — Thu, 05 Jan 2023 03:47:03 +0000

What is homestead patent in the Philippines?

This homestead system was introduced during the American period of “Long Live America” in the Philippines.

A Homestead Patent is a document awarding untitled property to a Filipino citizen who must cultivate the land.

A Homestead Patent – along with Residential Free Patents, Agricultural Free Patents and to some extent Miscellaneous Sales Patents help regular Filipinos title property that they have worked on or lived on in their names.

A Homestead Patent is not yet a Land Title but allows the applicant to get a title at the Registry of Deeds after the Homestead Patent has been awarded to them.

On what law is a Homestead Patent in the Philippines based?

The government still has the ultimate ownership of the land even without a Patent.

A Homestead Patent is based on the Commonwealth Act 141 of 1936.

A Homestead Patent is discussed in the Chapter dealing with the forms of concession of agricultural lands, although it was subsequently impacted by the 1987 Constitution reducing the allowable hectares to 12.

Who is eligible for a Homestead Patent in the Philippines?

Homesteaders can take ownership of a certain tract of public land and are considered its legal owner when terms and conditions have been complied with.

Persons eligible for a Homestead Patent in the Philippines are the following:

Filipino citizens
Over 18 years old or the head of the family
Does not own more than 12 hectares
Must actually occupy the property and treat it as his residence
Land must be agricultural

After the Homestead Patent Application is approved, the law requires that at least one-fifth of the land be cultivated one year to at most five years from the date of the approval of the Application.

Only when this condition is satisfied can the applicant continue the process and receive a Certificate of Title.

Note that it is now easier for married women to apply.

Previously, a married woman had to fulfill certain requirements (her husband was in prison, insane, etc.) if she wanted to apply.

DAO-2002-13 removed these requirements and so now treat men and women applicants equally.

Where are the requirements for a Homestead Patent in the Philippines?

The enforcement and conveyance of patents after the rights to specific public property have been achieved are merely official acts of the official entrusted with that duty.

The requirements for a Homestead Patent in the Philippines are the following:

· Homestead Application

· Certification from the Municipal Agrarian Reform Office (MARO) that the applicant is not a CARP beneficiary

· Certification of the actual occupancy and residence by the Barangay Chairperson

· Certification from LRA or RTC

· Certification on the Classification of the Land by CENR Officer

· Approved Plan and Technical Description

· Other requirements as needed

The CENRO office will guide you through the requirements since there is some variability in what is required and in each CENRO office as to the exact process.

How do I apply for a Homestead Patent in the Philippines?

Past administrations urge land distribution under aggressive land reform programs that helps ease the life of impoverished Filipino farmers.

The process for applying for a homestead patent in the Philippines has several steps, starting with going for an assessment at CENRO and up to the Issuance of the Title.

Steps for a Homestead Patent in the Philippines:

Assessment at CENRO
Submission of the requirements at CENRO
Preliminary Investigation Report and Land Data Record Sheet
Approval of Application
Notice of Intention to Make Final Proof
Final Proof with the Testimony of Applicant
Final Investigation Report
Preparation of Judicial Form No. 67 and 67-D with the technical description on the back
Issuance of Patent
Transmittal to the Registry of Deeds
Registry of Deeds to issue Original Transfer of Title

The Comprehensive Agrarian Reform Program or CARP plans to convey almost all disposable lands including military reserves.

Above, I mentioned that there was variability in the Homestead Patent Application of each CENRO office

So, expect that there are going to be variations from the above process.

Also, expect that it is going to take a lot of time and a lot of follow-ups.

If you have worked with the DENR CENRO office before you know that they have difficulty getting information from their own files.

For a Homestead Application, they are required to check the status of the land – for example, if the lot is within the public domain and basic information about the property.

Because their computerization through LAMs is not complete and very glitchy at the moment, their ability to access their own data is slow.

Because of this, expect an application to take much longer as they pull up records manually.

FAQs for Homestead Patent in the Philippines

Can I sell Homestead Patent in the Philippines?

It’s for the landless farmers to own the land they till and cultivated for years for a fair share of the fruits they labor.

No, it is void if sold within 5 years from the grant of the patent.

PD 11231 only removed the restrictions on Section 44 which are specific to Free Patents.

Can you sell free patent land in the Philippines?

CLOA that is granted to beneficiaries have a 10-year vesting period and only after the original owner has been indemnified prior to selling or transferring ownership.

Yes, for Agricultural Free Patents under RA11231.

Is a free patent the same as a CLOA?

CLOA beneficiaries can use land certificates as collateral for bank loans with the Land Bank of the Philippines.

No, a free patent is not the same as a CLOA.

A CLOA or a Certificate of Land Ownership Award is for government-distributed land under the Agrarian Reform program.

A Patent is the disposition of public land which has several types: Agricultural Free Patent, Residential Free Patent, Miscellaneous Sales Patent or Special Patent.

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Demotion Philippines: What a good HR should know

Vergel — Thu, 29 Dec 2022 07:22:17 +0000

Demotion Philippines: What a good HR should know

Demotion in the Philippines is when “… an employee is relegated to a subordinate or less important position constituting a reduction to a lower grade or rank, with a corresponding decrease in duties and responsibilities, and usually accompanied by a decrease in salary.” [GR 171764]

A thorough examination of demotion by an employer can very well achieve the desired purpose of such reasonable action.

Demotions are different from transfers (although some cases tackle the 2 issues together, particularly when a transfer of an employee may also contain a demotion) and are the reduction in rank, pay or benefits.

Demotion sounds very similar to Diminution, doesn’t it?

That is because Demotion and Diminution look very similar – and yet the Supreme Court has stated that Demotion does fall under the Management Prerogative.

However, as with most Philippine Labor Laws, it must:

· Be for a valid and just cause (GR 198534, citing Jardine Machine Shop vs NLRC)

· Follow the correct Due Process (GR 155264)

Now, because Demotion shares similarities with Diminution (See our article Diminution Philippines for further details) a Philippine HR must be careful in how a Demotion is done.

Demotion Philippines due to Poor Performance

It usually attracts undesirable labor suits.

Demotion in the Philippines can be contemplated in cases of an employee’s poor performance.

In GR 125303, Fuerte was demoted as he was not able to meet his supervisor’s target for 3 months.

The Court stated that the right to demote an employee also falls within the category of management prerogative.

The Court further states that an employer is entitled to impose productivity standards for its workers with non-compliance having a penalty even more severe than demotion.

The Court also explains some guidelines for Demotion.

“Besides, even assuming arguendo that there was some basis for the demotion, as alleged by the petitioner, the case records are bereft of any showing that the private respondent was notified in advance of his impending transfer and demotion. Nor was the given an opportunity to refute the employer’s grounds or reasons for said transfer and demotion. In Gaco v. National Labor Relations Commission, it was noted that:

Valid termination requires due process and justifies a demotion as a reorganization to streamline operations.

While due process required by law is applied on dismissals, the same is also applicable to demotions as demotions likewise affect the employment of a worker who’s right to continued employment, under the same terms and conditions, is also protected by law. Moreover, considering that demotion is, like dismissal, also a punitive action, the employee being demoted should as in cases of dismissals, be given a chance to contest the same.”

In Fuerte’s case, the Court was satisfied that the Demotion was for a valid cause – in this case, his performance did not reach the standards required.

To prove in court that an employee’s performance is up to par, it is best to prepare an investigation, have clear standards, show proof and essentially show that the demotion had caused.

Then, present this evidence clearly to the employee and ask him for his explanation.

Simple performance-related issues it is the easiest and sometimes the most difficult to deal with.

Now, this case shows that Philippine Demotions are allowed in the workplace – however, the court also seems to require that it must follow due process.

Now, what is the due process that Demotions in the Philippines must follow?

Demotion Due Process and the Twin Notice Rule

Demotion in the Philippines requires following Due Process – and the Court has specified that the correct process to follow is that of the Twin Notice Rule.

Demotion and the Twin Notice Requirement were discussed in GR 155264:

“…the employer’s right to demote an employee requires the observance of the twin-notice requirement…”

There is no official set of rules to rely on for employment guidance. Labor lawyers rely only on Supreme Court rulings dealing with specific aspects of demotion.

In Philippine Labor Law, the Twin Notice requirement is a specific requirement requiring 2 written notices to the employee:

The first written notice should:

state the grounds
narrate the facts
ask for a written explanation within at least 5 calendar days.

The first written notice should give the employee ample opportunity to be heard, which may include a hearing.

The second written notice should contain the decision and should also be served on the employee.

The Twin Notice rule ensures that the employee is informed throughout the process. It helps him understand what is going on and allows him to present his side.

In cases of Philippine Demotion, a good HR will strictly follow this process as well as consult with a Labor Lawyer so as to do this as per the law.

Demotion Philippines: Major Points

It is a two-edged sword that can be both a tool of positive change and a weapon of destruction.

Demotion in the Philippines is when an employee is removed from his position and put in a lower position.

There are a few major items to keep in mind if you are a Philippine HR when you are doing this:

Demotion is part of management prerogative
Demotion must be for a just cause so investigate and gather proof
Demotion must follow the twin notice rule – and be strict about informing and allowing the employee to be heard

A good HR will be very detailed in following the above guidelines because Demotion is so similar to Diminution.

Demotions are similar to dismissal, both must be supported by just cause.

And out of an excess of caution – a good HR will consult several Philippine Labor Lawyers so as to get a comprehensive view of the possible Demotion before the demotion happens.

If a Philippine Demotion is done without the right advice, it may be construed as Diminution with the corresponding possible case being Constructive Dismissal.

As Labor Lawyers we prefer that our corporate clients avoid cases – it saves them time, effort, expense and worry.

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