Legal Aspects of Real Estate Reviewer (PDF)

***RESA LAW/ Real Estate Service Act/ Republic Act 9646*** **- AN ACT REGULATING THE PRACTICE OF REAL ESTATE SERVICE IN THE PHILIPPINES, CREATING FOR THE PURPOSE A PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES** **-RESA LAW or real estate...

***RESA LAW/ Real Estate Service Act/ Republic Act 9646*** **- AN ACT REGULATING THE PRACTICE OF REAL ESTATE SERVICE IN THE PHILIPPINES, CREATING FOR THE PURPOSE A PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES** **-RESA LAW or real estate service act is under republic act 9646** **HISTORY OF RESA LAW** - **Department of Trade and Industry (DTI)** who governs the real estate industry before. - During the time of DTI, ***not everyone is required or obliged to have license*** - Only **REAL ESTATE BROKERAGE, PARTNERSHIP OR CORPORATION/FIRM have license.** - **Sen. Panfilo Moreno Lacson** is the **author of RESA Law**. He is the one who file the \"bill\" (proposed law) to the Senate. - Resa law was **SIGNED** in **June 29, 2009** - Resa law took **EFFECT** in **July 30, 2009** ( the law will take effect if it was already published in general publication or **there is need to be published** to become law) - **PRESIDENT** during the time of passing RESA Law was **GLORIA MACAPAGAL ARROYO** - **SENATE OF THE PRESIDENT** was **JUAN PONCE ENRILE** - **HOUSE SPEAKER** was **PROSPERO C. NOGRALES** - **SENATE SECRETARY** was **EMMA LIRIO REYES** **WHY THERE IS A NEED FOR RESA LAW?** 1. **Taxation Purposes** - taxes is the lifeblood of the government. Government can\'t function or operate without taxes. Taxes used for general welfare, projects, paying public employees etc. 2. **To professionalize the industry** **Why PROFESSIONALIZE?** - **Integrity and Credibility** - establishing integrity can make people trust on the part of the broker. - **Liability** - for a broker to be liable to damages. **2 KINDS OF PROPERTY (will be found on Article 414, 415, 416 of Civil Code of the Philippines)** 1. **Real Property (Immovable property) -** cannot be transported from one place to another 2. **Personal Property (Movable Property)** - can be transported to another place **SHALL REMEMBER!!!** Resa law is only applicable to real property **Art. 414. All things which are or may be the object of appropriation are considered either:** \(1) Immovable or real property; or \(2) Movable or personal property. **IMMOVABLE PROPERTY** **Art. 415. The following are immovable property:** \(1) Land, buildings, roads and constructions of all kinds adhered to the soil; \(2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; \(3) Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; \(4) Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; \(5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works; \(6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included; \(7) Fertilizer actually used on a piece of land; \(8) Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; \(9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; \(10) Contracts for public works, and servitudes and other real rights over immovable property. **MOVABLE PROPERTY** **Art. 416. The following things are deemed to be personal property:** \(1) Those movables susceptible of appropriation which are not included in the preceding article; \(2) Real property which by any special provision of law is considered as personal property; \(3) Forces of nature which are brought under control by science; and \(4) In general, all things which can be transported from place to place without impairment of the real property to which they are fixed. **SHALL REMEMBER!!!** Machineries, equipment etc. as long as related to the industry is Real Property **2 KINDS OF PERSON** 1. **Natural Person** - human being 2. **Juridical Person** - is a person or entity created by law (example: partnerships , corporations) **5 REAL ESTATE SERVICE PRACTITIONERS** 1. **Real estate Consultant** - a duly registered and licensed natural person who, for a professional fee, compensation or other valuable consideration, offers or renders professional advice and judgment on development of real estate projects. **VALUABE CONSIDERATION -** means any form of appreciation **(still in performance of service)** 2. **Real estate Appraiser -** private individual who is duly registered and licensed natural person who determine the value of the property**.** 3. **Real estate Assessor -** work for the government and a duly registered and licensed natural Person who determine the value of property for taxation purposes. **Example :** Amilyar or Real Property Tax **(where to pay tax: city/municipality where property is located)** **All real estate assessors are appraiser but not all appraiser is assessor. Because for you to become real estate assessor, you need to be appraiser first.** 4. **Real Estate Broker** - a duly registered and licensed natural person who acts an agent of a party in a real estate transaction. \- agent of the buyer and seller \- the act of real estate broker is the reason why there is a meeting of the minds **- MEETING OF THE MINDS m**eans agreement in principle between the buyer and seller **HOW IS THE MEETING OF MINDS MANIFESTED?** \- through consent **3 CONSENT** \- verbal \- writing \- implied (based on the actions, example: we have an agreement, I am the buyer and you are the seller, I just nod and give you the money, this means I will buy to you (seller) even without verbal or any writing document. 5. **Real Estate Salesperson** - accredited natural person \- do not need to take licensure examination \- performs service in behalf of real estate broker **- 1 broker** has a **maximum of 20 SALESPERSON** **QUALIFICATIONS OF REAL ESTATE SALESPERSON** \- natural person \- at least 18 years of age \- finish 72 units in college \- must have completed 12 CPD (Continuing Professional Development) units \- Filipino Citizen **ARTICLE II** **PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE** **Section 4. Creation and Composition of the Board.** Before is DTI, now is Professional Regulation Commission (PRC) composed of 5 members: 1 chairperson and 4 regular members The board shall be organized within 6 months from the effectivity of RESA law (mula ng maisabatas, July 30, 2009 is the effectivity of this act) Dr. Eduardo G. Ong - 1st chairman of the Professional Regulatory Board of Real Estate Service (PRBRES) under the administrative control of PRC **Section 5. Powers and Functions of the Board.** Summary: provide guidelines to real estate industry conduct licensure exam Real estate salesperson - doesn\'t have licensure exam Real estate broker, real estate appraiser, consultant - do have licensure exam Issue, suspend, revoke or reinstate (binabalik) certificates of registration Monitor the condition affecting the practice of real estate service \- Real Estate practioners must get Continuing Professional Development (CPD) \- Purpose of CPD : ensure that real estate service practitioners are addressed or aware in the development in real estate industry or in law. \- all Professionals under PRC shall undergo and get CPD Hear or investigate any violation of this act **2 KINDS OF SUB POENA** **- Sub poena duces tecum**; to produce the documents **- Subpoena ad testificandum**; the person will have to attend and testify at the hearing Prescribe the curriculum Power to prescribe regulatory fee Adopt an official seal of the board Administer oaths and affirmations **Section 6. Qualifications of the Chairperson and Members of the Board.** **\[a.\] A citizen and resident of the Philippines** **2 KINDS OF FILIPINO** 1\. **Natural born Filipino citizen**; in leymans term, they do not need to undergo to any process to be Filipino citizen (Article 4, 1987 Philippine Constitution) 2\. **Naturalized Filipino Citizen**; he/she acquires Filipino citizenship through a legal process (example: Jordan Clarkson, Andray Blatche) **WHO ARE THE FILIPINO CITIZEN OF THE PHILIPPINES?** (Will be found on **Article 4, 1987 Phil. Const.**) \[1\] Those who are citizens of the Philippines at the time of the adoption of this Constitution \[2\] Those whose fathers or mothers are citizens of the Philippines \[3\] Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority \[4\] Those who are naturalized in accordance with law. **TWO THEORIES IN CITIZENSHIP** \[1\] **Jus Sanguinis** \- citizenship is determined by blood \- sangre means blood \- example: both parents are Filipino \- apply in the Philippines \[2\] **Jus Loci** \- citizenship is determined by the place of its birth \- example : you are born in America and your both parents are Filipino **Additional info.** \*Two citizenship is called dual citizenship **\[b.\] must be a bachelor\'s degree holder related to real estate** **\[c.\] must be an active licensed practitioner of real estate service for at least ten (10) years** (hindi bababa sa sampung taon) **\[d.\]A bona fide member in good standing of the accredited and integrated professional organization of real estate service practitioners but not an officer or trustee at the time of his/her appointment** (he/she must update his dues) **\[e. \] Neither be a member of the faculty of an institute, school, college or university, nor have any pecuniary interest, direct or indirect, in any institution or association where review classes or lectures in preparation for the licensure examination are being offered or conducted;** (he/she can teach any other subjects not related to real estate) **\[f. \] Of good moral character, and must not have been convicted by final judgment by a competent court of a criminal offense involving moral turpitude.** (GENERAL RULE: no crime has moral turpitude. (Case to case) But these specific crimes involve moral turpitude: -rape -estafa ; means abuse of trust and confidence -bigamy ;means two or more marriage but different person \- falsification of document \- perjury; means lying in the court **Additional information:** The Supreme Court renders the final judgement or conviction, but if the respondent chooses not to pursue or file an appeal, then any court may render it (kung saan sya nagstop mag appeal) **Section 7. Term of Office** The chairperson and the members of the Board shall hold office for a term of three (3) years from the date of their appointment and until their successor/s shall have been appointed: Provided, That the members of the first appointed Board shall hold office for the following terms: one (1) member as chairperson, to serve for three (3) years; two (2) members, to serve for two (2) years; and two (2) members, to serve for one (1) year. The chairperson and the members of the Board can\'t serve for more than six years \"CONTINUOUSLY\" **Section 11. Annual Report** Every year, they need to submit report **ARTICLE III** **LICENSURE EXAMINATION AND REGISTRATION** **Section 12. Licensure Examination.** Real estate salesperson- doesn\'t have licensure examination Broker, appraiser, consultant - do have **Examinations** for the practice of real estate service in the Philippines shall be given by the Board **at least once every year** in such places and dates as the Commission may designate. ( **maximum 1 year** - board exam is given in a year) **Section 14. Qualification of Applicants for Examinations.** **(SHALL MEMORIZE!! )** **(a) A citizen of the Philippines;** **(b) A holder of a relevant bachelor\'s degree from a state university or college, or other educational institution duly recognized by the CHED: Provided, That as soon as a course leading to a Bachelor\'s degree in Real Estate Service is implemented by the CHED, the Board shall make this course a requirement for taking the \"licensure examination;** **(c) Of good moral character, and must not have been convicted of any crime involving moral turpitude: Provided, That an applicant for the licensure examination for real estate consultants must show proof that he/she has at least ten (10) years experience as a licensed real estate broker or an assessor, or as a bank or institutional appraiser or an employed person performing real property valuation, or at least five (5) years experience as a licensed real estate appraiser.** **SHALL REMEMBER!!** : In terms of the qualifications of the board, he shall not have been found guilty or convicted by final judgement of any crime involving moral turpitude; however, in terms of the qualifications of applicants, he is no longer qualified if he has found guilty or convicted of the said crime. **Section 19. Revocation or Suspension of the Certificate of Registration and the Professional Identification Card or Cancellation of Special/Temporary Permit.** **(SHALL MEMORIZE ‼️)** **(a) Procurement of a certificate of registration and/or professional identification card, or special/temporary permit by fraud or deceit;** **(b) Allowing an unqualified person to advertise or to practice the profession by using one\'s certificate of registration or professional identification card, or special/temporary permit;** **(c) Unprofessional or unethical conduct;** **(d) Malpractice or violation of any of the provisions of this Act** **(e) Engaging in the practice of the profession during the period of one\'s suspension.** **Section 20. Registration Without Examination** \- it is also called **grandfather clause** \- these are instances that licensure exam is not needed anymore and those who, on the date of the effectivity of this Act, are already licensed as real estate brokers, real estate appraisers or real estate consultants by the **Department of Trade and Industry (DTI)** by virtue of **Ministry Order No. 39**, as amended: Provided, That they have undertaken CPD (continuing Professional Development) **Section 23. Issuance of Special/Temporary Permit.** \- the issuance of special/temporary permit is applicable to foreigners \- they will be given special/temporary permit to practice real estate service here in the Philippines **When they will give permit?** \- If the services are urgently needed \- if there is no local real estate service practitioners are available. **Section 24. Foreign Reciprocity** \- As a **general rule**, no foreigner shall practice real estate service in the Philippines \- But there is **exemption**, by the means of Foreign Reciprocity Rule \- Foreign reciprocity states that if a foreign country permits Filipino real estate professionals to practice service there, then the foreigner will also be permitted to do so in the Philippines. **ARTICLE IV** **PRACTICE OF REAL ESTATE SERVICE** **STEPS TO BECOMING REAL ESTATE PRACTIONER:** 1\. You need to graduate with a BSREM degree 2\. Take licensure exam 3\. File the application 4**. Section 25. Oath** - panunumpa 5**. Section 26. Professional Indemnity Insurance/Cash or Surety Bond.** \- need to get surety bond every 3 years \- 20,000 is the worth but don\'t need to pay entire 20,000 if you will go to insurance company and pay a premium for surety and cash bond worth 2,000 ( this is 10 percent of the bond) \- premium covers maximum \- purpose : to protect from fraudulent brokers Example: Falsification of documents -you committed staffa as a broker, and the insurance company will pay **Section 28. Exemptions from the Acts Constituting the Practice of Real Estate Service.** \- even you don\'t have license, you are not violating the act, but only in the following cases: **(SHALL MEMORIZE ‼️)** **(a) Any person, natural or juridical, who shall directly perform by himself/herself the acts mentioned in Section 3 hereof with reference to his/her or its own property, except real estate developers;** (It simply means if you are the owner of what you\'re selling then you don\'t need to get license) **(b) Any receiver, trustee or assignee in bankruptcy or insolvency proceedings;** **(c) Any person acting pursuant to the order of any court of justice;** (It simply means,when the court is commanding you to sell/lease then there is no need to have license because there is already permission coming from Court) **(d) Any person who is a duly constituted attorney-in-fact for purposes of sale, mortgage, lease or exchange, or other similar contracts of real estate, without requiring any form of compensation or remuneration; and** **TWO KINDS OF POWER OF ATTORNEY** **1. General Power of attorney** \- acts of administration Example: put paint, lights etc. **2. Special Power of attorney** \- acts of ownership \- action na ang binibigay Example: to sell, to lease, to mortgage **TWO PARTIES IN THE POWER** **1. Principal** \- gives the power **2. Agent / Attorney- In- fact** \- receiver of the obligation \- do not need license as long as he has SPA **(e) Public officers in the performance of their official duties and functions, except government assessors and appraisers.** **Section 31. Supervision of Real Estate Salespersons.** **QUALIFICATIONS OF REAL ESTATE SALESPERSON** \- at least 18 years of age \- finish 72 units in college \- must have completed CPD units \- Filipino Citizen \*Maximum 20 SALESPERSON in one broker\* **Section 36. Continuing Professional Education (CPE) Program.** \- before require 36 units **ARTICLE V** **PENAL AND FINAL PROVISIONS** **Section 39. Penal Provisions,** \- Any violation of this Act, including violations of implementing rules and regulations, shall be meted the penalty of a fine **of not less than One hundred thousand pesos** (P100,000.00) or **imprisonment of not less than two (2) years**, or **both** such fine and imprisonment upon the discretion of the court. In case the violation is committed by an **unlicensed real estate service practitioner**, the **penalty shall be double** the aforesaid fine and imprisonment. In case the violation is committed, by a partnership, corporation, association or any other juridical person, the partner, president, director or manager who has committed or consented to or knowingly tolerated such violation shall be held directly liable and responsible for the acts as principal or as a co-principal with the other participants, if any. ***ADDITIONAL INFO.*** **CPD requirements** -before requires 15 units only but now is 45 units \- renewable for every three years (validity of 3 years on your birthday) **TWO KINDS OF ACCESSION FOR REAL PROPERTY (immovable)** 1. **Accesory** - thing or object added to the real property which is necessary to the property (example: door etc) 2. **Accession** - thing or object for embellishment or beautification of real property (not necessary , example: swimming pool, windmill etc) ***REGALIAN DOCTRINE*** **HISTORY OF REGALIAN DOCTRINE** \- During the Spanish period, the Philippines was conquered by Spain \- One of the modes of acquiring property is called **\"conquest\"** of the Spanish, so the regalian doctrine was introduced. \- Regalian doctine emanates from **\"Spanish law\"** **Regalian Doctrine** \- it comes from Spanish word **\"jura regalia\"** **SHALL MEMORIZE!!!** Regalian doctrine states that all lands of public domain belongs to the state and that the state is the source of any right to ownership and the state is charged with the conservation of its patrimony. All lands otherwise appearing to be within private ownership is presumed to belong to the state. **Why all lands of public domain belongs to the state?** Regalian means crown/monarchy/comes from the queen or king **How Regalian Doctrine works?** \- when the Philippines was conquered by the Spain, Regalian Doctrine was introduced, and by the means of conquest, all lands (entire Philippine archipelago)were now belong to the Spain. \- all lands are belong to Spain but the exemption is by giving **\"grant\"** **Shall remember!!!** **Grant** is the act by Spanish government in giving title to the private individual. **\* Regalian doctrine has been embedded in 1935 Philippine Constitution** \- by the means of treaty of Paris , Philippines was acquired by America, so all lands are now belong to United States government **\*1942** \- Japanese came here to the Philippines and conquered us **\* 1943 Philippine Constitution** \- time of Japanese \- Puppet government \- regalian doctrine still adapts **\*1945\*** -The hiroshima was bombed/they surrender \- Filipino gain their freedom from the Japanese government **\* 1973 Philippine Constitution** \- time of Ferdinand Marcos \- Regalian Doctrine still adapts **\*1987 Philippine Constitution** \- Regalian Doctrine also adapts ***\"All lands of public domain shall belong to the state\"*** \- lands of public domain can be found on 1987 Constitution, article 12, Section 2 \- will also be found on Article 419 of civil code of the Philippines **2 KINDS OF PROPERTY AS TO OWNERSHIP (will be found in article 419 of civil code and Article 12, section 2 of 1987 Constitution)** 1. **Public Domain/Public Property** \- all lands of public domain is belong to the state \- will be found in Article 420 of civil code and Article 12, section 2 of 1987 Philippine Constitution **2. Private Property** \- if the property is not public Dominion or patrimonial property, it is considered private property and it is owned by private person (article 425, civil code) **2 KINDS OF PROPERTY** 1. **Real Property** 2. **Personal Property** **DIFFERENCE BETWEEN PUBLIC DOMAIN AND PUBLIC DOMINION** **\* Public dominion** - act of ownership **\* Public Property**- property itself **Article 419 of Civil Code of the Philippines** Property is either of public dominion or of private ownership. **Article 420 of Civil Code of the Philippines** The following things are property of public dominion**: (Criteria for public property/public Dominion)** **(1)** Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character; \- **similar character** means even though the property is not mentioned on the article 420 , as longs as it is **(1) used for public use** and **(2) constructed by the state**, it is considered public Dominion. **(2)** Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth. **SHALL REMEMBER!!! - even the property is not for public use but for public service it is still public dominion** **SUMMARIZE:** Criteria for the property to be considered public dominion: (1) for public use(constructed by the state), (2) for public service, (3) for the development of the national wealth. **Art. 421 of the Civil Code of the Philippines** All other property of the State, which is not of the character stated in the preceding article, is **patrimonial property.** \- all properties belonging to the state without being part of article 420 shall be classified as patrimonial property \- when the property is not for public use, for public service and for development of national wealth, it is called patrimonial property, this still belongs to the state or to the Philippine government. **Art. 422 the Civil Code of the Philippines** Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State \- if the property is not longer intended for public use or for public service or the development of national wealth, it becomes **patrimonial property (still own by the state)** **Art. 425 of the Civil Code of the Philippines** Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private persons, either individually or collectively. \- if the property is not public Dominion or patrimonial property it is considered private property and it is owned by private person \- example: nlex, skyway (for public use but owned by private individual) **Article 12, Section 2 of 1987 Philippine Constitution.** -All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. **GENERAL RULE:** natural resources are still considered as public domain/owned by the state -The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. \- when having joint venture, it should be Filipino Citizen or if it is a corporation or partnership, it should have at least/minimum 60% is Filipino Citizen. -The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. **Article 12, Section 3 of 1987 Philippine Constitution.** **Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks** Alienable lands of the public domain shall be limited to agricultural lands. **Alienable** - can be sell (pwedeng ibenta) **Inallienable** - can\'t be sell ( di pwedeng ibenta) \***Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years**, and not to exceed one thousand hectares in area. **Citizens of the Philippines** may **lease not more than five hundred hectares**, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. \- if private corporations are leasing of alienable property , they can lease for at least 25 years, renewable for 25 years \- if not corporation, Filipino citizen, he can lease not more than five hundred hectares. **WHAT COMPRISES THE PROPERTY OF PUBLIC DOMAIN?** Article 420 of civil code, sec. 2 and sec. 3 of 1987 Constitution **WHAT COMPRISES THE PROPERTY OF PATRIMONIAL PROPERTY?** Article 421 of civil code **WHAT COMPRISES THE PROPERTY OF PRIVATE PROPERTY?** Article 425 of civil code **Article 12, Section 4, 1987 Philippine Constitution.** The Congress shall, as soon as possible, determine, by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such **forest lands and national parks shall be conserved and may not be increased nor diminished, except by law.** The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas. -forests and national parks shall be conserved and shall not increase or diminish without law. **Article 12, Section 5, 1987 Philippine Constitution.** The State, subject to the provisions of this Constitution and national development policies and programs, **shall protect the rights of indigenous cultural communities to their ancestral lands** to ensure their economic, social, and cultural well-being. \- the state shall protect the indigenous cultural communities by giving them the right over ancestral land (Kaya di nagagalaw dahil they have the right) **Ancestral domain** - Area generally belonging to an indigenous cultural community or indigenous people **Can you sell public property?** As a **general rule**, no, we can\'t sell public property **Exemption**: (1)if the property is already classified as patrimonial property (dating public domain na nareclassify na as patrimonial) (2)if it is agricultural **Rule for reclassification of property** \- the property remains public domain regardless if it is used or no longer used \- as long as the property is not reclassified by the government (Congress) then it will remain as public domain \- when the property is patrimonial, it can be sold if it is agricultural **REGALIAN DOCTRINE** Regalian doctrine states that all lands of public domain belongs to the state and that the state is the source of any right to ownership and the state is charged with the conservation of its patrimony. All lands otherwise appearing to be within private ownership is presumed the belong to the state. -the state is the source of any right to ownership and the state is charged with the conservation of its patrimony. (The state is the source of right to ownership because they give grant) -All lands otherwise appearing to be within private ownership is presumed the belong to the state. (All lands not acquired by the government shall belong to the state as part of public domain) (All lands not acquired by the government and also not from any private individual will still belong to the state because of the regalian doctrine) (Reason: Regalian Doctrine, Exemption: private individual) ***TORRENS TITLE*** **TORRENS TITLE** **- Act no. 496** **-** it was enacted or **signed November 6, 1902** \- it took **EFFECT Jan 1. 1903** **-** is introduced by **Richard Torrens** ( He is Australian land reformer) **TORRENS TITLE SYSTEM** \- is an arrangement of structure and set up apparatus for land registration \- process for land registration **WHAT IS THE PURPOSE OF TORRENS TITLE SYSTEM?** \- is for land owner or owner of real property to have conclusive title against the whole world **WHAT IS THE RIGHT OF LAND OWNER?** **\"In rem\" -** against the whole world Specific **: \"Jus in rem\" -** right against the whole world **DIFFERENCE BETWEEN JUS IN REM AND PERSONAL RIGHT** - **Jus in rem** - right against the whole world **Example**: I have a property in bicutan, the title of that property is under my name. Therefore, because of jus in rem or right against the whole world, no one shall build property at my exact property, or no one is allowed to tresspass etc. - **Personal Right -** right against an individual **Example:** My neighbor owes me money. I have a right to singilin my neighbor and I can\'t go to other people or someone related to my neighbor to collect the debt because the agreement is between us only. **TORRENS TITLE DEFINITION** **SHALL MEMORIZE!!!**- is the certificate of ownership establishing the rights of ownership of a certain person, whether natural or juridical, over the registered parcel of real estate. **SHALL REMEMBER!!!** - Certificate of Ownership is also commonly called as Certificate of Title (paper or the certificate, or the actual title). Certificate of Title proves ownership of the owner of the property. The owner could be natural person or juridical person (partnerships or corporation) **WHO ISSUES TORRENS TITLE?** **- Register of Deeds** (government agency that issues certificate of ownership or Torrens title) \- Register of Deeds **issues** certificate of title **where the property is located** Example: I am currently living in Parañaque but I have a property in Taguig. In this case, I will go the Register of Deeds of Taguig. They will be the one to issue certificate of title. **THREE KINDS OF TITLE** 1. **Original Certificate of Title** - is the first title issued by the register of deeds. 2. **Transfer Certificate of Title (TCT) -** is the subsequent issuance of title **Example:** You have a property in Batangas and you don\'t yet have a title. If you decide to title it in Register of deeds of Batangas, the title that will be issued to you is \"Original Certificate of Title (OCT)\" because it is the first time your property to have certificate of title. Once you sell that property and your friend purchases the property, for instance, your friend will transfer ownership of the property to his name. The title that will be given to him is referred to as a \"Transfer Certificate of Title (TCT)\" because you were the first owner and your friend is just the next owner. If your friend will sell again that property to others, the certificate of title is still TCT. Just only remember that all titles issued after the original are referred to as Transfer Certificate of Title (TCT). \*There are instances that the property is subdivided. For example, you just sell your backyard. For example you have an Aunt who wants to buy your backyard, the title that will be issued to her by the register of deeds is still Transfer Certificate of Title (TCT).\* 3. **Condominium Certificate of Title (CCT) -** if condominium is the property (even OCT or TCT , the title will be CCT. **2 TYPES OF Condominium Certificate of Title (CCT)** - **Vertical -** building **(example**: ayala, sm bc, avida**)** - **Horizontal -** pabahay or bahayan **RIGHT OF OWNERSHIP VS. CERTIFICATE OF TITLE** - **Right of ownership -** is a real right over the property - **Certificate of Title-** is a document that proves evidence of real right or ownership ( Example: OCT,TCT, CCT) **Example:** I have bought cellphone so I have now right of ownership over the cellphone. Therefore no one shall get it because it\'s my right against the whole world. My evidence of ownership in this cellphone is the receipt. If it is property, the evidence is a document ( OCT,TCT, CCT). **2 KINDS OF TITLING** 1. **Judicial Titling -** the owner must file petition in the court to acquire title over the property **What kind of court?** As **general rule**, you will go to the regional trial court **Exemption:** if the right is deligated to municipal trial court ( pinapasa na ng RTC sa MTC) 2. **Administrative Titling -** there is no need for the owner to go to the court for a title to be issued \- the owner must go to the administrative agency for titling **What administrative agency?** Department of Environment and Natural Resources (DENR) **THE MODES OF ACQUIRING TITLE TO THE PROPERTY (applicable to untitled properties)** 1. **Public Grant or Free Patent -** conveyance of public land by the government to private individuals \- public grant \- applicable to untitled properties Example : pabahay program (own by government) **HOW PUBLIC GRANT IS DONE\...** - Classify first if the property is urban or rural (maximum of 200 sq meters is government can give ) **Urban** - are developed cities (example: building, big hospitals, malls) **Rural** - properties are in provinces (mostly agricultural) - If it is **first class property**, it should not exceed **500 sq. meters** - If it is **second class property**, it should not exceed **750 sq. meters** - If it is **third class property**, it should not exceed **1000 sq. meters** - If it is **agricultural property**, the maximum government can give per person is **24 hectares.** 2. **Acquisitive Prescription** \- a person has open, continuous, exclusive, and notorious possession of the property Example: There is a property or lot that has no title so you live there for 10 years (continous 10 years). In this case, you can now title the property in your name by acquisitive prescription (angkinin). **SHALL REMEMBER!!** If the property is in bad faith (nagkakahabulan, maraming umaangkin), you should live there for 30 years. If you live there and the title is not under your name, you will be classified as illegal settlers or squatter. 3. **Accretion** - accrual of land deposit \- the property becomes bigger because of additional soil. \- gradual increase of property \- the additional land deposit will only be included in the title Example: your property is near the ocean , as the time pass by, the ocean moves, land becomes bigger 4. **Reclamation of portion of waters** - done by the government \- land filling the parts of the water by the government (dagat is tinambakan ng lupa ng government, example: Mall of Asia) \- land filling or yung tinambakan yung pinapatitle 5. **Voluntary Transfer -** private grant \- voluntary transfer to a private individual to another private individual (voluntary means out of your consent ) \- example: deeds of sale ( binili ang property and pumayag ang owner) 6. **Involuntary Transfer -** is the expropriation of the land of a private individual in favor of the state \- there is no consent on the part of the owner but the property is still acquured by the government \- example: Power of Eminent Domain 7. **Succession** - is the hereditary succession of the estate of the deceased owner. \- when the owner died and then it was given to you by him \- example: mana , will, testament 8. **Emancipation Patent** - these are given to the farmers \- government is the one who gives the property to the farmers \- example: Comprehensive Agrarian Reform Program **ORDINARY AND CADASTRAL LAND REGISTRATION** **ORDINARY LAND REGISTRATION** \- filed or initiated by private individual \- file judicial titling **CADASTRAL LAND REGISTRATION** \- filed by the government \- initiated by director of land registration authority (LRA) **ADDITIONAL INFORMATION** - **public domain/public land** - latin term **\"res nullius\"** means outside the commerce of men (hindi pwedeng ibenta) - Latin term **\"res communes\"** means within the commerce of men (pwedeng ibenta) ***DOCTRINE OF PARENS PATRIAE*** **DOCTRINE OF PARENS PATRIAE** - Parens Patriae is a Latin term - Parens Patriae is the parent of the country - The Doctrine of Parens Patriae will be found on **Article 2 of 1987 Philippine Constitution** (state declaration policy) and **Article 24 of civil code of the Philippines** - **ARTICLE 24 of Civil Code**: In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. - **Doctrine of Parens Patriae** is the duty of the state or the government as a parent of the country to protect those which are at disadvantage(dehado) because of ignorance, mental weaknesses, handicap (to protect their rights) **RELATION OF DOCTRINE OF PARENS PATRIAE IN REAL ESTATE** \- when the party, for instance in a sale, is in disadvantage like blind, bingi, pipi. is pipirma ng deeds of sale (pumasok sa kontrata). Doctrine of Parens patriae protects their rights. ***DOCTRINE OF ESCHEAT*** **DOCTRINE OF ESCHEAT** \- is a French term means accident or chance **- \"Escheat\"** is the right of the government to take ownership of unclaimed asset and property when an individual dies with no will and no heirs. ( Karapatan ng government na mabawi or babalik sa government ang property ng namatay na walang habilin o tagapagmana. **BASIS /PRINCIPLE OF ESCHEAT** \- is the Regalian Doctrine **3 REQUISITES OF ESCHEAT** 1. **Person died intestate** **2 KINDS OF TESTATE** - **Testate -** a person died with last will and testament - **Intestate -** a person died with no last will and testament 2. **The person left no heirs -** walang tagapagmana 3. **The deceased left properties** Escheat is filed by a petition. The one who files petition is the \" **solicitor general**\" (the lawyer of the government) **Where to file?** In Regional Trial Court where the deceased last resided. **What if the deceased is not resident of the Philippines?** File it in the Regional Trial Court where the property of the deceased is located **3 KINDS OF ESCHEAT** 1. **Involves real properties** 2. **Involves transfer of real properties in violation of constitution** 3. **Unclaimed deposits in the bank** **What law covers Escheat?** Rule 91 of the rules of the court **SHALL REMEMBER!!!** If ever na kakakuha palang ng government yung property at may humabol, pwede pa itong makuha pero within 5 years' time frame from the date of judgement If ever na nabenta ng government yung property, hindi na makukuha yung property pero babayaran sya kung anong halaga na naibenta ang property If ever na hindi pa naibenta na ng government, maaari pa itong mahabol ng heirs ang naiwang property but they need to pay the expenses of the government, idededuct ang expenses sa halaga ng property. ***THE POWER OF EMINENT DOMAIN*** **3 FUNDAMENTAL POWERS OF THE GOVERNMENT** 1. **Police Power** \- it is the power of the government to regulate the citizens 2. **Power of Taxation** \- Lifeblood Doctrine 3. **Power of Eminent Domain** \- also called \"expropriation\" \- use of the government of its coercive authority upon just compensation to forcibly acquire the needed property for public purpose. (power ng government na kunin ang property ng isang private individual para gamitin ng government for public purpose.) Example: kabahayan/lote na kinukuha ng government para gawing kalsada. **WHO MAY EXERCISE THE POWER OF EMINENT DOMAIN?** \- it is exercise by the congress (Senate and House of Representatives) but can deligated (ipasa) to the president, to national housing authority or to any government agency **WHERE CAN WE FIND THE POWER OF EMINENT DOMAIN?** **- Section 9 of Article 3 of the 1987 Philippine Constitution** **THE 5 REQUISITES OF THE EMINENT DOMAIN (SHALL MEMORIZE)** 1. **It should be private property** \- it should be owned by private individuals 2. **There should be necessity** \- necessity means the property to be taken should be necessary or vital to the citizens 3. **It should be for public use** \- it should benefit the public, for public service or for public welfare 4. **There should be payment of just compensation** \- dapat babayaran si public individual/owner sa kukuning property mula sa kanya. \- The property to be taken should be paid based on the CURRENT FAIR MARKET VALUE 5. **There should be due process** \- notice and hearing \- the owner must be notified and must be given the opportunity to present his case \- there should be process to follow in the court **SHALL REMEMBER!!** Even you are senator for instance, or you are in any government position, you are not allowed, if you will be the only one who will get the benefit. \- it should be always be paid the property to be taken on the current fair market value and not on assess value \- Even the owner is paid on the current fair market value, this will not still valid if the owner did not get an opportunity to present the case in the court. \- if the reason of an owner to reject his property to be taken is just he doesn\'t like or it has sentimental value to him. It is not allowed. But if the reason is the government lacks requirements to him and get his property, he can still contest or questions the government. **Is the owner allowed to repurchase the property?** \- Yes. The owner is allowed to repurchase the property. Example: there is a property that was taken by the government. It will be used to build train area. The government complied all the requirements for its to be taken. But after 10 years , the train area is not longer used because people are traveling now by subway for example. In this instance, is the owner of the property allowed to repurchase the property? Yes! **Here are the REQUISITES for the owner to repurchase the property** Provided that it is no longer use by the public It is already converted to patrimonial property **HOW MUCH WILL THE OWNER REPURCHASES?** \- the owner will buy the property based on the original price na binili sayo ng government or the amount set by the government \- not based on current fair market value ***MIRROR DOCTRINE*** As a **GENERAL RULE**, the law does not require a person dealing with a registered land to go beyond the certificate of title to determine the liabilities attached to the property (If a person will look in the certificate of title of a registered land. He did not need to determine liability.) Example: I will buy property. The owner has certificate of title (either OCT, TCT , or CCT). According to law and as a general rule, it is not needed to go beyond the title. It is enough that the owner has title and do not need to find any other documents to serve as a proof of ownership. **EXEMPTION:** if there is anything to excite suspicion on the certificate of title (may kaduda duda nakita sa title) SHALL REMEMBER!!! If the owner\'s certificate of title is shown no suspicion, he called \"Purchaser for value/Buyer in Good Faith\" **FOLLOWING REQUISITES FOR GOOD FAITH TO ATTACHED** 1. **The seller is the registered owner of the title** \- the name of the owner appears on the title **KINDS OF OWNER** ** Registered Owner** \- the name of the owner appears in the title ** Legal Owner** \- is the person who has the right over the property ** Beneficial Owner** \- the person who actually uses the property \- who benefits the property 2. **The seller has possession over the property** \- dapat nakatira doon ang owner or may bakod 3. **At the time of the sale, the buyer is not aware of any defect in the title of the seller** Example: - the property is in mitigation, has case, nakapangalan nga yung property pero iba nakatira or may naghahabol pala sa property **IF THE BUYER IS NOT IN GOOD FAITH THEREFORE, THE BUYER** \- should investigate and exercise a higher degree of diligence \- history of the property **Special Power of Attorney Vs. General Power of Attorney** **Two kinds of power of attorney** 1. Generic power of attorney (GPA) 2. special power of attorney (spa) **Who are the parties in the contract?** 1. **Principal** - one who has the power for the owner who gives the power or transfer the power 2. **Attorney in fact** - he is the agent of the principal or the one who has given the responsibility or the power Example : I have property and gusto ko ipabenta kay Heart na aking kapatid. In this case, I am the Principal and attorney in fact is si heart. **Generic power of attorney and special power of attorney difference** GPA talks about acts of administration while SPA talks about acts of ownership **ACT OF OWNERSHIP (SPA)** \- every action or right which involves ownership of the real property should be governed by act of ownership **ACT OF ADMINISTRATION (GPA)** \- involves day to day transactions \- normal force of transaction **Example:** **ACT OF OWNERSHIP (SPA)** \- sale of property \- mortgage of property \- leasing of property \- patungkol sa pag aari, pag binenta mo ay iba na ang may ari **ACT OF ADMINISTRATION (GPA)** \- you paint the property blue \- renovate the property \- lagyan ng bubong or palitan ng bubong **WHAT WILL PREVAIL?** Example: In the title ,it is SPA or act of ownership but in the content, nakalagay is you should cut the trees around the property. In this case, there seems to be conflict because the content act of administration or should be GPA and it\'s not alligned with the title. **WHAT IS RULE IN THIS CASE BETWEEN TITLE and CONTENT?** 1. You try to harmonize (try to deeply understand, baka nagkamali lang ng sulat or what) 2. The content and intention will prevail **PWEDE BA PAGSAMAHIN ANG GPA and SPA?** The answer is YES Example: I, Rea Cutie, hereby authorize Heart to sell my property (this is SPA) and to remove the light in my house (this is GPA) **As to formality, the gpa and SPA should be:** 1. It should be writing 2. It should be signed by the principal 3. It should be notarized \- public instrument 4. It should be accepted by attorney in fact -acceptance 5. It should be specified the powers and responsibilities \- indicate specifically what action should take or should be done of the attorney in fact **The consent of a person to be attorney in fact are:** 1. **Expressed** - authority in the fact signed the SPA or GPA documents 2. **Implied** - attorney in fact did not sign but is acting to accept SPA or GPA Example: di nya pinirmahan pero binenta or ginawa nya (because of action, he proves that he accepted it) **Classification of GPA and SPA** Gpa and Spa are classified as: 1. **Revocable** - The principal may terminate the GPA or SPA without consent of the agent (any time pwede palitan or irevoke ni principal ang content sa SPA or GPA like Hindi nya papakulayan ng color blue ung bahay kase narealize nya di magiging bagay, or Kaya naman ayaw nya na ipabenta ang bahay kase Sabi ng mama nya wag.) 2. **Irrevocable -** the principal cannot terminate SPA and GPA without consent of the agent (kailangan pumayag si agent para matanggal ang SPA or GPA **VALIDITY of SPA or GPA** \- there is no expiry \- it remains to be valid until revocation **ANOTHER WAY TO PUT AN END OR EXTINGUISHED THE SPA or GPA is by:** 3. Fulfillment of the duty - kapag natapos na ang power binigay, tapos na Rin 4. Death - pag namatay si principal, terminated na ang SPA or GPA **FORMALITIES OF SPA** \* If the principal is outside the country, the document should be consularized or apostilled **Consularized** - inotary and consulate it in Philippine embassy **Apostilled** - Hindi na dadaan sa embassy, dumadaan sa government ng country where principal is located Example: punta sa government ng America, apostil in Philippines for it to be valid. \- authenticated by foreign government **ARE FOREIGNERS ARE ALLOWED TO OWN REAL PROPERTY IN THE PHILIPPINES?** \- as a general rule no. The BASIS Is under Article 12, Section 7, 1987 Philippine Constitution **ARE FOREIGNERS ARE ALLOWED TO OWN PERSONAL PROPERTY IN THE PHILIPPINES?** \- yes, personal property like cellphone, computer **Exemptions:** 1. **By succession (mana)** Ex. Ang foreigner is may asawa at namatay ang wife nya and pinamana sa kanya ang real property, foreigner now is the owner of the real property. **2 kinds of Succession** **\* Testate -** a person died with last will and testament **\* Intestate** - a person died with no last will and testament 2. **If the acquisition is made by former natural born citizen** Filipino citizens - may be naturalized o \- may be natural born **Exemptions:** There is limitation on the sizes of the property **Under 1987 Philippine Constitution, former natural born can own:** \* If the property is Urban (cities), the maximum is 1000 sq. meters \* If the property is rural (provinces), the maximum is 1 hectare/10,000 sq. meters **According to the liberalized foreign investment act/ RA 8179, former natural born can own:** \* If the property is Urban (cities), the maximum is 5000 sq. meters \* If the property is rural (provinces), the maximum is 3 hectares 3. **Condominium Units - foreigners are allowed to own condominium** What the reason behind? Condominium units is not real property, this is only space 4\. Dual citizenshiip Example: Clarkson, he can own property because of his dual citizenship **HOW ABOUT CORPORATIONS? CAN THEY OWN PROPERTY?** The answer is it depends **Requirements:** At least 60% Filipino (Sec. 7, Art. XII, 1987 Constitution) **ARE CORPORATIONS ARE ALLOWED TO LEASE REAL PROPERTY?** Yes, the maximum period is 99 years **HOW ABOUT FOREIGN CORPORATIONS, ARE THEY ALLOWED TO LEASE REAL PROPERTY IN THE PHILIPPINES?** Yes, the maximum period is 50 years, renewable once a year /additional 25 years **Rent Control Law or RA 9653** **Section 1 - title :** "Rent control act 2009" **SEC. 2. Declaration of Policy**. -- It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring the free flow of information to promote innovation and growth. **Section 3 :** **\"Rent\"** shall mean the amount paid for the use or occupancy of a residential unit whether payment is made on a monthly or other basis. ***- rent control shall only be applicable to residential unit*** **\"Residential unit\"** shall refer to an apartment, house and/or land on which another\'s dwelling is located and used for residential purposes and shall include not only building houses, dormitories, rooms and bedspaces offered for rent by their owners, except motels, motel rooms, hotels, hotel rooms, but also those used for home industries, retail stores or other business purposes if the owner thereof and his or her family actually live therein and use it principally for dwelling purposes. ***- if the property is for commercial purposes, the family or the owner is dwelling, it is considered residential unit.*** Ex. (*Sari sari store(tindahan) commercial purposes pero dun rin nakatira),* it is residential unit. **Definition of Lease** The contract between lessee and lessor is called **contract of lease** **\"Lessee\"** shall mean the person renting a residential unit. **\"Owner/Lessor\"** shall include the owner or administrator or agent of the owner of the residential unit. **\"Sublessor\"** shall mean the person who leases or rents out a residential unit leased to him by an owner. -is a person who rents out property lease to him **\"Sublessee\"** shall mean the person who leases or rents out a residential unit leased to him by an owner. -is a person who rents out a property from the sublessor **\"Sublessee\"** shall mean the person who leases or rents out a residential unit from a sublessor. Example: "Dj is a lessor who rent a property and Rea Mae is the lessee who rent the property, when Rea Mae as a lessee also rent the said property to Yoshiro. Rea Mae will become a sub lessor- and Yoshiro will be the sub lessee." Take note: The **government agency** which has authority or control over regulation of rent control act is the Department of Human Settlement and Urban Development\" **Following are covered of rental control law:** It should be: 1. Residential unit 2. monthly rent should not exceed 10,000php for highly urbanized city and within metro manila 3. If it is outside metro manila or property are not classified highly urbanized, it should be residential unit or it should not exceed 5,000php 4. to day pay rent it depends, it should be residential unit and it should not exceed 30,000 month Example 1: the property is highly urbanized it is being used as karinderya, and the rent is 8,000php (covered ?, no. because it is not a covered for residential purposed. ) Example 2: a propperty from las pinas it is being used for residential purpose, the monthly rent is 12,000php (covered, no. because the monthly rent is exceeds 10,000phh) Exxample 3: Not highly urbanized in Cavite the rent is 8,000php it is used for residential, not covered because it exceeds 5,000php. **Under the rent control law, the maximum increase of rent shall be the following:** 1 : if the rent is below 5,000php, 2% increased 2: if the rent is between 5,000 upto 8,999php, 7% maximum increased. 3: if the rent is between 9,000 to 10,000php, 11% maximum increased, paid annually. **RENTAL ADVANCE VS. RENTAL DEPOSIT** **- Rental advance** it will covered by the advance payment, Prepaid or *(hindi pa ginagamit binabayaran na)* **- Rental deposi**t, shall be used to pay unpaid utility bills, rent, etc. **Purpose of Rental Advance** -Prepaid -it will shoulder the rent that is unused. **Purpose of Rental Deposit** -it will shoulder expenses -unpaid utilities *-walang utility bills, need ibalik to the rental should be return to the owner*. As the **general rule**, Sublessee is not allowed **Exemptions:** if it is agreed by the parties u **Civil code of the Phil. is republic act 386** -took effect, Aug 30 1950 **Family Code of the Philippines** -is separate from civil code, -still under civil law -Created law: Executive order 209 -took effect, Aug 3 1988 **[Why is it important to know the effectivity?]** -It is important for us to determine the property regime between the husband and wife. \*To know who is the owner of the property regime **Property regime/ property relations?** -A property regime is **the set of rules agreed upon by the parties, before getting married**, which would govern their property relations during the course of their married life. Example: Single- he is the solely owner of the property Married- the determination of being an owner of the property is based upon the agreement. **Marriage Settlement/ Prenuptial Agreement** **Requirements for a valid marriage settlement:** 1. It should be made prior to marriage- *(pinirmahan bago ang kasal, hindi pwede habang kinakasal sila)* 2. It should be in writing 3. It should be signed by the parties (future husband & wife) 4. It should be registered in the civil registry and registry of deeds 5. It should include in the terms and conditions of the agreement. **As the general rule**, once the marriage settlement is made, the parties cannot change the marriage settlement during the marriage. **Example \#1** : *"bago ikasal, pinili ng mag- asawa ang Absolute community of property and for an instance, merong nagdamot sa isa sa kanila. This case is* **NOT ALLOWED** **Except**: by the order or decision of the court. The court may order a complete separation of the court. **Example \#2:** There is a marriage with valid and registered marriage settlement of spouse, and it turns out that someone didn't attend b **SHALL REMEMBER!** - **Is it okay for the future spouse to not make a marriage settlement?** YES, because the it is only a privilege between the parties. - If there is a marriage settlement **BEFORE** the effectivity of this Act (August 3, 1988), the default(standard) property will be **conjugal partnership of deeds**. - If there is a marriage settlement **AFTER** the effectivity of this Act, the default(standard) property will be **Absolute community of property** **donation propter nuptias** **--** donation by the reason of marriage. **Example:** Lozano and Ayco has a marriage, because of generosity of Elcid, he donated them a property/ car as gift. **4 kinds of property regime.** 1. **Absolute community of property** - **Separate property/ exclusive property** 1. **Is property acquired during the marriage by gratuitous title except when the donor or the grantor provides otherwise.** 2. **Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage.** (descendants means person who is related to you.) 3. **Property for personal exclusive use except jewerly.** Example: Kahit na kasal sila, yung mga personal property like cellphone, underwear is Hindi part ng community property, except jewelry, meaning to say, pag aari ng mag asawa ang mga jewelry ng isat isa. **REVIEW:** The absolute community of property between spouses starts from the time the marriage is celebrated. It cannot be modified during the marriage; hence, any agreement must be done prior to contracting the marriage (Article 88, Family Code). Under the regime, all properties owned by the spouses before the marriage and those that they acquire during the marriage shall form part of the absolute community and is shared equally by husband and wife (Article 91, Family Code). As a general rule, any property acquired during the marriage is presumed to belong to the community, unless it is shown that it is excluded in the following: - Property acquired during the marriage by gratuitous title such as by way of donation or inheritance unless the donor testator or grantor provides that they shall form part of the community property. So, if one of the spouses inherited a property during the marriage, his/her future spouse will not co-own that property as well as the fruits and income therefrom. - Property for personal and exclusive use of either spouse. Jewelry is not considered excluded under this; hence, it is part of the community property. - Property acquired before the marriage if the acquiring party has legitimate descendants (children, grandchildren) by a former marriage. The fruits and income of such property are also excluded. **(Source: https://www.divinalaw.com/dose-of-law/absolute-community-of-property/)** 2. **Conjugal partnership of gains** 1. If it is agreed by the parties in marriage settlement 2. If the marriage is celebrated prior to the effectivity of family code Ex. May property si Anna sa tagaytay, may property si Pedro sa batanggas kinasal Sila at nakabili Sila ng property sa parañaque Ang property ni Anna at Pedro ay sakanila lang. Pero Ang property nila sa parañaque ay sakanilang dalawa na kapag pinili nila sa marriage settlement is conjugal partnership of gains **EXCLUSIVE PROPERTY OF EACH SPOUSE** The following items form part of the exclusive property of each pose: \(1) That which is brought to the marriage as his or her own; \(2) That which each acquires during the marriage by gratuitous title (through pure liberality, as in donation and testate/intestate succession); \(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and Barter means goods in exchange of goods 4. That which is purchased with exclusive money of the wife or of the husband. \- kahit na kasal, ang pinambili ng property ay pera lang ng wife for example, sa wife lang Ang property. 3. **Complete separation of property** When is it applicable? 1. Pag merong marriage settlement 2. Pag may order ang court, there is complete seperation of property if the property is owned by the spouses before the marriage or acquired during marriage is completely exclusive or separated. COMMON LAW SPOUSE / COMMON LAW MARRIAGE -live in \- in the Philippines, we didn\'t recognize or consider na mag asawa PAANO KAPAG MAY NABILI NA PROPERTY ANG MAGKA LIVE IN? \- the rule in case of marriage settlement, the rule in co-ownership will be applied Kung may property sila before mag live in, kapag naglive in na sila, separate pa rin ang property \- pag live in na sila at may nabiling property is covered by rule of co ownership, paghahatian ng babae at lalaki \- paano yung property prior to cohabitation, it remains exclusive -acquired if they choose the complete separation of property. \- if it is ordered by the court. -if the property owned by the spouse before or acquired during the marriage are exclusively owned by either spouse. Common law spouse. Common law marriage. (Live in) In the pH we don\'t recognize common law marriages or live in. THE RULES ON CO OWNERSHIP- Incase they acquired property while they lived in. Prior to common cohabitation remains exclusive. **4. Mixed property regime Marriage settlement.** \*Prenuptial agreement \*Agreement between the future spouse fixing the property regime that should govern during their marriage. Requirements of valid settlement. 1\. It should be made prior to marraige. 2\. It should be in writing 3\. It should be signed by the parties. 4\. It should be registered in the civil registry and registry of deeds. 5\. It should include the terms and conditions of the agreement. as a general rule: once the marriage settlement made the parties cannot change the marriage settlement during marriage except by order of the court. The court can order complete separation of the property. They are allowed not to make marriage settlement. If the marriage is celebrated before the took effect of family code it will be conjugal of property gains. (Without marriage settlement) If the marriage is celebrated after the family code it will be an absolute community of property. (Without marriage settlement) **JUDICIAL SETTLEMENT OF ESTATE AND EXTRA JUDICIAL SETTLEMENT OF ESTATE** **- once a person dies, there are only 3 things in life is permanent** 1. **Changes** 2. **Taxes** 3. **Death** **Estate - the property of the person who dies will go to the estate** **Decedent- namatay na tao**