CASE STUDY ON SALE OF A PARAPHERNAL PROPERTY :
A couple of weeks ago, I came across a case of an inherited property being sold by 9 siblings who are now all living abroad and are married. Several points to address are :
1) Are the spouses of the siblings required to sign the Deed of Absolute Sale ?
2) Is the property a conjugal property ?
3) What is the legal process to proceed with the sale ?
4) Section 4, Rule 74 Rules of Court is annotated in the Transfer Certificate of Title – how do we cancel that ?
Since this is a sale of property, take note that it will go through the Bureau of Internal Revenue and Register of Deeds, that’s given. I then proceeded to the Register of Deeds to find out if the property is paraphernal as if it is, then we just need to confirm the procedure. Not all municipalities have the same procedure so you really have to verify with the Register of Deeds ( in this case, Register of Deeds is the sensitive issue that’s why we address that foremost ).
When you verify this kind of matters, it’s natural that you bring all the necessary documents such as Transfer Certificate of Title, Tax Declaration and Certificate Authorizing Registration ( in this case, since it was an inheritance done in 1993 ( you have to be aware when the Family Code was revised and if needed, marriage certificates have to be produced ). Now here is what we were advised by the Register of Deeds :
1) Register of Deeds initially checks on the Transfer Certificate of Title to see the history of transfer in their records. In this case, upon checking, it was CLEAR that the property was an “Inheritance” to the siblings so it was immediately established that the property is “Paraphernal”, therefore no need for the spouses to sign.
2) So what is the next procedure ? In this case, one of the siblings will represent all the other siblings in finalizing the sale. We now prepare a Special Power of Attorney for that specific sibling to represent all the other siblings in selling the property ( the wordings have to be correct … i.e. To sell, transfer and convey my share on one parcel of land ……etc… To claim, receive, sign receipt for and take delivery of proceeds of the sale …. etc ). Should the check be issued to the sibling with the Special Power of Attorney, that should be specified also. This Special Power of Attorney has to be brought to the Philippine Embassy on the specific city where the Sellers live for consularization ( remember, it has to have the seal ! ).
3) A separate Special Power of Attorney to petition the cancel Section 4, Rule 74 Rules of Court also has to be prepared and brought to the Philippine Embassy for consularization.
4) In preparing the Deed of Absolute Sale, since the spouses are in the title ( XXX married to XXX ), we have to follow the same format in writing the names of the Sellers but the spouses don’t need to sign ( take note, other Register of Deeds may have a different procedure so you really have to confirm the process )
Well, for those that are undergoing or haven’t gone through this case, i hope this blog will help you in addressing the matter. Remember, it’s always best to ask the proper governing body !
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Robert G. Sarmiento Properties
Professional Affiliation :
Philippine Association of Real Estate Boards
Member, City of Taguig Real Estate Board 2016, 2017
Real Estate Broker’s Association of the Philippines
President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Brokers 2000-2015
San Juan Mandaluyong Chapter 1998, 1999
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