FUNDAMENTALS OF PROPERTY OWNERSHIP

REGALIAN DOCTRINE

All Lands of the public domain belong to the State.

"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.

With the exception of agricultural lands, all other natural resources shall not be alienated. 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.
x x x" [ Sec. 2, Art. XII ]

I. RIGHT TO OWN LAND

The right to own real estate in the Philippines is governed by:

A. Constitution (1987 Philippine Constitution) and

Art XII, Sec. 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Art XII, Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by
their act or omission they are deemed, under the law, to have renounced it.

Art XII, Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or
conveyed except to individuals, corporations or associations qualified to acquire or hold lands of the
public domain.

Art XII, Sec. 8. Notwithstanding the provisions of Section 7 of this article, a natural-born citizen of
the Philippines who has lost his Philippine citizenship may be transferee of private lands, subject to
limitations provided by law.

B. Other Special or Pertinent Laws

II. LANDS OF THE PUBLIC DOMAIN

1. Lands of the public domain are classified into
(1) agricultural,
(2) forest or timber,
(3) mineral, and
(4) national parks
 2. Alienable lands of the public domain shall be limited to agricultural lands.

3. Private corporations and associations may hold such alienable lands of the public domain only by
lease, for a period not exceeding 25 years, renewable for not more than 25 years and not to exceed
1,000 has.

4. Filipino citizens may lease not more than 500 hectares, or acquire not more than 12
hectares by purchase, homestead, or grant.

III. STEWARD CONCEPT OF OWNERSHIP

Ownership carries with it a distinct social obligation. As stewards of their land, owners are obliged to use
their properties to promote not only their interest but also the general welfare. When a person's landholdings
exceed the requirements of his needs, or their utilization is not conducive to general welfare, the state may
exercise its power to regulate and control ownership.

IV. BUNDLE OF RIGHTS THEORY

This refers to the rights or attributes which are inherent in, or appurtenant to ownership,
and include the rights

BUNDLE OF RIGHTS
to possess,
to use,
to the fruits
to dispose, and
to recover.

V. RESTRICTIONS OR LIMITATIONS TO BUNDLE OF RIGHTS

1. Government or Legal:
a. Zoning - refers to use restrictions in particular areas or the delineation of allowable uses
in particular areas.
b. Subdivision Regulations - requirements which must be complied within subdivision
projects, such as open spaces, development specifications, etc.
c. Police Power — the power of the state to regulate the use of the property
d. Building Code - regulations pertaining to specifications such as height, setbacks
e. Eminent Domain - the power of the State to take private property for public use upon
payment of just compensation.
f. Escheat - the reversion of private property to the State due to the intestate death of the
owner who is not survived by any heir.
g. Taxation - power of the State to impose and collect tax and other charges
 2. Contractual or Voluntary:
a. Lease Contract - the temporary surrender of the right to possess, use and enjoy in favor of
another person who pays a consideration.
b. Right of Way Easement - the right given to an owner of an adjoining land to pass or have
access thru another land.
c. Usufruct - conveyance of the right to enjoy the fruits of the property.
d. Use Restrictions in Subdivision Contracts.

VI. ESTATE AND REAL ESTATE

Estate - refers to the totality of the assets owned by a person which includes real estate
and personal properties.

Real estate - refers to the land and all permanent improvements thereon.

VII. CONCEPT OF TITLE

“TITLE’ is not synonymous with Torrens Certificate of Title. It is a generic term which means
evidence or proof of ownership, such as tax declaration, realty tax receipts, deed of sale, and
Torrens Certificate of Title.

The best evidence of ownership of title is the Torrens Certificate of Title because it is
imprescriptible and indefeasible. A person is deemed to have title to a property when he can
exercise or has the bundle of rights over it.

VIII. MODES OF ACQUIRING TITLE

1. Private Grant - voluntary transfer or conveyance such as sale or transfer.

2. Public Grant - acquisition of alienable public land by homestead patent, free patent, sales patent, or
other government award.
3. Involuntary Grant - acquisition against consent of owner, such as foreclosure or
executive sale.
4. Inheritance - acquisition by hereditary succession.
5. Reclamation - filling of submerged land subject to government regulations and existing laws.
6. Accretion - acquisition of land adjoining banks of rivers due to gradual deposit of soil.
7. Prescription - acquisition of title by actual, open, continuous, and uninterrupted possession for
a period of time under claim of title.
-Ten (10) years in good faith and
-Thirty (30) years if in bad faith.
 FOREIGN OWNERSHIP OF REAL ESTATE – RIGHTS & LIMITATIONS

GENERAL RULE ON OWNERSHIP OF LAND

1. Only Filipino citizens

1. By birth
2. Naturalization Process
3. Act of Congress

Republic Act No. 10148

An Act Granting Philippine Citizenship to Marcus Eugene Douthit

4. Repatriation
5. Dual Citizenship, and

2. Corporations or partnerships at least 60% of the capital of which is owned by Filipinos are entitled
to acquire land in the Philippines.

NOTE: FOREIGN OWNERSHIP OF HOUSE/IMPROVEMENTS

A foreigner may own a house and the improvements, which may be constructed on the land
owned by a Filipino [ e.g. under lease]

EXCEPTIONS

1. As exceptions to the general rule, alien acquisition of real estate in the Philippines is
allowed in the following cases:

a) Acquisition before the 1935 Constitution

b) Acquisition by hereditary succession ( LEGAL HEIR)
c) Purchase by aliens of not more than 40% of the units in a condominium project
d) Purchase by former natural born Filipino citizen, subject to the requirements or
limitations prescribed by law

Under Batas Pambansa Bilang 185 (B.P.185)

aa) Acquisition shall not exceed

- 1,000 square meters for urban land or
- 1 hectare for rural land to be used solely for residence of the buyer
WHAT IS URBAN LAND?

Urban land shall refer to land located in an urban area. The urban areas shall include:
(1) In their entirety, all municipal jurisdictions which, whether designated or not as chartered
cities, provincial capitals, have a population density of at least 1,000 persons per square
kilometer;
(2) Poblaciones or central districts of municipalities and cities which have a population density of
at least 500 persons per square kilometer;
(3) Poblacion or central districts (not included in 1 and 2 above) regardless of population size
which have the following:
(a) A street pattern, i.e., a network of streets in either at parallel or right angle orientation;
and
(b) At least six establishments (commercial, manufacturing, recreational and/or personal
services); and
(c) At least three of the following:
1. A town hall, church or chapel with religious services at least once a month;
2. A public plaza or cemetery;
3. A market place or building where trading activities are carried on at least once a week;
and
(d) Barangays having at least 1,000 inhabitants which meet the conditions set forth in the
preceding subparagraph [sub-par. (3)] and in which the occupation of the inhabitants is
predominantly other than farming or fishing.

Rural lands shall refer to land located in a rural area. The rural areas shall refer to all areas of the
Philippines which do not meet the conditions set forth in the definition of urban areas found in the
immediately preceding paragraph (par. 3) of this Section. ( Sec. I, IRR, BP 185)

bb) In case of married couples, one or both of them may avail of the privilege provided that the total
area shall not exceed the maximum limit.

cc) When the transferee already owns urban or rural lands for residential purpose, he shall be
entitled to acquire additional urban or rural land for residential purpose which, when added to
those already owned by him, shall not exceed the maximum area allowed by law.

BP 185: Mechanics for registration of transfer

No deed of conveyance in favor of a transferee under Batas Pambansa Blg. 185 shall be registered by
the Register of Deeds unless accompanied by a sworn statement showing the
1 . dat e and pl ace of t he tr ansf er ee's bi r t h;
2 . names and addresses of his parents, of his spouse and children, if any;
3 . area, location and mode of acquisition of his landholdings in the Philippines, if any;
4 . his intention to reside permanently in the Philippines;
5 . date he lost his Philippine citizenship, and
6 . country of which he is presently a citizen.
The sworn statement hereinabove mentioned shall be in addition to the documentary requirements
prescribed as prerequisites for the registration of titles under existing law, rule and regulation_ (Sec. 4,
1RR, BP 185)

Under Foreign Investment Act of 1991

c) Any natural born citizen who has lost his Philippine citizenship and who has the legal capacity to
enter into a contract under Philippine laws may be a transferee of a private land

aa) up to a maximum area of five thousand (5,000) square in the case of urban land or three (3)
hectares in the case of rural land to be used by him—for- business or other purposes.

bb) In the case of married couples, one of them may avail of the privilege herein granted: Provided,
That if both shall avail of the same, the total area acquired shall not exceed the maximum herein
fixed.

cc) In the case the transferee already owns urban or rural land for business or other purposes, he
shall still be entitled to be a transferee of additional urban or rural land for business or other
purposes which when added to those already owned by him shall not exceed the maximum areas
herein authorized

dd) A transferee under this Act may acquire not more than two (2) lots which should be situated in
different municipalities or cities anywhere in the Philippines: Provided, That the total land area
thereof shall not exceed
- five thousand (5,000) square meters in the case of urban land or
- three (3) hectares in the case of rural land
- for use by him for business or other purposes.

A transferee who has already acquired urban land shall be disqualified from acquiring rural land and
vice versa". (Sec. 10, RA 7042 as amended by R.A. 8179, Approved March 28, 1996)

IMPLEMENTING RULES AND REGULATIONS OF 7042

(As amended by Republic Act No. 8179)

SECTION 5. Land acquired under this Act shall be primarily, directly and actually used by the transferee in
the performance or conduct of his business or commercial activities in the broad areas of
1. agriculture,
2. industry and
3. services,
4. including the lease of land,

but excluding the buying and selling thereof.

A transferee shall use his land to engage in activities that are not included in the Negative List or in those
areas wherein investment rights have been granted to him under this Act.

2. A Filipina who married an alien retains her Philippine Citizenship (unless by her act or omission she
is deemed under the laws to have renounced her Philippine Citizenship) and may therefore acquire
real estate in the Philippines.

3. A former natural-born citizen of the Philippines who became a citizen of another country and
reacquires Filipino citizenship under RA. No. 9225 (Dual Citizenship Law)

______________________________________________________________________

d. DUAL CITIZENSHIP LAW [ REPUBLIC ACT NO. 9225 ]

_
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN
CITIZENSHIP PERMANENT, AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63,
AS AMENDED, AND FOR OTHER PURPOSES

Be it enacted by the Senate and the House of Representatives of the Philippines in Congress
assembled:

SEC. 1. Short Title. — This Act shall be known as the "Citizenship Retention and Re-acquisition Act of
2003."

SEC. 2. Declaration of Policy. - It is hereby declared the policy of the state that all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine citizenship
under the conditions of this Act.

SEC. 3. Retention of Philippine Citizenship — Any provision of law to the contrary notwithstanding,
natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship
upon taking the following oath of allegiance to the Republic:

"I _________________________ solemnly swear ( or affirm ) that I will support and depend the
Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the
duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the
supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose
this obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectively of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship . — The unmarried child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.

SEC. 5. Civil and Political Rights and Liabilities. — Those who retain or reacquire Philippine citizenship
under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as
"The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign citizenship before any public authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath of allegiance to the
country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper
authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed
forces of the country which they are naturalized citizens.

SEC. 6. Separability Clause. — If any section or provision of this Act is held unconstitutional or invalid,
any other or provision not affected thereby shall remain valid and effective.

SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.

SEC. 8. Effectivity Clause. — This Act shall take effect after fifteen (15) days following its publication in
the Official Gazette or two newspapers of general circulation.

Approved. ________________________________________________________
EFFECTIVITY : SEPTEMBER 18, 2003
PUBLICATION : September 2, 2003 ( Manila Times and Today)
APPROVED BY GMA : August 29, 2003
X. PROPERTY ACQUISITION AND THE AFFIDAVIT OF WAIVER

REPUBLIKA NG PILIPINAS
KAGAWARAN NG KATARUNGAN

PANGASIWAAN SA PATALAAN NG LUPAIN

(LAND REGISTRATION AUTHORITY)
East Avenue cor. NIA Road
Quezon City

In RE: Consulta
REGISTRAR OF DEEDS FOR
PUERTO PRINCESA CITY
Petitioner CONSULTA No. 3543
CONSULTA No. 3554
X***********************X
RESOLUTION

May a Filipino who contracted marriage with an alien husband after the passage of the Family
Code and has acquired real property in the Philippines through a Deed of Absolute Sale register the
same in her own exclusive name? This is the very issue that this consulta seeks to resolve.

The instant case actually involves two (2) consultas. These consultas were consolidated considering that
although they were mistakenly docketed separately, they actually involve the same issues the same set
of documents sought to be registered, the same property and the same parties.

From the records of case, the facts are as follows:

On April 27, 1999, Nelly Rodriguez, A Filipino citizen, and Estratios N. Varsamos, a Greek
national, got married without an ante-nuptial agreement at the Greek Embassy in the country of Abu
Dhabi. That, sometime in July 4, 2002, Nelly Rodriguez-Varsamos bought a parcel of land described as
Lot No. 3787 of Pls-1117-D with an area of 20,355 sq. m. located at Bgy. Luzvminda, Puerto Princesa
City, covered by OCT No. 568 issued by the Register of Deeds of Puerto Princesa City. The Deed of
Absolute Sale executed by the registered owner, Joseph Ibanez Genon dated July 4, 2002 in favor of
herein petitioner, was presented for registration to the Registrar of Deeds who however entertained some
doubts as to its registration in view of Consulta No. 2738 promulgated on June 30. 2000, wherein this
Authority ruled against the registration of a sale in favor of a Filipino who is married to a foreigner on the
ground that, under the Family Code, In the absence of an agreed property regime, the spouses are deemed
to have adopted an absolute community property regime. Under this system, which supposedly makes the
foreigner spouse a co-owner of real property acquired by the Filipino spouse, the constitutional fiat
prohibiting aliens from acquiring lands in the Philippines should apply.

Hence, this Consulta.

 The seeming complication was brought about by the advent of Article 93 of the Family Code
which pertinently provides that:

Art. 93. Property acquired during the marriage is presumed to belong to the community,
unless it is proved that it is one of those excluded therefrom.

From the aforequoted provision of law, it is clear that under the regime of absolute community, all
properties acquired during the marriage are presumed to belong to the community. Prescinding from that
basic principle, It is axiomatic that all properties acquired by either spouse during the existence of that
absolute community, shall be presumed to be co-owned by both spouses, such that a foreigner husband
married to a Filipino wife shall be a co-owner with respect to that property. That presumption of co-
ownership is however merely created by fiction of law. As a matter of fact, Article 90 of the Family Code
even provides that: "The provision on co-ownership shall apply to the absolute community of property
between the spouses in all matters not provided in this Chapter". However, that "[T]he partnership having
been created by law, it has no object and it is unsafe to extend it on pretext of tacit consent." (Gutierrez, 3d
Ed., vol. 1, p. 579. cited in Nable Jose vs. Nable Jose, 41 Phil. 713) "Which means that either of the
spouses holds merely an inchoate right over the co-owned property, a mere right of expectancy, because if it
will be discovered during the liquidation of the marriage that there is no absolute community property to be
divided, there will be no share for either husband or the wife" (supra). Moreover, as Article 93 of the Family
Code further provides, the presumption of co-ownership of properties acquired daring the existence of the
absolute community is a rebuttable one, "unless it is proved that it is one of those (properties) excluded
therefrom". Thus, if a Filipina spouse buys a certain real property in the Philippines under her name, she
acquired the same in her personal individual capacity and intends to put the same under her individual name,
not under the legal fiction of the absolute community. Stated otherwise, her marriage to an alien spouse
merely created a legal presumption of co-ownership which will not in anyway deprive her of her right to
acquire real properties in the Philippines in her own right.

A natural born Filipino citizen's right to acquire real property is a basic right enshrined in the
constitution_ In this regard, the interplay of four (4) basic constitutional provisions should be
enlightening, thus:

Art. XII, Sec. 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Art. XII, Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their
act or omission they are deemed, under the law, to have renounced it.

Art. XII, Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed
except to individuals, corporations or associations qualified to acquire or hold lands of the public domain.

Art. XII, Sec. 8. Notwithstanding the provisions of Section 7 of this article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship may be transferee of private lands, subject to
limitations provided by law.
 Certainly in the case at bar, there is no showing that the registrant Filipina spouse is not qualified to
own real property in the Philippines nor is it shown that she possesses any of the disqualification. The fact
that she married an Greek husband does not automatically make her Greek_ The constitution requires a
positive act of renunciation of citizenship, i.e., by naturalization in a foreign state or by taking an oath of
allegiance to a foreign country, before a Filipino citizen may lose his citizenship. None of these conditions
are obtaining in the instant case.

Applying now these constitutional provisions in relation to the Family Code provision cited above, it
goes without saying that if we deny registration of a Deed of Sale of land in favor of the Filipina spouse
by mere reason that it shall ultimately redound to the benefit of the absolute community which is partly
owned by her alien husband, we are necessarily putting a citizenship label on that absolute community
which, as discussed earlier, is a mere legal fiction of co-ownership. Certainly this is an absurd spectacle.
A regime of absolute community of property has no citizenship. This is not within purview of the
constitutional prohibition against aliens owning lands in the Philippines. We should not be confused that
here, it is the Filipina wife who is buying the land and not the absolute community regime

It is so fundamental in our jurisdiction that a mere statutory provision of law cannot constrict, delimit
or otherwise expand a basic constitutional principle. To deny the Filipina wife the registration of her Deed
of Sale is a direct affront on her basic constitutional right as it will unnecessarily constrict and unjustly
deprive her of her right to own lands in the Philippines. The Family Code over the Constitution in view of
the basic principle in law that the Constitution, being the supreme law of the land, all other laws must be
subordinate to it.

In addition, the denial of registration of a Deed of Sale of land in favor of the Filipino spouse
married to a foreigner is a great inequity which even the Constitution looks upon with disfavor. In this
regard, it is apropos to mention Section 8, Article XII of the Constitution which provides that even natural
born Filipino citizen who has lost his/her citizenship may still acquire lands or be a transferee of private
lands in the Philippines, subject to limitations provided by law. A still valid law - Batas Pambansa Bilang
185 - implements this constitutional provision as it allows a former Filipino citizen who has lost and/or
renounced his Filipino citizenship, to be a transferee of private land in the Philippines, subject to certain
limitations. Applying the statutory provision in the case at bar, we will be placing the Filipina registrant
who has not lost her citizenship nor renounced her Filipino citizenship at a rather iniquitous and lesser
standing if we deny registration of her title.

The Authority is not unaware that in the past, it has accepted practice that before a Filipina wife
married to an alien husband registers a real property under her name, the Registrar of Deeds, as a matter
of pre-requisite, requires that an "Affidavit of Waiver of Rights" executed by the foreigner a spouse must
also be presented. This authority finds that such requirement finds no basis in law as it directly collides
with Article 89 of the Family Code which provides that "no waiver of rights, interest - shares and effects
of the absolute community of property during the marriage can be made except in judicial separation of
property" or after the marriage has been dissolved or annulled". This provision precisely applies to
voluntary waiver, the reason being to avoid undue influence between the spouses, and does not, therefore,
affect judicial transfers. Thus, in the light of the foregoing ratiocination, we opine that the requirement of
such "Affidavit of Waiver of Rights" has become a mere surplus age as it serves no useful purpose, other
than being void.

WHEREFORE, in view hereof, this Authority rules and so holds that the Deed of Absolute Sale covering
transfer of Lot No. 3787, Pls-1117-D with an area of 20,355 sq. in. located at Bgy. Luzvminda, Puerto
Princesa City, covered by OCT No. 568 in favor of Nelly Rodriguez Varsamos, is registrable, provided, that
all other requirements for its registrability are complied with.

Consults No. 2738 and all other consultas inconsistent with this ruling are deemed abandoned and/or
superseded.

SO ORDERED.
Quezon City, Philippines, March 12 2003.
HON. BENEDICTO B. ULEP
Administrator

________________________________________________________________________________

XI. SELECTED SUPREME COURT CASES ACQUISITION OF LAND BY FOREIGNERS

1. G.R. No. L-630 November 15, 1947

ALEXANDER A. KRIVENKO vs. THE REGISTER OF DEEDS, CITY
OF MANILA, respondent and appellee.

PERTINENT PORTIONS OF DECISION IN ICRIVENKO vs. REGISTER OF DEEDS

"Section 7, Article XII of the 1987 Constitution states:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain.
Hence, they are also disqualified from acquiring private lands. The primary purpose of the constitutional
provision is the conservation of the national patrimony. In the case of Krivenko v. Register of Deeds, the
Court held:

Under Section 1 of Article XIII of the Constitution, "natural resources, with the exception of public
agricultural land, shall not be alienated," and with respect to public agricultural lands, their alienation is
limited to Filipino citizens. But this constitutional purpose conserving agricultural resources in the hands
of Filipino citizens may easily be defeated by the Filipino citizens themselves who may alienate their
agricultural lands in favor of aliens. It is partly to prevent this result that section 5 is included in Article
XIII, and it reads as follows:
"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned
except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain
in the Philippines."

This constitutional provision closes the only remaining avenue through which agricultural resources may
leak into aliens' hands. It would certainly be futile to prohibit the alienation of public agricultural lands to
aliens if, after all, they may be freely so alienated upon their becoming private agricultural lands in the
bands of Filipino citizens. x x x

xxxx

If the term "private agricultural lands" is to be construed as not including residential lots or lands not
strictly agricultural, the result would be that "aliens may freely acquire and possess not only residential lots
and houses for themselves but entire subdivisions, and whole towns and cities," and that "they may validly
buy and hold in their names lands of any area for building homes, factories, industrial plants, fisheries,
hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of
other uses and purposes that are not, in appellant's words, strictly agricultural." (Solicitor General's Brief,
p. 6.) That this is obnoxious to the conservative spirit of the Constitution is beyond question."

------------- 0 --------------

2.BORROMEO VS. DESCALLAR.

G.R. No. 159310, February 24, 2009

WHAT ARE THE RIGHTS OF A FOREIGNER WHO ACQUIRED LAND VS. FILIPINA
GIRLFRIEND IN WHOSE NAME THE TCT WAS PLACED UNDER

This is the issue discussed by the Supreme Court in the case of Borromeo vs. Descallar, G.R.
No. 159310, February 24, 2009.

The facts as stated in the decision are:

Jambrich, an Austrian arrived in the Philippines in 1983 being assigned in the country and was transferred to
Cebu and met and fell in love with a separated Filipina [ herein referred to as respondent ], with two kids
and who had no means of livelihood. Thereafter they bought their house and lots but the Register of
Deeds refused registration of the Deed of Absolute Sale on the ground that Jambrich was an alien and
could not acquire alienable lands of the public domain and therefore his name was erased and the titles
issued in the name of the Filipina.

In 1986, Jambrich sold his rights and interests in the said property to a Filipino buyer, Borromeo, [ the
petitioner in this case ] to pay for his debt but when Borromeo sought to register the deed of assignment,
he discovered that the titles to the lots have been transferred in the name of the Filipina and that the same
had been mortgaged.
The buyer, Borromeo then filed a complaint for recovery of the properties. The Filipina girlfriend claimed
that she bought it with her own funds and that Jambrich being a foreigner, was not entitled to own land in
the Philippines. The Regional Trial Court rendered a decision in favour of the buyer and declared him to
be the owner of the properties since the facts show that the Filipina had no means of livelihood or funds to
have bought the property.

The Filipina appealed and the decision was reversed by the Court of Appeals stating that the foreigner,
Jambrich, could not have acquired land being a foreigner.

The buyer, Borromeo, appealed by way of petition to the Supreme Court which stated the issues:
1. Who purchased the subject properties?
2. What is the effect of registration of the properties in the name of the Filipina?

In upholding the decision of the lower court, the Supreme Court stated:

The evidence presented showed that Jambrich had all the authority to transfer all his rights, interests and
participation in the subject properties by virtue of the Deed of Assignment to the buyer, Borromeo, as it
was shown that the funds to purchase the properties came from Jambrich, who was therefore the true
buyer of the property, and,

"Further, the fact that the disputed properties were acquired during the couple's cohabitation does not help
respondent. The rule that co-ownership applies to a man and a woman living exclusively with each other as
husband and wife without the benefit of marriage, but are otherwise capacitated to marry each other does not
apply. In the instant case, the respondent was still legally married to another when she and Jambrich lived
together. In such adulterous relationship, no co-ownership exists between the parties. It is necessary for each
of the partners to prove his or her actual contribution in the acquisition of property in order to be able to lay
claim to any portion of it. Presumptions of co-ownership and equal contribution does not apply."

As to the registration of the properties in the name of the Filipina, the Supreme Court said,

"It is settled that registration is not a mode of acquiring ownership. It is only a means of confirming the
fact of its existence with notice to the world at large. Certificates of title are not a source of right. The
mere possession of a title does not make one the true owner of the property xxxxxx This is the situation in
the instant case. Respondent did not contribute a single centavo in the acquisition of the properties. She
had no income of her own at that time, nor did she have any savings. She and her two sons were then fully
supported by Jambrich."

As to the capacity of Jambrich, being an alien, to acquire land, the Supreme Court said,

‘ xxxx the transfer of land xxx to Jambrich, who is an Austrian, would have been declared invalid if
challenged, had not Jambrich conveyed the properties to petitioner who is a Filipino citizen. xxxxxx

The rationale behind the Court's ruling in United Church Board for World Ministries, as reiterated in
subsequent cases, is this — since the ban on aliens is intended to preserve the nation's land for future
generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who
became Filipino citizens by naturalization or those transfers made by aliens to Filipino citizens.

As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there would be
no more public policy to be protected. The objective of the constitutional provision to keep our lands in
Filipino hands has been achieved."

------------- 0 --------------

3.MULLER VS. MULLER, G.R. No. 149625, August 29, 2006

IN RE: PETITION FOR

SEPARATION OF PROPERTY
ELENA BUENAVENTURA MULLER,
- versus -
HELMUT MULLER,

"Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain.
Hence, they are also disqualified from acquiring private lands. The primary purpose of the constitutional
provision is the conservation of the national patrimony. In the case of Krivenko v. Register of Deeds, the
Court held:
xxxx

Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity where it is clear
that he willingly and knowingly bought the property despite the constitutional prohibition.

Further, the distinction made between transfer of ownership as opposed to recovery of funds is a futile
exercise on respondent's part. To allow reimbursement would in effect permit respondent to enjoy the
fruits of a property which he is not allowed to own. Thus, it is likewise proscribed by law. As expressly
held in Cheesman v. Intermediate Appellate Court: x x x"

------------- 0 --------------

4.CHEESMAN VS. INTERMEDIATE APPELLATE COURT

G.R. No. 74833 January 21, 1991.
THOMAS C. CHEESMAN, petitioner, vs.
INTERMEDIATE APPELLATE COURT:

Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the
1973 Constitution ordains that, "Save in cases of hereditary succession, no private land shall be transferred
or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain." Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition_
Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he
acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right
or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him
was null and void_ In any event, he had and has no capacity or personality to question the subsequent sale
of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a
husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of
the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien
husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its
transfer or disposition. This is a right that the Constitution does not permit him to have.

As already observed, the finding that his wife had used her own money to purchase the property cannot, and
will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife
had used conjugal funds to make the acquisition, the considerations just set out to militate, on high
constitutional grounds, against his recovering and holding the property so acquired, or any part thereof. And
whether in such an event, he may recover from his wife any share of the money used for the purchase or
charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that
would be, in the premises, a purely academic exercise. (Emphasis added)

XII. LEASING OF REAL PROPERTIES BY FOREIGNERS [ SALIENT FEATURES ]

REPUBLIC ACT NO. 7652

AN ACT ALLOWING THE LONG-TERM LEASE OF PRIVATE LANDS BY FOREIGN
INVESTORS

Section 1. Title. — This Act shall be known as the "Investors' Lease Act."

Sec. 2. Declaration of Policy. — It is hereby declared the policy of the State to encourage foreign
investments consistent with the constitutional mandate to conserve and develop our own patrimony.
Towards this end, the State hereby adopts a flexible and dynamic policy of the granting of long-term lease
on private lands to foreign investors for the establishment of industrial estates, factories, assembly or
processing plants, agro-industrial enterprises, land development for industrial, or commercial use,
tourism, and other similar priority productive endeavors.

Sec. 3. Definitions. — For purposes of this Act, unless the context indicates otherwise, the term:
(1) "Investing in the Philippines" shall mean making an equity investment in the Philippines through
actual remittance of foreign exchange or transfer of assets, whether in the form of capital goods, patents,
formulas, or other technological rights or processes, upon registration with the Securities and Exchange
Commission; and

(2) "Withdrawal of approved investment" shall mean either: (a) the failure to operate the investment
project for any three (3) consecutive years; or (b) outright abandonment of the investment project at any
time during the approved lease period: Provided, That failure to pay lease rental for three (3) consecutive
months coupled with the failure to operate the investment project for the same period shall be deemed as
outright abandonment of the project.
Sec. 4. Coverage. — Any foreign investor investing in the Philippines shall be allowed to lease private
lands in accordance with the laws of the Republic of the Philippines subject to the following conditions:
(1) No lease contract shall be for a period exceeding fifty (50) years, renewable once for a period of
not more than twenty- five (25) years;
(2) The leased area shall be used solely for the purpose of the investment upon the mutual agreement
of the parties;
(3) The leased premises shall comprise such area as may reasonably be required for the purpose of
the investment subject however to the Comprehensive Agrarian Reform Law and the Local
Government Code.

The leasehold right acquired under long-term lease contracts entered into pursuant to this Act may be sold,
transferred, or assigned: Provided, That when the buyer, transferee, or assignee is a foreigner or a foreign-
owned enterprise, the conditions and limitations in respect to the use of the leased property as provided
for under this Act shall continue to apply.

Sec. 5. Limitations. — (1) Foreign individuals, corporations, associations, or partnerships not otherwise
investing in the Philippines as defined herein shall continue to be covered by Presidential Decree No.
471 and other existing laws in lease of lands to foreigners.

(2) Withdrawal of the approved investment in the Philippines within the period of the lease agreement
entered into under this Act, or use of the leased area for the purpose other than that authorized, shall
warrant the ipso facto termination of the lease agreement without prejudice to the right of the lessor
to be compensated for the damages he may have suffered thereby.
(3) Any lease agreement under this Act which is renewable at the option of the lessee subject to the
same terms and conditions of the original contract shall be interpreted to mean as renewable
upon the mutual agreement of the parties.
(4) In addition to the conditions for the renewal of a lease agreement after the period of fifty (50)
years as provided herein, the foreign lease shall show that it has made social and economic
contributions to the country.
(5) In the case of tourism projects, lease of private lands by foreign investors qualified herein shall
be limited to projects with an investment of not less than five million (5M) US dollars, seventy
percent (70%) of which shall be infused in said project within three years from the signing of the
lease contract. chan robles virtual law library

See. 6. Termination of Lease Contract. — The Secretary of Trade and Industry shall terminate any lease
contract entered into under the provisions of this Act, if the investment project is not initiated within
three (3) years from the signing of the lease contract

Approved: June 4, 1993

SUPREME COURT CASES INVOLVING
LEASE OF LAND/FOREIGNERS
Matthews vs. Taylor, G.R. No. 164584, [ June 22, 2009 ],
IS THE LEASE OF REAL PROPERTY IN THE NAME OF THE FILIPINA WIFE VALID
WITHOUT THE CONSENT OF THE FOREIGN HUSBAND?

It is not uncommon that real property is placed under the name of the Filipino wife who is married to a
foreigner inasmuch as a foreigner cannot own land in the Philippines save only in constitutionally
recognized exceptions. In such a case, may the Filipino wife lease out the property without the consent of
the foreign husband?

In the Supreme Court case of Matthews vs. Taylor, G.R. No. 164584, [ June 22, 2009 ], this issue was
raised wherein the Supreme Court resolved the issue of whether the contract of lease entered into by the
Filipino wife over real property is valid despite the absence of consent of the foreign husband. The facts
as stated in the decision are as follows:

"On June 30, 1988, respondent Benjamin A. Taylor (Benjamin), a British subject, married Joselyn C.
Taylor (Joselyn), a 17-year old Filipina. On June 9, 1989, while their marriage was subsisting, Joselyn
bought from Diosa M. Martin a 1,294 square-meter lot (Boracay property) situated at Manoc-Manoc,
Boracay Island, Malay, Aklan, for and in consideration of P129,000.00. The sale was allegedly financed
by Benjamin. Joselyn and Benjamin, also using the latter's funds, constructed improvements thereon and
eventually converted the property to a vacation and tourist resort known as the Admiral Ben Bow Inn.
All required permits and licenses for the operation of the resort were obtained in the name of Ginna
Celestino, Joselyn's sister.

However, Benjamin and Joselyn had a falling out, and Joselyn ran away with Kim Philippsen. On June 8,
1992, Joselyn executed a Special Power of Attorney (SPA) in favor of Benjamin, authorizing the latter to
maintain, sell, lease, and sub-lease and otherwise enter into contract with third parties with respect to
their Boracay property.

On July 20, 1992, Joselyn as lessor and petitioner Philip Matthews as lessee, entered into an Agreement
of Lease (Agreement) involving the Boracay property for a period of 25 years, with an annual rental of
P12,000.00. The agreement was signed by the parties and executed before a Notary Public. Petitioner
thereafter took possession of the property and renamed the resort as Music Garden Resort.

Claiming that the Agreement was null and void since it was entered into by Joselyn without his
(Benjamin's) consent, Benjamin instituted an action for Declaration of Nullity of Agreement of Lease
with Damages against Joselyn and the petitioner. Benjamin claimed that his funds were used in the
acquisition and improvement of the Boracay property, and coupled with the fact that he was Joselyn's
husband, any transaction involving said property required his consent."

Was the lease entered into by the Filipina wife without the consent of her foreign husband valid?

To this, the Supreme Court said,

"In fine, we are called upon to determine the validity of an Agreement of Lease of a parcel of land
entered into by a Filipino wife without the consent of her British husband. In addressing the matter
before us, we are confronted not only with civil law or conflicts of law issues, but more importantly,
with a constitutional question.
It is undisputed that Joselyn acquired the Boracay property in 1989. Said acquisition was evidenced by a
Deed of Sale with Joselyn as the vendee. The property was also declared for taxation purposes under her
name. When Joselyn leased the property to petitioner, Benjamin sought the nullification of the contract
on two grounds: first, that he was the actual owner of the property since he provided the funds used in
purchasing the same; and second, that Joselyn could not enter into a valid contract involving the subject
property without his consent. x x x"

Citing several decisions on the matter, the Supreme Court reiterated that, "The rule is clear and
inflexible: aliens are absolutely not allowed to acquire public or private lands in the Philippines, save
only in constitutionally recognized exceptions. There is no rule more settled than this constitutional
prohibition, as more and more aliens attempt to circumvent the provision by trying to own lands through
another. xxxxxx"

It therefore ruled, as follows:

xxxxxx

In light of the foregoing jurisprudence, we find and so hold that Benjamin has no right to nullify the
Agreement of Lease between Joselyn and petitioner. Benjamin, being an alien, is absolutely prohibited
from acquiring private and public lands in the Philippines. Considering that Joselyn appeared to be the
designated "vendee" in the Deed of Sale of said property, she acquired sole ownership thereto. This is
true even if we sustain Benjamin's claim that he provided the funds for such acquisition. By entering
into such contract knowing that it was illegal, no implied trust was created in his favor; no
reimbursement for his expenses can be allowed; and no declaration can be made that the subject
property was part of the conjugal/community property of the spouses. In any event, he had and has no
capacity or personality to question the subsequent lease of the Boracay property by his wife on the
theory that in so doing, he was merely exercising the prerogative of a husband in respect of conjugal
property. To sustain such a theory would countenance indirect controversion of the constitutional
prohibition. If the property were to be declared conjugal, this would accord the alien husband a
substantial interest and right over the land, as he would then have a decisive vote as to its transfer or
disposition. This is a right that the Constitution does not permit him to have.

In fine, the Agreement of Lease entered into between Joselyn and petitioner cannot be nullified on the
grounds advanced by Benjamin. Thus, we uphold its validity."
XIII. LIABILITY FOR CIRCUMVENTION
of Constitutional Prohibition on Foreign Ownership of Land

PETER T. DONTON, A.C. No. 6057 June 27, 2006

VS. ATTY EMMANUEL O. TANSINGCO

Pertinent provisions in the Decision

By his own admission, respondent admitted that Stier, a U.S. citizen, was disqualified from owning real
property. Yet, in his motion for reconsideration, respondent admitted that he caused the transfer of
ownership to the parcel of land to Stier. Respondent, however, aware of the prohibition, quickly rectified
his act and transferred the title in complainant’s name. But respondent provided “some safeguards” by
preparing several documents, including the Occupancy Agreement, that would guarantee Stier’s
recognition as the actual owner of the property despite its transfer in complainant’s name.

In effect, respondent advised and aided Stier in circumventing the constitutional prohibition against
foreign ownership of lands by preparing said documents.

WHEREFORE, we find respondent Atty. Emmanuel O. Tansingco GUILTY of violation of Canon 1 and
Rule 1.02 of the Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty.
Emmanuel O. Tansingco from the practice of law for SIX MONTHS effective upon finality of this
Decision.”
 SALIENT FEATURES OF THE FAMILY CODE AND PROPERTY RELATIONS

EFFECTIVITY OF THE FAMILY CODE : AUGUST 03, 1988

MARRYING Age Under the Family Code

Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage.

Also referred to as:

1. Age of Emancipation

• Emancipation takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of eighteen years. (Art. 234, FC as amended by RA 6809).

• Emancipation shall terminate parental authority over the person and property of the child who
shall then be qualified and responsible for all acts of civil life, save the exceptions established by
existing laws in special cases. (Art. 235, FC as amended)

2. Age of Majority (Art. 234 FC)

“USE OF NAME of A MARRIED WOMAN”

Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or
(2) Her maiden first name and her husband’s surname or
(3) Her husband’s full name, but prefixing a word indication that she is his wife, such as “Mrs.”
[New Civil Code]

EXCEPTION: No Change of Name in RENEWAL of PASSPORT (RA 8239)

[Supreme Court Case]: Remo vs. Secretary of Foreign Affairs, G.R. No. 169202, March 5, 2010

“x x x In the case of renewal of passport, a married woman may either adopt her husband’s surname or
continuously use her maiden name. If she chooses to adopt her husband’s surname in her new passport,
the DFA additionally requires the submission of an authenticated copy of the marriage certificate.
Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not
prohibit her from continuously using her maiden name. [17]

However, once a married woman opted to adopt her husband’s surname in her passport, she may
not revert to use of her maiden name, except in the cases enumerated in Section 6(d) of RA 8239. These
instances are: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since
petitioner’s marriage to her husband subsists, she may not resume her maiden name in the replacement
 passport. Otherwise stated, a married woman’s reversion to the use of her maiden name must be based
only on the severance of the marriage. x x x “

1. BASIS OF PROPERTY RELATIONS UNDER THE FAMILY CODE

Art. 74: Family Code
1. By marriage settlements executed before the marriage
2. By provisions of this Code
3. By the local custom

2. Property Relations that may be agreed upon by future spouses in a marriage settlement
a. Absolute Community of Property
b. Relative Community of Property or Conjugal Partnership of Gains
c. Complete Separation of Property
d. Upon any other regime that may be agreed upon

In the absence of marriage settlements or when the same are void, the property relations shall be
governed as provided for below. [Art. 75, FC]

3. Property Relations without Marriage Settlement

Before the Family Code CONJUGAL PARTNERSHIP OF GAINS

Under the FAMILY CODE ABSOLUTE COMMUNITY OF PROPERTY

(Effective August 3, 1988)

4. ESSENTIAL FEATURES OF THE TYPES OF PROPERTY RELATIONS

I. CONJUGAL PARTNERSHIP OF GAINS

Conjugal Partnership of Gains presupposes that there are properties which are to be considered
conjugal and therefore owned both by the husband and the wife, while there are those properties
which still belong exclusively to each of the spouses over which they exercise exclusive
ownership and administration.

CONJUGAL PROPERTIES

The following are considered conjugal properties:

(1) Those acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial or civil, due or received during the marriage from the common
property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner
of the property where the treasure is found;
 (5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each
kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154, 155, 159)

PRESUMPTION OF BEING CONJUGAL PROPERTY

Art. 116. All property acquired during the marriage, whether the acquisition appears to have been
made, contracted or registered in the name of one or both spouses, is presumed to be conjugal
unless the contrary is proved.

ADMINISTRATION AND ENJOYMENT OF CONJUGAL PROPERTY

Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court
by the wife for proper remedy, which must be availed of within five years from the date of the
contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected as
a binding contract upon the acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors.

EXCLUSIVE PROPERTIES

The following properties are considered as exclusive, paraphernal, or belonging only to one of the
spouse:
1. That which is brought to the marriage as his or her own;
2. That which each acquires during the marriage by gratuitous or lucrative title;
3. That which is acquired by right of redemption or by exchange with other property
belonging to only one of the spouse; and
4. That which is purchased with the exclusive money of the wife or the husband.
 The general rule is that conjugal properties cannot be alienated without the consent of both
spouses; while respect to exclusive properties, the owner thereof can alienate the same without the
consent of the other spouse.

EFFECTS OF SEPARATION IN FACT

Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal
partnership, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause,
shall not have the right to be supported;
(2) When the consent of one spouse to any transaction of the other is required by law,
judicial authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the separate property of both
spouses shall be solidarily liable for the support of the family. The spouse present shall, upon
petition in a summary proceeding, be given judicial authority to administer or encumber any
specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the
latter's share.

II. ABSOLUTE COMMUNITY OF PROPERTY

Absolute Community of Property presupposes that all present and future properties of the spouses
shall be considered as belonging jointly to the husband and the wife except the following:
1. Property acquired by gratuitous title by either spouse when it is provided by the donor or
testator that it shall not become part of the community property;
2. Property inherited by either husband or wife through the death of a child by a former
marriage, there being brothers and sisters of the full blood of the deceased child;
3. A portion of the property of either spouse equivalent to the presumptive legitimate of the
children by a former marriage; and
4. Personal belongings of either spouse.

The ownership, administration and usufruct of the community property pertain to the spouses
jointly.

WAIVER OF RIGHTS

Art. 89. No waiver of rights, shares and effects of the absolute community of property during the
marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been
dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided
 in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the
waiver to the extent of the amount sufficient to cover the amount of their credits. (146a)

PRESUMPTION OF ABSOLUTE COMMUNITY PROPERTY

Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it
is proved that it is one of those excluded therefrom.

OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND DISPOSITION OF

COMMUNITY PROPERTY

Art. 96. The administration and enjoyment of the community property shall belong to both
spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to
the court by the wife for proper remedy, which must be availed of within five years from the date
of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected as
a binding contract upon the acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (206a)

DONATION BY SPOUSE

Art. 98. Neither spouse may donate any community property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing or family distress.

III. COMPLETE SEPARATION OF PROPERTIES

If the spouses before the marriage agree on complete separation of properties, the separation may
refer to both present and future properties or it may be total or partial.

The ownership, administration and usufruct of those properties which are considered separate
pertain to the spouse to whom they belong.

Each spouse shall proportionately bear family expenses.

 RIGHT TO DISPOSE, POSSESS, ADMINISTER EXCLUSIVE PROPERTY

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other. To each spouse shall belong all earnings from his or
her profession, business or industry and all fruits, natural, industrial or civil, due or received during
the marriage from his or her separate property.

RIGHT OF SPOUSE OVER EXCLUSIVE PROPERTY

Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their
exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or her exclusive property
to the other by means of a public instrument, which shall be recorded in the registry of property of
the place the property is located. (137a, 168a, 169a)

Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone in court to litigate
with regard to the same.

SEPARATION OF PROPERTY DURING MARRIAGE

Art. 134. In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place except by judicial order. Such
judicial separation of property may either be voluntary or for sufficient cause. (190a)

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:
(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101;
(5) That the spouse granted the power of administration in the marriage settlements has abused
that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at least one year
and reconciliation is highly improbable.

IV. ANY OTHER REGIME

ex. Dowry system
 MARITAL CONSENT IN DEED OF SALE

1. Marital consent is required -

a) when the property relations between the spouses is one of absolute community and the
property is community property; or
b) when the property relations between the spouses is one of conjugal partnership and the
property involved was acquired by onerous title during the marriage at the expense of the
common fund.

2. Marital consent is NOT necessary —

a) when the property relations between the spouses is one of absolute separation; or
b) when the property relations between the spouses is one of conjugal
partnership and the property involved:
1. was brought into the marriage by either of the spouses
( property nomenclature )
➢ husbands’s exclusive property - capital
➢ wife’s exclusive property – paraphernal
2. was acquired by either of the spouses by inheritance; or
3. was acquired with exclusive funds of either of the spouses.

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other
as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired by both of them through their work or industry shall
be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired
during cohabitation and owned in common, without the consent of the other, until after the termination of
their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the
co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any
or all of the common children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all
cases, the forfeiture shall take place upon termination of the cohabitation. (144a)
COHABITATION WITH MARRIED PERSON — EFFECT ON PROPERTY ACQUIRED

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired
by both of the parties through their actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective contributions.

In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be
equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in such valid marriage. If the party who acted in
bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last
paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

LEGITIMATE AND ILLEGITIMATE CHILDREN

LEGITIMATE CHILDREN
Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that
of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument executed and signed by them before
the birth of the child. The instrument shall be recorded in the civil registry together with the birth
certificate of the child. (55a, 258a)

ILLEGITIMATE CHILDREN
Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise
provided in this Code.

SURNAME OF ILLEGITIMATE CHILD UNDER FAMILY CODE

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code.

The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.
Except for this modification, all other provisions in the Civil Code governing successional rights shall
remain in force. [ Art. 176]

AS AMENDED BY RA 9255
 REPUBLIC ACT No. 9255
February 24 2004

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR

FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209,
OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family Code of the
Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has been
1. expressly recognized by the father through the record of birth appearing in the civil
register, or
2. when an admission in a public document or
3. private handwritten instrument is made by the father.

Provided, the father has the right to institute an action before the regular courts to prove non-filiation
during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of
a legitimate child."

Approved: February 24 2004

_________________________________________________________________________________

REPUBLIC ACT. NO. 9858

AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS

BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE
PHILIPPINES, AS AMENDED

Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code of the
Philippines", as amended, is hereby further amended to read as follows:
"Art. 177. Children conceived and born outside of wedlock of parents who, at the time of conception
of the former, were not disqualified by any impediment to marry each other, or were so disqualified
only because either or both of them were below eighteen (18) years of age, may be legitimated."
"Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The
annulment of a voidable marriage shall not affect the legitimation." xxxxx x'

Approved: DEC 20, 2009

SELLING AND ENCUMBERING PROPERTY OF WARD

Petition of guardian for leave to sell or encumbered estate-

1. When the income of an estate under guardianship is insufficient to maintain the ward and his family, or
to maintain and educate the ward when a minor, or

2. When it appears that is for the benefit of the ward that is real estate or some part thereof be sold, or
mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some
productive security, or in the improvement or security of other real estate ward,

The guardian may present a verified petition to the court which he was appointed setting forth such facts,
and praying that an order issue authorizing the sale or encumbrance. [Sec. 1, Rule 95, Rules of Court]

PROCEEDS OF SALE : Court may order investment of proceeds and

direct management of estate -

The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any
other of his ward’s money in his hands, in real or otherwise, as shall be for the best interest of all concerned,
and may make such other orders for the

• Management
• Investment, and
• Disposition of the estate and effects, as circumstances may require

[Sec. 54, Rule 95, Rules of Court]

 SALE OF REAL PROPERTIES TO MINORS - IMPLICATIONS

CAPACITY TO GIVE CONSENT - IMPORTANCE

Art. 1327. The following cannot give consent to a contract:

(a) Unemancipated minors;
(b) Insane or demented persons, and deaf-mutes who do not know how to write. (1263a)

WHO IS A MINOR?
General Definition

In law, a minor is a person under a certain age — usually the age of majority — which legally demarcates
childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18.
"Minor" may also be used in contexts not connected to the overall age of majority; for example, the
drinking age in the United States is 21, and people below this age are sometimes referred to as "minors"
even if 18. The term underage is often used to refer to those under the majority, but may also refer to
persons who are under a certain age limit, such as the drinking age, smoking age, age of consent,
marriageable age, driving age, voting age etc., with these age limits often being different than the age of
majority. [ http://en.wikipedia.org]

Under the Family Code of the Philippines, EO 209 [ Effective August 3, 1988 1

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of twenty-one years.

Emancipation also takes place:

(a) By the marriage of the minor; or

(b) By the recording in the Civil Register of an agreement in a public instrument executed by the
parent exercising parental authority and the minor at least eighteen years of age. Such
emancipation shall be irrevocable. (397a, 398a, 400a, 401a)

But was amended by RA 68091 approved Dec. 13, 1989

"Art. 234.Emancipation takes place by the attainment of majority. Unless otherwise

provided, majority commences at the age of eighteen years."

CAPACITY TO ENTER INTO CONTRACT OF SALE — GENERAL RULE

Art. 1489. All persons who are authorized in this Code to obligate themselves, may enter into
a contact of sale, saving the modifications contained in the following articles.
 Where necessaries are those sold and delivered to a minor or other person without capacity to
act, he must pay a reasonable price therefor. Necessaries are those referred to in Article 290.
(1457a)

MINORS CANNOT ENTER INTO CONTRACT OF SALE OF REAL ESTATE ON THEIR OWN

HOW CAN MINORS ACQUIRE REAL ESTATE?

• SALE
• INHERITANCE LEGAL GUARDIAN
• DONATIONS

WHO IS A GUARDIAN?

"A guardian is a person lawfully invested with the power and charged with the duty of taking care of the
person and managing the property and rights of another person who, for defect of age, understanding, or
self-control, is considered incapable of administering his own affairs.

There are three kinds of guardians under the law:

(a) the legal guardian, who is such by provision of law without the need of judicial appointment, as
in the case of the parents over the persons of their minor children, or the father, or in his
absence the mother, with respect to the property of the minor children not exceeding P50,000.00
in value;

(b) the guardian ad litem, a competent person appointed by the court for purposes of a particular
action or proceeding involving a minor; and

(c) the judicial guardian, one appointed by the court over the person and/or property of the ward to
represent the latter in all his civil acts and transaction."

[G.R No. 139400. September 3, 2003.]

PEOPLE OF THE PHILIPPINES, appellee, vs. MAURICIO WATIWAT, appellant.

Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise
substitute parental authority over the child in the order indicated:

1) The surviving grandparent, as provided in Art. 214;

2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the
same order of preference shall be observed. (349a, 351a, 354a)
GENERAL RULE ON PARENTAL AUTHORITY under the Family Code

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their
common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial
order to the contrary.

PARENTAL AUTHORITY UPON PROPERTY OF CHILDREN

Chapter 4. Effect of Parental Authority Upon the Property of the Children [ Family Code]

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the
unemancipated common child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds P50,000, the parent
concerned shall be required to furnish a bond in such amount as the court may determine, but
not less than ten per centum (10%) of the value of the property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.

BOND
REQUIRED

A verified petition for approval of the bond shall be filed in the proper court of the place where the child
resides, or, if the child resides in a foreign country, in the proper court of the place where the property or
any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues
regarding the performance of the obligations referred to in the second paragraph of this Article shall be
heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute
parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules
on guardianship shall apply. (320a)
RULE 93 [ RULES OF COURT]

APPOINTMENT OF GUARDIANS

SECTION 1. Who may petition for appointment of guardian for resident.—Any relative, friend, or other
person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor
himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a
general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal
Administration of the United States in the Philippines may also file a "petition in favor of a ward thereof
and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an
isolated leper.

WHO OWNS PROPERTY/INCOME OF MINOR

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by
onerous or gratuitous title

1. shall belong to the child in ownership and

2. shall be devoted exclusively to the latter's support and education, unless the title or transfer
provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the
child's support and secondarily to the collective daily needs of the family. (321a, 323a) [ Family Code]

PRACTICES INVOLVING SALE OF REAL ESTATE TO MINORS

1. Actual purchase with money of the minor
2. Purchase of parents but placed in the names of the minor child/children
3. Sale of properties owned by the minor

1. Actual purchase with money of the minor

If money used is the money of the minor, say for example, inherited funds from ancestors or parents, the
critical factor would be to prove the source of money of the minor for purposes of taxation.

2. Purchase of parents but placed in the names of the minor child/children

Another common practice made by parents is to purchase property but the sale is placed under the
name of the minor directly.

Considerations in such kind of transaction:

a. Taxation Aspects- in this case, if it is found that the minor did not have any exclusive funds to
purchase the real property, the BM. may deem that there was a donation of the amount and
therefore, the same is also subject to donor's tax.
Section 99. Rates of Tax Payable by Donor. -

(A) In General. - The tax for each calendar year shall be computed on the basis of the net gifts made
during the calendar year in accordance with the following schedule:

If the net gift is:

Over But Not The Tax Plus Of the Excess Over

Over shall be
P 100,000 Exempt

P 100,000 200,000 0 2% P100,000

200,000 500,000 2,000 4% 200,000

500,000 1,000,000 14,000 6% 500,000

1,000,000 3,000,000 44,000 8% 1,000,000

3,000,000 5,000,000 204,000 10% 3,000,000

5,000,000 10,000,000 404,000 12% 5,000,000
10,000,000 1,004400 15% , ,000
, ,

b. Future Sale Requirements — In case the property is placed in the name of the minor and the
parents would decide to sell the property, to be for example, reinvested a better property, a court
order must be obtained for the sale of the property and the court will order what to do with the
proceeds of the sale, such as requiring that it be deposited in a trust account in favor of the minor
and any use of said funds may still be subject to the approval of the court.

RULE 95 [ Rules of Court ]

SELLING AND ENCUMBERING PROPERTY OF WARD

SECTION 1. Petition of guardian for leave to sell or encumber estate.—When the income of an estate under
guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a
minor, or when it appears that it is for the benefit of the ward that is real estate or some part thereof be sold,
or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some
productive security, or in the improvement or security of other real estate of the ward, the guardian may
present a verified petition on the court by which he was appointed setting forth such facts, and praying that
an order issue authorizing the sale or encumbrance.

SEC. 2. Order to show cause thereupon.—If it seems probable that such sale or encumbrance is
necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of
the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified
to show cause why the prayer of the petition should not be granted.

SEC. 3. Hearing on return of order. Costs.—At the time and place designated in the order to show cause, the
court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested,
together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward
require. The court shall make such order as to costs of the hearing as may be just.

SEC. 4. Contents of order for sale or encumbrance, and how long effective. Bond — If, after full
examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate,
or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be
expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the
putting of the same out at interest, or the investment of the same as the circumstances may require. The order
shall specify the causes why the sale. or encumbrance is necessary or beneficial, and may direct that estate
ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and
manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are
deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper
appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond
as a condition for the granting of the order of sale.
No order of sale granted in pursuance of this section shall continue in force more than one (1) year after
granting the same, without a sale being had.

SEC. 5. Court may order investment of proceeds and direct management of estate.—The court may
authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his
ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned,
and may make such other orders for the

➢ management,
➢ investment, and
➢ disposition of the estate and effects, as circumstances may require.