A prudent buyer’s guide to acquiring real property
The pandemic has greatly taught the practicality of investing in properties that appreciate in value over time, i.e., real properties. To forestall, or at the very least mitigate, possible disputes which may ensue, below are some of the tips which a prospective buyer may have to consider before and after acquiring a real property.
CHECK THE PROPERTY’S CERTIFICATE OF TITLE.
It is prudent for a buyer to check the authenticity and existence of the certificate of title (CoT) with the Registry of Deeds (RoD) where the property is situated. In which case, the buyer will be informed if the property is subject to any encumbrances as can be gleaned from the annotations in the CoT, e.g., real estate mortgage or notice of lis pendens.
A buyer should be cautious if the property is subject to a registered real estate mortgage. This is because a mortgage is a real right, which follows the property, even after subsequent transfers by the mortgagor. The mortgage having been registered, the purchaser or transferee is necessarily bound to acknowledge and respect the encumbrance. Consequently, the mortgage on the property may still be foreclosed despite the transfer. (Garcia v. Villar, G.R. No. 158891, 27 June 2012)
A buyer may also encounter a notice of lis pendens annotation in the CoT. Lis pendens is a Latin term which literally means a pending suit. Notice of lis pendens is filed for the purpose of warning all persons that the title to certain property is in litigation and that if they purchase the same, they are in danger of being bound by an adverse judgment. The notice is intended to be a warning to the whole world that one who buys the property does so at his own risk. This is necessary in order to save innocent third persons from any involvement in any future litigation concerning the property. (Lim v. Vera Cruz, G.R. No. 143646, 4 April 2001)
DETERMINE THE SELLER’S AUTHORITY TO DISPOSE.
Evaluating the CoT will enable the buyer to confirm if the seller is the registered owner of the property. If the seller is a person other than the registered owner, he or she must be able to show that he or she is duly authorized to convey the said property. This is because “a person can sell only what he owns or is authorized to sell; the buyer can as a consequence acquire no more than what the seller can legally transfer” pursuant to the principle that no one can give what he does not have. (Nool v. Court of Appeals, G.R. No. 116635, 24 July 1997)
Consequently, the buyer can demand that the seller, other than the registered owner, present his authority which may be embodied in a special power of attorney.
Further, even if the seller is the registered owner of the property, marital consent is also necessary if he/she is married. Articles 96 and 124 of the Family Code both require the consent of the other spouse or, in the absence thereof, a court authority, to validly encumber or dispose of a property belonging to the spouses’ absolute community property or conjugal partnership. Absence of marital consent renders the sale void.
CONDUCT AN OCULAR INSPECTION OF THE PROPERTY.
The conduct of an ocular inspection is essential to safeguard the buyer. Although a buyer need not go beyond the CoT of the property, it is also a hornbook principle in law that where there are circumstances which would put a party on guard and prompt him/her to investigate or inspect the subject property, such as the presence of occupants or tenants thereon, the buyer is expected to inquire first into the status or nature of possession of the occupants, i.e., whether or not the occupants possess the land in the concept of an owner. (Philippine National Bank v. Heirs of Militar, G.R. No. 164801, 30 June 2006) Consequently, the buyer is fully apprised if the property may be the subject of a possible dispute in the future.
IMMEDIATELY REGISTER THE SALE OF THE PROPERTY.
After exercising the precautionary measures above and once the parties execute a Deed of Absolute Sale conveying the property to the buyer, the buyer must immediately record it with the RoD. This is to safeguard the buyer in case the same property is sold to other persons, i.e., double sale. The principle of first in time, stronger in right gains greater significance in case of a double sale of immovable property. When the thing sold twice is an immovable, the one who acquires it and first records it in the Registry of Property, both made in good faith, shall be deemed the owner. (Rosaroso v. Soria, G.R. No. 194846, 19 June 2013) n
The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.
Zyra G. Montefolca is an associate of the Davao Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
