Rights of co-owner(s) to sell property

By | July 1, 2009

Q. I have been keeping some of your old clippings from Balita and just wondering if you are still active with Balita.

I would like to consult with you regarding our properties in Cordon, Isabela. We are 11 siblings and the property (commercial) of our late parents was transferred to us represented by one of my brothers. Attached to the Transfer Certificate of Title, is the Deed of Extra Judicial Settlement witnessed and signed by all of 11 siblings.

My two (2) sisters and one (1) brother who live in Cordon are currently selling and negotiating to sell this commercial property without our consent. But according to them, they have a lawyer stating that they have the power to sell the property. I really don’t understand since I am in Canada and some of my siblings are also abroad and in Manila. I can’t do anything from here.

By law, can my three (3) siblings sell the commercial property without discussing with us or giving them the power of attorney to negotiate? Thank you so much for reading this and for your help. SIncerely, Maricar

Ans: My view to your query is anchored on my understanding that this property that you mentioned was already a subject of an extrajudicial settlement of estate of your deceased parents by all the heirs and that the previous title thereof in the name of your deceased parent(s) was cancelled already and a new one is issued showing the eleven (11) siblings in your family as Co-owners.

Based on the above premise, your question now is whether your 3 siblings can sell this property even without the consent of other co-owners or the rest of the siblings.

Under Article 493 of the Civil Code, co-owner(s) of an undivided property may sell his or her interest or portion of the property even without the consent of other co-owners. Thus the answer to your query is a resounding yes…your siblings as co-owner may alienate or assign or mortgage his or her portion of the property even without the consent of the other co-owners.

Of course, your portion of the co-ownership will not be affected with the sale or alienation. As co-owner, you can demand at any time for the partition of the property, more so if the physical partition or division of the thing or property in owned in common will NOT render the division or partition unserviceable for the use for which the property was intended. ( Art.495 Civil Code of the Philippines).

Furthermore as co-owner, you have the pre-emptive right or the right of first refusal, to purchase first that portion of the property owned in common before your siblings can sell it to third party(ies), as held by the Supreme Court in a similar case, to wit:

“If a portion of the property co-owned has been sold to third person, with out affording the other co-owner the opportunity of first refusal, the latter shall have 30 days from receipt of such notice or knowledge thereof to exercise the right of legal redemption , at a reasonable price” (Oscar C. Fernandez, et al. v. Spouses Carlos and Narcisa Tarun,G.R.143868,November 14,2002).

For your ready reference and corollary to the foregoing, pertinent provision of the Civil Code of the Philippines, is hereunder reproduced:

“Article 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common.”

“Article 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be, The Deed of Sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that the has given written notice thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining owners.”

From the above , it is therefore imperative upon your siblings in the Philippines to offer the portion of the property co-owned to the other co-owners first before selling the same to third person at a reasonable price , and in case a written notice is served upon the co-owners to sell their share of the property and or the property had been sold to third person without the other co-owners’ notice , the latter shall have thirty days from receipt of such notice or knowledge , to exercise the rights of pre-emption or redemption , as the case may be.

Looking forward you’ll find the above in order. Thank you for writing.

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