Q. Hello Attorney, I am a foreign worker who moved to Alberta, Canada last June 2012. I wanted to consult you about the townhouse property of my late husband. This property was purchased through a developer through the PAG-IBIG housing fund. Since my husband was left in the Philippines, all the paper works were done by him and the corresponding documents of the townhouse was under his name.
Records show that in 2008 my husband signed a mortgage document with the developer. Unfortunately, he died on June 2010 , Then it has come to my knowledge that we have a still a balance of the mortgage and the equity requirement as well.
I was in Dubai for 5 years and to pay off the balance I sent money every month until I have fully paid the mortgage including the penalty charges. After the full payment possession of the house was turned over to me.
To my surprised when I got all the documents from the developer , it shows that the townhouse is under the name of my deceased husband. This was so because according to the developer my husband died without transferring the property under my name.
I have a minor 10- yrs old son and the developer asked me to prepare the necessary documents in the settlement of the estate of my husband as his heirs.
To my recollection, under the contract documents that my husband signed with the developer, it is responsibility of the developer to work out in the transfer and issuance of the title in the name of my husband. The fees and expenses of the title issuance were in fact incorporated in the fees that we have paid the developer.
I have completed all the papers works for transferring the title into my name and pay the property tax as well, but until this date, it seems the developer has not done anything for this purpose. However, lately I was advised that the title will be issued but it will be under the name of my deceased husband. I could not understand why they would not be able to do it transferring of the title under my name despite of our understanding.
Could you please enlighten me on this matter?
1) Is it okay for them to transfer the property under the name of my husband who died 2010 and it is now 2013? If they do the transferring of the title in the name of my husband, would it be easy for me to transfer the property under my name considering that he died years ago ?
2) How about if I am going to sell the property? Will there’ll be an issue if the property is still under my husband’s name?
I called up the developer last night and I was told they have not finished yet the processing. I reminded the developer that it is their responsibility to shoulder the cost and the legwork in the processing of the title. Under the contract the developer is supposed to deliver the title after one year from the signing of the mortgage agreement in 2008. As I have said earlier, I have already paid in full the remaining balance of this property.
Hoping to hear from you and thank you so much for your time. Michelle
ANS. It’s quite a challenge responding to your queries in the absence of vital documents for me to personally peruse the documents you have mentioned . But from what I gathered from you, you have already paid the balance of the townhouse and have already complied with all the documents. Presumably, the execution of Extrajudicial Settlement of Estate of your husband.
It is not clear in your email whether you have already paid the corresponding taxes like the estate tax, documentary tax, transfer tax and other required fees in the settlement of the estate and the transfer of the property. Perhaps the tax that you referred to has having paid already pertains to the real estate due on the townhouse.
While it could be responsibility of the developer to do the legwork and to should the expenses in the issuance of the title of the property, this corner is certain that the said cost does not include the estate taxes and other fees thereto incident to the settlement of the estate of your husband.
This could be the reason why, the title that will be issued will still be under the name of your deceased husband.
Legally, as surviving spouse and the successor-in-interest to that townhouse , you and your son are considered as co-owners of the townhouse property being the compulsory heirs of your husband.
Being the case, in the event that the developer releases the title under the name of your husband, you can have the title cancelled and replaced the same with a new title one under your name and the name of your child as co-owner.
This can be done by complying, with the procedure and requirements in the settlement of estate, such as among others, the execution of the Extrajudicial Settlement of Estate, Payment of Estate tax and the issuance by the Bureau of Internal Revenue (BIR) the Certificate Authorizing Registration(CAR) of the subject property and the compliance of the publication requirement of the estate settlement in the newspaper of general circulation for three (3) consecutive weeks, among others.
When all these things are complied with , you can proceed to the office of the Register of Deeds where the property is registered , for the cancellation of the old title under the name of your husband and the issuance of new title under your name and that of your child as co-owners.
Selling the Property: You can dispose or sell the property even at this stage even if the title is still under the name of your deceased husband. Just be sure that you got all the documents mentioned above(Extrajudicial Settlement of Estate) in order and by virtue thereof, you can execute a Deed of Sale in favour of the buyer. Of course, if the buyer is willing to take this risk in the absence of the new title under your name .
If the Developer is giving you hard time or causing you problem by not following the contract to sell and other conditions as provided in the contract documents that you and your husband signed with the developer , you may file the necessary complaint with the Housing Land Use Regulatory Board (HLURB) nearest the location of your townhouse.
The HLURB is a government agency that has exclusive jurisdiction in all matters relating to your queries and other concerns. Thank you for writing and looking forward you’ll find the above in order.
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