Q. Hello Atty! I just want to thank you and let you know that I have learned a lot from your channel and from your replies regarding the sale and transfer of land/property. I live in the USA and currently trying to gather the information/documents (during this quarantine period due to COVID-19) needed for the sale of our property. My questions:
1. There are 10 compulsory heirs, two are deceased, and only one out of the eight heirs is disagreeing towards the conditions of the sale of the property, (she wants more money from the sale), is the Extrajudicial Settlement of Estate with Deed of Partition enough document to complete the sale? And will this document suffice as to as part of signing the Deed of Absolute Sale?
2. Will the sale be complete even without the approval or signature of the one disagreeable heir?
3. I already have a certified copy of Certificate of Title and so does the buyer- but the buyer keeps asking for the ORIGINAL COPY of the Certificate of Title? Isn’t the ORIGINAL in the Registry of Deed “vault”? Is the certified copy of the CT legal enough to complete the sale at signing? I would really appreciate your response and Thank You! MC.
ANS: 1. There are 10 compulsory heirs, two are deceased, and only one out of the eight heirs is disagreeing towards the conditions of the sale of the property, (she wants more money from the sale), is the Extrajudicial Settlement of Estate with Deed of Partition enough document to complete the sale?
Reply : In so far as the shares or to the extent of the shares/legitimes of the eight(8) heirs. The sale may be valid. Of course, you have to consider also, the preference of the buyer, especially where there is no clear Deed of Partition yet amongst the heirs. In the absence of the Deed of Partition, it will be difficult for the buyer to determine which part of the undivided interest of the whole property belongs to whom and part of the sale.
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It’s another story, where each of the heirs have made the partition already, thus identifying which lot or subdivided parts belongs to and sold by the concerned heirs.
If the heirs cannot agree on the terms of the sale, the appropriate course of action, is just to execute the Extrajudicial settlement of Estate with Partition first, whereby the heirs have agreed and appropriated amongst themselves the estate of their deceased parents on a pro rata or equal sharing basis. After the heirs have signed the Extrajudicial Settlement and Partition thereof, thereby affirming their respective co-ownerships, there exist now a legal documents, for individual or collective heirs to sell, assign or convey their respective rights, shares, or interest through a separate Deed of Sale/Assignment as regards their co-owned co- owned property covered by the Extrajudicial Settlement and the partition of the estate.
2. Will the sale be complete even without the approval or signature of the one disagreeable heir?
Reply. YES, but only to the extent of the shares or co-ownership interest of the legitimes/share of the concerned heir(s) who executed the deed
3. I already have a certified copy of Certificate of Title and so does the buyer- but the buyer keeps asking for the ORIGINAL COPY of the Certificate of Title? Isn’t the ORIGINAL in the Registry of Deed “vault”? Is the certified copy of the CT legal enough to complete the sale at signing?
Reply:. The buyer has done his/her homework. What the buyer is referring to, is the ORIGINAL of the Owner’s Duplicate Certificate of Title or and/or the Transfer Certificate of Title(TCT) . You are right, the original title of the property is under the custody of the Register of Deeds. Kindly take note that there are two(2) originals of the title. The first original is kept by the Register of Deeds(RD) as the second original, commonly known as Original Owner’s Transfer Certificate of Title or Original Certificate of Title(OCT), is furnished to and in possession of the registered owner of land. The original Owner’s TCT/OCT, is required and shall be surrendered to the RD in case of sale, transfer of property, liens/encumbrances annotations or its cancellation and the issuance of new title to the Transferee as the new registered owner.
The “Certified true copy “ only serves as a proof that the title of the property is existing and not yet cancelled and/or it shows, the annotations or memorandum, liens, that might be existing over the property, such as mortgage, security, litigation , etc. in short.. encumbrances.
In the absence of the owner’s original copy of the TTC or OCT then the buyer would be reluctant to buy the property, as there is possibility that the register may have sold or mortgaged the same, without the benefit of having it registered with the Register of Deeds. In this situation, the buyer is in peril of owning a property which may have a potential claimant(s) in the future or a legal suit by whomsoever is the holder of the missing TCT or OCT.
The remedy, in case of a loss TCT or OCT is to file a reconstitution of the title, before the Court. This means a lot of hassle, inconvenience, expenses, lawyer’s fees , geodetic engineer, in the absence of the approved lot plan, etc.
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