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The Legal Side of Real Estate


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#81 JCR587

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Posted 09 March 2008 - 04:22 PM

Mga Sir, I have a house & lot acquired through financing. I sold the house in two payment terms: 50% advance and balance to be paid in one year. It is also include in the written agreement that the buyer will assume to pay the remaining balance of house amortization to the financier. Additionally, it mentioned also that should the buyer will not be able to perform his/her obligation, I will be obliged to flush them out of my house and their payment made could not be reimbursed. This written agreement is only on a plain sheet of paper and not notarized by a notary public. Now, the buyer can no longer afford to perform his/her obligation and wants to cancel the deal and return back a portion of the money paid to me. I told them to vacate the property and wait until I will sold the property to another buyer before I get back his/her money. However, he/she don't want to vacate my property until I have not given to him/her the money. My question are: Am I obliged to return any portion of his/her money? How can I force him/her to vacate my property? Is the document/agreement we have both signed valid even not notarized by a notary public? Please advice....Thanks

#82 rocco69

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Posted 09 March 2008 - 06:03 PM

Depende kung anong klase ang kontrata niyo. Ito ba ay "deed of sale" o ito ba ay "contract to sell"

Sa "deed of sale", kahit ang bayad ay installment, nung nagkapirmahan kayo, siya na ang may-ari.

Sa "contract to sell", ikaw pa rin ang may-ari hangga't di niya nababayaran ng buo ang presyong napag-usapan niyo.

[Note: ayun sa kwento mo, yung house and lot ay hindi pa fully paid sa financier. Knowing financing companies, ang kontrata between you and the financing company ay "contract to sell". In other words, hindi ikaw ang may-ari ng house and lot. Ito ay nasa pangalan pa ng financing company. Kaya, lumalabas na ang ibenenta mo sa buyer mo ay ang karapatan mong bilhin yung lupa. Anyway, kahit "rights" lang ang ibenenta mo, ito ay "real property" pa rin (see Art. 415, No. 10, Civil Code)]

Bale, depende sa "terms and conditions" na nakasulat dun sa inyong kontrata. Kung WALANG sinasabi sa kontrata na di pa siya ang may-ari hangga't di bayad ng buo, lumalabas na "deed of sale" yun, lalo na at pagkatapos nyong magkapirmahan, tumira na siya dun. Ang ibig sabihin noon, governed by Art. 1191 at 1592 ng Civil Code ang kontrata nyo. Kaya't:

1. Am I obliged to return any portion of his/her money?

Hindi. Pero covered ka ng 1592, as follows;

1592. In the sale of immovable property, even though it may have been stipulated that upon failure to pay the price at the time agreed upon the rescission of the contract shall of right take place, the vendee may pay, even after the expiration of the period, as long as no demand for rescission of the contract has been made upon him either judicially or by a notarial act. After the demand, the court may not grant him a new term.

Kailangang padalhan mo siya ng notaryadong sulat na nagsasabi na ipinapawalang-bisa mo na ang kontrata nyo AT PINALALAYAS MO NA SIYA SA LUGAR; or, maghahabla ka para ipawalang-bisa ang kontrata nyo.

2. How can I force him/her to vacate my property?

After he has received the demand for rescission AT LUMAYAS SA LUGAR, and he ignores the same, pwede ka nang maghabla ng ejectment (if you both live in the same city or municipality, idadaan mo muna sa brgy.)

3. Is the document/agreement we have both signed valid even not notarized by a notary public?

Yes, so long as in writing siya, valid yan (see Civil Code, 1403, No. 2e)


Kung ang kontrata nyo ay "contract to sell", meaning may nakasulat sa lontrata nyo na ikaw pa rin ang may-ari hangga't di ka fully paid, Republic Act No. 6552 naman ang applicable, kaya't:

1. Am I obliged to return any portion of his/her money?

Sabi mo, one year lang ang instalment dun sa balanse. Dahil less than two years, ang applicable ay Sec. 4 ng R.A.6552...

the seller shall give the buyer a grace period of not less than sixty days from the date the installment became due. If the buyer fails to pay the installments due at the expiration of the grace period, the seller may cancel the contract after thirty days from receipt by the buyer of the notice of cancellation or the demand for rescission of the contract by a notarial act.

Lumalabas, kailangang bigyan mo siya ng grace period. Pag di pa rin siya nagbayad, kanselahin mo ang kontrata by giving him a notice of cancellation (which takes effect 30 days from receipt of notice)

2. How can I force him/her to vacate my property?

After 30 days from receipt of notice of cancellation and he refuses to vacate, bigyan mo siya ng notice to vacate the same, if he ignores the same after the period given in the notice, pwede ka nang maghabla ng ejectment (if you both live in the same city or municipality, idadaan mo muna sa brgy.)

3. Is the document/agreement we have both signed valid even not notarized by a notary public?

Yes, so long as in writing siya, valid yan (see Civil Code, 1403, No. 2e)



Mga Sir, I have a house & lot acquired through financing. I sold the house in two payment terms: 50% advance and balance to be paid in one year. It is also include in the written agreement that the buyer will assume to pay the remaining balance of house amortization to the financier. Additionally, it mentioned also that should the buyer will not be able to perform his/her obligation, I will be obliged to flush them out of my house and their payment made could not be reimbursed. This written agreement is only on a plain sheet of paper and not notarized by a notary public. Now, the buyer can no longer afford to perform his/her obligation and wants to cancel the deal and return back a portion of the money paid to me. I told them to vacate the property and wait until I will sold the property to another buyer before I get back his/her money. However, he/she don't want to vacate my property until I have not given to him/her the money. My question are: Am I obliged to return any portion of his/her money? How can I force him/her to vacate my property? Is the document/agreement we have both signed valid even not notarized by a notary public? Please advice....Thanks



#83 jdm922

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Posted 10 March 2008 - 06:10 PM

hello po mga bosing.

hingi lng po ako ng konting advice.

m planning po to buy a lot in a subdivision. the seller says that the lot has been fully paid for but has not been transferred to his name yet. ang sabi nya d pa raw nya pinapalipat para sagot pa raw ng developer ung capital gains. do developers allow this sort of arrangement? or do i have reason to suspect his story?

thanks po.

#84 Dr_PepPeR

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Posted 11 March 2008 - 05:17 PM

hello po mga bosing.

hingi lng po ako ng konting advice.

m planning po to buy a lot in a subdivision. the seller says that the lot has been fully paid for but has not been transferred to his name yet. ang sabi nya d pa raw nya pinapalipat para sagot pa raw ng developer ung capital gains. do developers allow this sort of arrangement? or do i have reason to suspect his story?

thanks po.


If the seller is in the business of buying/selling real estate and the real estate is part of the seller's inventory, there is no capital gains tax, since this will form part of the seller's income and is subject to income tax. If your seller claims to be the owner, most likely he is trying to avoid paying the capital gains himself by having the title directly transferred from the developer to your name. Just be careful.

#85 jdm922

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Posted 12 March 2008 - 01:51 PM

If the seller is in the business of buying/selling real estate and the real estate is part of the seller's inventory, there is no capital gains tax, since this will form part of the seller's income and is subject to income tax. If your seller claims to be the owner, most likely he is trying to avoid paying the capital gains himself by having the title directly transferred from the developer to your name. Just be careful.



thanks sir.

the seller is saying that he is owner of the property and his terms are a bit hard to meet. he wants full payment in cash within three weeks (1 week left) or he'll sell to another buyer (so he says).

anyway, i'll put the transaction on hold until i get more info regarding the property, seller and developer. i wouldn't want to rush into things just because i really like the property.

thanks again.

#86 jdm922

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Posted 18 March 2008 - 06:06 PM

If the seller is in the business of buying/selling real estate and the real estate is part of the seller's inventory, there is no capital gains tax, since this will form part of the seller's income and is subject to income tax. If your seller claims to be the owner, most likely he is trying to avoid paying the capital gains himself by having the title directly transferred from the developer to your name. Just be careful.


just a follow up question sir,

do developers allow that sort of arrangement since the longer it takes to make the transfer, the higher the capital gains they have to pay. don't they usually transfer the title as soon as the property is fully paid to avoid paying higher capital gains?

#87 Dr_PepPeR

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Posted 19 March 2008 - 02:50 PM

just a follow up question sir,

do developers allow that sort of arrangement since the longer it takes to make the transfer, the higher the capital gains they have to pay. don't they usually transfer the title as soon as the property is fully paid to avoid paying higher capital gains?


The Capital Gains Tax should be paid within 30 days from the execution of the Deed of Sale, otherwise there is a 25% surcharge. What the Seller does is to hold off having the Deed of Absolute Sale notarized until they are ready to settle the Capital Gains Tax.

#88 jdm922

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Posted 19 March 2008 - 06:06 PM

The Capital Gains Tax should be paid within 30 days from the execution of the Deed of Sale, otherwise there is a 25% surcharge. What the Seller does is to hold off having the Deed of Absolute Sale notarized until they are ready to settle the Capital Gains Tax.


tnx for the info sir.

#89 bluesclues

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Posted 26 March 2008 - 08:02 AM

Question po. Kung ang lupa ay nakapangalan kay Juan at ang bahay na nakatayo dito ay kay Pedro naman nakapangalan (sa tax dec) at sila ay magkamaganak, pwede bang ilipat o ibenta ni Juan ang titulo ng lupa sa ibang tao ng hindi kasama ang bahay?(assuming na payag naman si Pedro at payag din ang bibili) Isasama pa rin ba sa computation ng capital gain tax ang halaga ng bahay kung sakaling pwede?

#90 Dr_PepPeR

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Posted 26 March 2008 - 04:22 PM

Question po. Kung ang lupa ay nakapangalan kay Juan at ang bahay na nakatayo dito ay kay Pedro naman nakapangalan (sa tax dec) at sila ay magkamaganak, pwede bang ilipat o ibenta ni Juan ang titulo ng lupa sa ibang tao ng hindi kasama ang bahay?(assuming na payag naman si Pedro at payag din ang bibili) Isasama pa rin ba sa computation ng capital gain tax ang halaga ng bahay kung sakaling pwede?


Sale of the land includes the house (if it is permanent in nature) and will be included in computing CGT.

#91 bluesclues

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Posted 26 March 2008 - 05:30 PM

Sale of the land includes the house (if it is permanent in nature) and will be included in computing CGT.


Even if improvements or the house is not under the landowner's name?

#92 jdm922

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Posted 26 March 2008 - 07:10 PM

hello po mga sir,

hingi lng po sana ko ng konting info.

i'm about to buy a lot in a subdivision (resale). the seller is legit and the lot has been fully paid for but has not been transferred to his name yet. we've also agreed on the price and that payment would be made in cash. however, i work abroad and won't be able to get back to the philippines until july. the seller is proposing that we make the transaction asap with a deed of sale and transfer of title would be made when i get there. is it advisable to proceed with the transaction even though i'm not there and what are the steps that need to be followed? i would greatly appreciate your advice and opinions.

many thanks.

#93 cbotc

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Posted 31 March 2008 - 12:14 PM

I am planning to purchase two adjacent lots (Lots 1 & 2) and have some questions.

Lot 1 is titled under the name of a deceased person. The deceased owner is survived by his wife who is now in the US. They have no children. The wife has executed a Special Power of Attorney (SPA) in the US designating her niece (daughter of eldest brother of the deceased) residing in the Philippines as her Attorney in Fact for this purpose. I am awaiting the document now. An extra judicial settlement of the estate of the deceased will be made.

Lot 2 is titled under the surviving brother of the deceased person above. He and his wife are both in the US. He has already executed an SPA designating his sister residing in the Philippines his Attorney in Fact for this transaction.

I have made the following conditions for the sale to take place:
a) that Lot 1 has to be extra judicially settled and that the wife is designated by law to have the legal authority to sell the property to me and
B) for both Lots 1 & 2, for the Seller and his designated Attorney in Fact (in both instances) to agree to sign a liability clause in the Absolute Deed of Sale as follows:

" SELLER and his designated Attorney-in-Fact frees the BUYER, his heirs and assigns of any and all liabilities and SELLER and his designated Attorney-in-Fact assumes all responsibilities for claims, damages and expenses should any arise after the execution of this Absolute Deed of Sale from creditors, heirs and other persons opposing the sale of the above property. "

Have covered all bases, so to speak, for this sale of property? So not, I would appreciate comments, suggestions, inputs from you dear sirs in the know on real estate legalities. Thank you and have a nice day.

#94 duralife

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Posted 07 April 2008 - 03:59 AM

Even if improvements or the house is not under the landowner's name?


yes, that is the general rule "the accessory follows the principal".

#95 neKnock

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Posted 09 April 2008 - 04:33 PM

Just an update on our planned separation of lot titles. Apparently, we could not go on as planned since the Mother Title was misplaced/lost. Is there any other way to go through this, legally of course? My mother plans to delegate someone to go through the bureaucratic process. Is it possible to acquire a new copy of the Mother Title?

#96 jayport62

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Posted 09 April 2008 - 06:47 PM

Just an update on our planned separation of lot titles. Apparently, we could not go on as planned since the Mother Title was misplaced/lost. Is there any other way to go through this, legally of course? My mother plans to delegate someone to go through the bureaucratic process. Is it possible to acquire a new copy of the Mother Title?


If you misplaced your Owner's Duplicate, you can apply for the issuance of a 2nd owner's duplicate - file the petition in court. This is of course assuming the original title is in the custody of the Register of deeds

#97 exodus

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Posted 30 April 2008 - 01:42 PM

Question:

saan po ba maiuutang o maisasanla ang land title? kahit anong bank ba? magkano kaya ang monthly interest?

#98 rocco69

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Posted 01 May 2008 - 06:12 PM

Question:

saan po ba maiuutang o maisasanla ang land title? kahit anong bank ba? magkano kaya ang monthly interest?


shop around

#99 Dr_PepPeR

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Posted 12 May 2008 - 02:56 PM

Question:

saan po ba maiuutang o maisasanla ang land title? kahit anong bank ba? magkano kaya ang monthly interest?


It will be easier if you approach a bank where you are already a client. They already know you.

#100 s_wrdfish

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Posted 12 May 2008 - 07:05 PM

mga master question lang po. i recently entered into a 'contract to sell' agreement with a condo developer. in-house yung loan ko ngayon kaso natataasan ako sa interest ng developer eh mukhang mas attractive ang rates ng PAG-IBIG. nagpapaloan ba ang PAG-IBIG kahit contract to sell lang ang hawak ko? baka po alam nyto ung proseso. tnx.




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