The Legal Side of Real Estate

[rocco69]

Posting this question on behalf of a non-MTC member friend.

 

My friend has 3 investment homes which he leases out to tenants. One of the homes was leased to someone who ran into a bit of cash flow issue. My friend has yet to give his tenant a lease contract, although rent has been paid for the past three months except for the month of Oct-Nov. The tenant previously agreed to vacate, but because they cannot find a suitable place to live after 2 weeks of searching, they asked for an extension, and deposited the rent due for the month.

 

Question: Does my friend (the landlord) have the right to forcibly evict the tenants despite the latter having paid their dues (since there is no contract signed), or is he obligated to give them the leeway/extension considering the circumstances.

 

By the way, the deposit has not been consumed and the rent for this month has been paid via deposit.

 

My friend asked me to refer tenants, which I found, but they were concerned since the present tenants have asked for a bit of an extension. I advised my friend to allow them as much time since the new tenants are willing to wait anyway. However, I do not know the letter of the law on this one so I hope someone can spare some advice. thank you.

1. Does my friend (the landlord) have the right to forcibly evict the tenants despite the latter having paid their dues?

 

No. Whether they have paid their dues or not, you cannot forcibly evict tenants, as the same would constitute grave coercion (see Art. 286, Revised Penal Code). You have to have a court order to evict tenants.

 

2. Is he obligated to give them the leeway/extension considering the circumstances?

 

No. As the owner, he has a right to demand that non-paying tenants leave, more so in this case where there is no written contract, which means that the lease expires every month, as rentals are paid on a monthly basis.

 

In sum, he cannot forcibly evict the tenant; but the tenant cannot unilaterally insist on an extension either. Which means, at the end of the month, he can demand that the tenant leave. However, if the tenant refuses to leave, he has to file a case for eviction against the tenant; as he cannot forcibly evict the latter.

[99PercentCaffeine]

1. Does my friend (the landlord) have the right to forcibly evict the tenants despite the latter having paid their dues?

 

No. Whether they have paid their dues or not, you cannot forcibly evict tenants, as the same would constitute grave coercion (see Art. 286, Revised Penal Code). You have to have a court order to evict tenants.

 

2. Is he obligated to give them the leeway/extension considering the circumstances?

 

No. As the owner, he has a right to demand that non-paying tenants leave, more so in this case where there is no written contract, which means that the lease expires every month, as rentals are paid on a monthly basis.

 

In sum, he cannot forcibly evict the tenant; but the tenant cannot unilaterally insist on an extension either. Which means, at the end of the month, he can demand that the tenant leave. However, if the tenant refuses to leave, he has to file a case for eviction against the tenant; as he cannot forcibly evict the latter.

 

Thank you for the response and advice. Follow up question: If he does decide to go through the courts for eviction, how long does the process usually take? Thanks a lot.

[rocco69]

 

Thank you for the response and advice. Follow up question: If he does decide to go through the courts for eviction, how long does the process usually take? Thanks a lot.

Court cases take some time. One year for an eviction case is an optimistic estimate.

[hitokiri_3020]

1. Does my friend (the landlord) have the right to forcibly evict the tenants despite the latter having paid their dues?

 

No. Whether they have paid their dues or not, you cannot forcibly evict tenants, as the same would constitute grave coercion (see Art. 286, Revised Penal Code). You have to have a court order to evict tenants.

 

2. Is he obligated to give them the leeway/extension considering the circumstances?

 

No. As the owner, he has a right to demand that non-paying tenants leave, more so in this case where there is no written contract, which means that the lease expires every month, as rentals are paid on a monthly basis.

 

In sum, he cannot forcibly evict the tenant; but the tenant cannot unilaterally insist on an extension either. Which means, at the end of the month, he can demand that the tenant leave. However, if the tenant refuses to leave, he has to file a case for eviction against the tenant; as he cannot forcibly evict the latter.

 

pareho po ba ito sa rice field tenants?

[rocco69]

 

pareho po ba ito sa rice field tenants?

Nope. Agricultural tenants are governed by tenancy laws and the Comprehensive Agrarian Reform Program.

[seraniko-ako]

patulong po ano po ang mga gagawin ko kung ipapalipat ko sa pangalan ung titulo ng bahay at lupa mula sa namatay kong ama papunta sa akin, ano po ang process..... salamat po mga sir at madam sa sasagot God bless

[rocco69]

patulong po ano po ang mga gagawin ko kung ipapalipat ko sa pangalan ung titulo ng bahay at lupa mula sa namatay kong ama papunta sa akin, ano po ang process..... salamat po mga sir at madam sa sasagot God bless

Una. Mangangailangan ka ng ebidensya kung papaano naging iyo ang bahay at lupa (dahil ito ay nakatitulo pa sa pangalan ng ama mo).

Kung ito ay namana mo, kailangan mo ng Extrajudicial Settlement of Estate (kung marami kayong tagapagmana) kung saan nakasaad na sa iyo napunta yung bahay at lupa; o di-kaya'y Affidavit of Self-Adjudication (kung nag-iisa ka lang na tagapagmana). Alalahanin mo na kung buhay pa ang iyong ina, isa rin siyang tagapagmana ng ama mo (kung kaya't Extrajudicial Settlement ang gagawin ninyo).

 

Pag nagawa na ito, kailangang ipa-dyaryo ng isang beses kada linggo, sa loob ng tatlong magkakasunod na linggo, (bale, tatlong beses) yung pangyayaring Extrajudicial Settlement (ito yung nababasa mo paminsan minsan sa dyaryo na may pamagat na "Legal Notice")

 

Pangalawa. MAGHANDA NG MALAKI-LAKING HALAGA!

 

Pangatlo. Bayaran ang buwis (estate tax) sa BIR (kailangan mo yung tax declaration ng lupa). Maaari mong ibawas sa babayaran yung mga nagastos sa pagpapahospital at pagpapagamot sa huling sakit ng iyong ama, pati ang mga nagastos sa pagpapalibing (kailangan ng resibo na magpapatunay sa mga gastusing ito). Pwede ring ibawas yung halaga ng bahay at lupa (hanggang P1M) kung ito ang tirahan ng iyong mga magulang (kailangan ng certipikasyon mula sa barangay na it ang "Family Home" ng iyong ama).

 

[NOTE: Kailangan mabayaran ang Estate tax sa loob ng anim na buwan mula sa pagkamatay ng iyong ama.Kung hindi ito nabayaran sa loob ng panahon na ito, may penalty agad na 25% ng halagang babayaran bilang buwis (sa madaling salita, 125% ang babayaran mo sa dapat na buwis)

Pagkatapos, kada taon na hindi ito nabayaran, may 20% interest sa halagang dapat bayaran, compounded (sa madaling salita ulit, yung interes ay kasama sa pagkukwenta ng karagdagang interes). Kung kaya't, kung matagal nang patay ang iyong ama, maaaring napakalaking halaga na ang babayaran mo bilang Estate Tax.]

 

 

Bayaran ang Documentary Stamp Tax (sa BIR din ito).

 

Bayaran ang Transfer Tax sa munisipyo.

 

Bayaran ang real estate tax (sa munisipyo din).

 

Pang-apat. Pag bayad na ang mga buwis, kunin ang tax clearance sa munisipyo at yung Certificate Allowing Registration (CAR) sa BIR.

 

Pang-lima. Pumunta na sa Register of Deeds dala lahat ng dokumento para ipalipat na yung titulo sa iyong pangalan.

 

Good luck.

[BettyConfidential]

Hi. I need some expert inputs on this:

 

I bought a townhouse 2 years ago on an assume-balance basis. I'm paying Pag-ibig under the first owner's name.

• These are the docs I have with me:
• Deed of Absolute Sale
• Transfer Certificate of Title (Certified True Copy)
• All payment receipts

 

The first owner called me up a few days ago asking about the house. Until now I was not able to move in the unit and the first owner asked if he could buy it out. I'm open to it. What arrangement can we make? He said he cannot pay it in one go. If he gives a downpayment do I have to give him any documents aside from a receipt? He asked me kase kung pwede daw wala ng ibang parties (I'm assuming he's referring to an agent or a lawyer?) at kaming 2 na lang mag-usap.

 

Any advice would be appreciated. Thanks!

[sanchezZZZzz]

Pde naman yan kayo lang kaso there would be higher safety for you kung may other parties involve like reb, lawyer (mataas na yung fee nun), agent would not be necessary,,, magkno naba naabonohan mo at how would they plan to pay u back?

 

Hi. I need some expert inputs on this:

 

I bought a townhouse 2 years ago on an assume-balance basis. I'm paying Pag-ibig under the first owner's name.

 

• These are the docs I have with me:
• Deed of Absolute Sale
• Transfer Certificate of Title (Certified True Copy)
• All payment receipts

The first owner called me up a few days ago asking about the house. Until now I was not able to move in the unit and the first owner asked if he could buy it out. I'm open to it. What arrangement can we make? He said he cannot pay it in one go. If he gives a downpayment do I have to give him any documents aside from a receipt? He asked me kase kung pwede daw wala ng ibang parties (I'm assuming he's referring to an agent or a lawyer?) at kaming 2 na lang mag-usap.

 

Any advice would be appreciated. Thanks!

[2ae]

Hello...good day...could anyone talk about lease of land property. Wanna know what is best lease for a piece of land....

Edited February 1, 2018 by 2ae

[BettyConfidential]

Pde naman yan kayo lang kaso there would be higher safety for you kung may other parties involve like reb, lawyer (mataas na yung fee nun), agent would not be necessary,,, magkno naba naabonohan mo at how would they plan to pay u back?

Hi. Thanks for the reply. Almost half a mil. I told them we could settle in staggered payments within 6 months. I'm just not sure if that is acceptable, too long ba o pwede pa iextend kung makiusap. At anong arrangement ang pwede. I also need the money for another property.

[rocco69]

Hi. Thanks for the reply. Almost half a mil. I told them we could settle in staggered payments within 6 months. I'm just not sure if that is acceptable, too long ba o pwede pa iextend kung makiusap. At anong arrangement ang pwede. I also need the money for another property.

Contract to Sell with Re-assumption of Mortgage [since you are still paying for the loan in the 1st owner's name, he just re-assumes the mortgage] (where you retain title to the property until you are fully paid, and promise to execute a Deed of Absolute Sale only upon full payment); plus post-dated checks for the staggered payments (so that if they bounce, you can file a criminal case for violation of BP22);

[BettyConfidential]

Contract to Sell with Re-assumption of Mortgage [since you are still paying for the loan in the 1st owner's name, he just re-assumes the mortgage] (where you retain title to the property until you are fully paid, and promise to execute a Deed of Absolute Sale only upon full payment); plus post-dated checks for the staggered payments (so that if they bounce, you can file a criminal case for violation of BP22);

 

Thank you! Never thought about post-dated checks. This is really helpful.

Edited February 5, 2018 by BettyConfidential

[charliehouse]

Tanong lang po.

May nabili po kaming lupa covered by tax dec by virtue of extrajudicial settlement partition at simultaneous sale. Gusto namin na magkaroon ng titulo. Now kung hindi po nagbayad ng estate tax ang mga heirs ng lupa liable ba kami sa estate tax considering na di pa titulado ito?

[cbotc]

Is the Estate Tax Amnesty House Bill 4814 already in effect?

 

We are about to settle the estate tax of my Mom who passed away in 2015 and we are covered by the amnesty for unpaid estate tax from 2016 and prior years. I wonder if we can avail of the amnesty already at this time.

 

Thanks in advance for your legal advice.

[rocco69]

Tanong lang po.

May nabili po kaming lupa covered by tax dec by virtue of extrajudicial settlement partition at simultaneous sale. Gusto namin na magkaroon ng titulo. Now kung hindi po nagbayad ng estate tax ang mga heirs ng lupa liable ba kami sa estate tax considering na di pa titulado ito?

liable ba kami sa estate tax considering na di pa titulado ito?

 

Hindi kayo ang liable. yung heirs.

 

whether titled or not, the heirs are still liable for estate taxes. kitang-kita kasi sa documents ninyo na galing sa mana yung property (extrajudicial settlement and partition with simultaneous sale, di ba). kung straight sale lang mula sa heirs, baka sakaling makalusot pa na bentahan lang talaga.

 

as it is, the sellers having acquired the property through inheritance, they are liable for estate taxes.

[silentjasonx]

Good day,

 

I just want to ask if the government or DPWH has any say on Private roads.

Must we the owners of the Private road follow certain rules on how wide it should be?

I've read something in the DPWH saying that a pavement width should have a minimum of 6.70 meters.

The problem we have is that the road is 6.3 meters and if we will put walkways on each side do we need to surrender part of our land for that or can we just take it from the road. we are thinking of getting 0.6 meters on each side of the road making it 5.1 meters for the road. Base on how wide a Toyota Land Cruiser(1.885meters), it is still enough for 2 lanes.

 

btw. the private road is still undeveloped.

There is no problem if we give portion of the land to provide the walkways/sidewalks but if we can avoid it since it is a private road, the better.

 

Thank you

[rocco69]

Good day,

 

I just want to ask if the government or DPWH has any say on Private roads.

Must we the owners of the Private road follow certain rules on how wide it should be?

I've read something in the DPWH saying that a pavement width should have a minimum of 6.70 meters.

The problem we have is that the road is 6.3 meters and if we will put walkways on each side do we need to surrender part of our land for that or can we just take it from the road. we are thinking of getting 0.6 meters on each side of the road making it 5.1 meters for the road. Base on how wide a Toyota Land Cruiser(1.885meters), it is still enough for 2 lanes.

 

btw. the private road is still undeveloped.

There is no problem if we give portion of the land to provide the walkways/sidewalks but if we can avoid it since it is a private road, the better.

 

Thank you

if it is a private road, not for a subdivision or realty development, the DPWH would have no say as to the width, as the same is not subject to its regulatory power.

 

The Civil Code itself says:

 

Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation.

 

However, if the same is for a subdivision or realty development, the same would be subject to govt regulation, hence there would be limitations as to road width.

[silentjasonx]

if it is a private road, not for a subdivision or realty development, the DPWH would have no say as to the width, as the same is not subject to its regulatory power.

 

The Civil Code itself says:

 

Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation.

 

However, if the same is for a subdivision or realty development, the same would be subject to govt regulation, hence there would be limitations as to road width.

Hi Sir Rocco69, the private road originated from 1 land split into 3 and in order for one of the land to gain access to the main road the private road was included in dividing the land. so the land title for the road is on our names and we pay tax for it. it's like right of way or something. and we are planning to build dorms and commercial space in those lands. will this be considered realty development?

[rocco69]

Hi Sir Rocco69, the private road originated from 1 land split into 3 and in order for one of the land to gain access to the main road the private road was included in dividing the land. so the land title for the road is on our names and we pay tax for it. it's like right of way or something. and we are planning to build dorms and commercial space in those lands. will this be considered realty development?

if you don't need HLURB accreditation/permission, then no restriction on the road.

[silentjasonx]

if you don't need HLURB accreditation/permission, then no restriction on the road.

Thanks a lot Sir rocco69 for this information

[rocco69]

hi po

just want to ask about titles

can 1 title have 2 tax declaration numbers?

example

1 big lot under one title

have two tax declarations and under each tax declaration have sub lots?

it's possible. Local Government doesn't care about titles, all it cares about is getting revenues.

[rocco69]

question po regarding Agricultural Leasehold Contract.

1) May expiration po ba ito?wala kasi nakalagay sa contract

 

2) what if the parties involved are all dead? succession is automatic ba on both sides? without any updating of the contracts to reflect the present heirs?

 

3) wala po notarization and no signature on the side of MARO. pero nasa MARO. is this considered registered?

Republic Act 3844 ang sasagot sa mga katanungan mo. Ayon sa Kataas-taasang Hukuman:

 

For agricultural leasehold, the governing law is R.A. No. 3844,which, except for Section 35 thereof, was not specifically repealed by the passage of the Comprehensive Agrarian Reform Law of 1988 (R.A. No. 6657), but was intended to have suppletory effect to the latter law.

 

 

1) May expiration po ba ito? Wala kasi nakalagay sa contract.

 

Section 7. Tenure of Agricultural Leasehold Relation - The agricultural leasehold relation once established shall confer upon the agricultural lessee the right to continue working on the landholding until such leasehold relation is extinguished. The agricultural lessee shall be entitled to security of tenure on his landholding and cannot be ejected therefrom unless authorized by the Court for causes herein provided.

 

Section 8. Extinguishment of Agricultural Leasehold Relation - The agricultural leasehold relation established under this Code shall be extinguished by:

(1) Abandonment of the landholding without the knowledge of the agricultural lessor;

(2) Voluntary surrender of the landholding by the agricultural lessee, written notice of which shall be served three months in advance; or

(3) Absence of the persons under Section nine to succeed to the lessee, in the event of death or permanent incapacity of the lessee.

 

Ibig sabihin, ito lang ang batayan para mawalan ng bisa ang leasehold contract. Kahit walang nakalagay sa kontrata, ang batas ay kasama sa kontrata, kung kaya't hanga't hindi nangyayari ang alin sa nakasaad sa Section 8, TULOY SI AGRICULTURAL LEASE!

 

2) what if the parties involved are all dead? succession is automatic ba on both sides? without any updating of the contracts to reflect the present heirs?

 

Kung patay na ang original na parties sa kontrata, Section 9 naman ang iiral.

 

Section 9. Agricultural Leasehold Relation Not Extinguished by Death or Incapacity of the Parties - In case of death or permanent incapacity of the agricultural lessee to work his landholding, the leasehold shall continue between the agricultural lessor and the person who can cultivate the landholding personally, chosen by the agricultural lessor within one month from such death or permanent incapacity, from among the following: (a) the surviving spouse; ( the eldest direct descendant by consanguinity; or © the next eldest descendant or descendants in the order of their age: Provided, That in case the death or permanent incapacity of the agricultural lessee occurs during the agricultural year, such choice shall be exercised at the end of that agricultural year: Provided, further, That in the event the agricultural lessor fails to exercise his choice within the periods herein provided, the priority shall be in accordance with the order herein established.

In case of death or permanent incapacity of the agricultural lessor, the leasehold shall bind his legal heirs.

 

3) wala po notarization and no signature on the side of MARO. pero nasa MARO. is this considered registered?

 

Magtanong sa MARO whether they consider it as registered. Whether YES or NO, that answers your question

[rocco69]

Thnx sa reply. Ffup question

Regarding sa succession. If the succession was not reported po? Tuloy pa din po? Both lessee ams lessor was not updated kasi for over 30 years.

sino ba ang nagsaka sa lupa nung mamatay yung original lessee? Kung tagapagmana niya, lumalabas tuloy pa rin yung lease.

 

kung ibang tao ang nagsaka, nagprescribe na yung karapatan nung tagapagmana ng original lessee na maghabol sa lease, at 30 years na ang lumipas.

[rocco69]

Thnx

Kakatanong ko lang pala sa barangay na wala nang nagsasaka dun kasi commercial space na dun pero dun pa din nakatira ung magsasaka at ibang mga business na gingagawa. Pued po ba kumuha ng certification na wala nang agricultural dun? Mula sa actual pero sa assessor naka agri pa ung category? Kaya wala nang bisa dapat ung agri leasehold contract

Another question kapag revival of judgment sa same branch po ba gaganapin ung kaso o panibagong branch po?

1. Pued po ba kumuha ng certification na wala nang agricultural dun? Mula sa actual pero sa assessor naka agri pa ung category? Kaya wala nang bisa dapat ung agri leasehold contract

 

hindi ang actual na gamit sa property ang nagdedetermine ng classification niya, kundi ang classification ng munisipyo.

 

kung sa zoning ng munisipyo ay agricultural pa rin siya, agricultural pa rin kahit wala nang nagsasaka dun.

 

NGUNIT, SUBALIT, DATAPWAT... Ayun sa Sec. 36 ng RA 3844:

 

Section 36. Possession of Landholding; Exceptions - Notwithstanding any agreement as to the period or future surrender, of the land, an agricultural lessee shall continue in the enjoyment and possession of his landholding except when his dispossession has been authorized by the Court in a judgment that is final and executory if after due hearing it is shown that:

(1) The agricultural lessor-owner or a member of his immediate family will personally cultivate the landholding or will convert the landholding, if suitably located, into residential, factory, hospital or school site or other useful non-agricultural purposes: Provided; That the agricultural lessee shall be entitled to disturbance compensation equivalent to five years rental on his landholding in addition to his rights under Sections twenty-five and thirty-four, except when the land owned and leased by the agricultural lessor, is not more than five hectares, in which case instead of disturbance compensation the lessee may be entitled to an advanced notice of at least one agricultural year before ejectment proceedings are filed against him: Provided, further, That should the landholder not cultivate the land himself for three years or fail to substantially carry out such conversion within one year after the dispossession of the tenant, it shall be presumed that he acted in bad faith and the tenant shall have the right to demand possession of the land and recover damages for any loss incurred by him because of said dispossessions.

(2) The agricultural lessee failed to substantially comply with any of the terms and conditions of the contract or any of the provisions of this Code unless his failure is caused by fortuitous event or force majeure;

(3) The agricultural lessee planted crops or used the landholding for a purpose other than what had been previously agreed upon;

(4) The agricultural lessee failed to adopt proven farm practices as determined under paragraph 3 of Section twenty-nine;

(5) The land or other substantial permanent improvement thereon is substantially damaged or destroyed or has unreasonably deteriorated through the fault or negligence of the agricultural lessee;

(6) The agricultural lessee does not pay the lease rental when it falls due: Provided, That if the non-payment of the rental shall be due to crop failure to the extent of seventy-five per centum as a result of a fortuitous event, the non-payment shall not be a ground for dispossession, although the obligation to pay the rental due that particular crop is not thereby extinguished; or

(7) The lessee employed a sub-lessee on his landholding in violation of the terms of paragraph 2 of Section twenty-seven.

 

Baka naman may violation si lessee na bumabagsak sa Sec. 36. Pupwede siyang kasuhan ng ejectment pag ganun.

 

 

2. kapag revival of judgment sa same branch po ba gaganapin ung kaso o panibagong branch po?

 

depende kung personal action o real action yung nire-revive. Pag personal action (daños etc.) kung saan nakatira yung partido. Pag real action (titulo o pag-aari ng lupa ang usapin) sa hukuman kung nasaan yung lupa. Kung kaya't kung maraming branch ng RTC sa lugar kung nasaan yung lupa, hindi siya automatic na sa same branch babagsak. Ira-raffle din siya.