Documentos de Académico
Documentos de Profesional
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MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2001
Chapter 2:
TORRENS SYSTEM – ORIGIN, NATURE & GENERAL
CHARACTERISTICS
ADVANTAGES:
1.Abolishes endless fees
2.Eliminates repeated examination of titles
3.Reduces records enormously
4.Instantly reveals ownership
5.Protects against encumbrances not noted on the Torrens certificate
6.Makes fraud almost impossible
7. It assures
8.Keeps up the system without adding to burden of taxation; beneficiaries of the system pay the fees
9.Eliminates tax titles
10. Gives eternal title as state ensures perpetuity
11. Furnishes state title insurance rather than private title insurance
12.Makes possible the transfer of titles or of loans within the compass of hours instead of a matter of days
PURPOSE OF TORRENS LAW: quiet title to land – once registered, owner might rest secure
PERSONS BOUND WHEN TITLE NOT REGISTERED
1. Grantor
2.Heirs & devisees
3.Persons with actual notice
VOLUNTARY DEALINGS
•Need to present title – to record the deed in registry & to make memorandum on title
INVOLUNTARY DEALINGS
•No presentation required; sufficient that annotation in entry book is sufficient
FORMAL REQUISITES OF A DEED
1. Full name
2. Nationality
3.Place of residence
4.Postal address of grantee or other persons acquiring or claiming interest
5. Civil status
6.Whether or not corporation
1.Register of Deeds to keep an entry book – day book
2.Enter in order of reception all deeds & voluntary instruments, write &processes re land -Year, month, day, time,
minute of reception of instrument;Registered from time of entry
3.Fees of 5 bucks per document to be paid within 15 days
4.Note memorandum & sign & issuance of certificate
5.Documents are numbered & indexed & indorsed with reference to certificate of title– public records
6.Subject to reasonable regulation
•Cost borne by vendor
Real Mortgage:
-Subject matter is real property
-Public document only
-Right of redemption for 1 year
-Deficiency can be recovered
Chattel Mortgage:
-Subject matter is movable
-May be in private document provided there is affidavit of ggod faith
-No right of redemption
-Deficiency cannot be recovered
SUBJECT MATTER
•Real property plus all its accessions unless contrary is stipulated
•Future property – without legal effect
•Future improvements – deemed included
•Fruits & rents of mortgaged property deemed included
•Continuing credit secured by mortgage valid
FORMS:
1.Private document – void & inexistent
2.Public instrument but not recorded – binding between parties but not 3rd persons without notice
3.Public document & registered – valid & binding to 3rd parties
MAY MORTGAGE BE REGISTERED WITHOUT DUPLICATE TITLE:Ye s
•If being withheld by the owner, Register of Deeds notifies by mail within 24 hours to registered owner:
1.Stating that mortgage has been registered
2.Requesting that owner’s duplicate be produced so that memorandum be made thereof
•Owner refuses to comply within reasonable time; Register of Deeds to notify court & court may enter order
requiring owner to produce certificate
PARTIES IN FORECLOSURE SUIT: all persons claiming interest subordinate in right to mortgagee
ACTION TO FORECLOSE: Prescribes in 10 years (written contract)
VENUE: Per stipulation or in absence thereof, where the property lies
FORECLOSURE
JUDICIAL
a.Mortgagee to petition in court for foreclosure
b.Court to render order for debtor to pay sum due within 90 days and if not paid from date of service, property
be sold at public auction
c.Notice & Publication
d.Public auction: sale to highest bidder
e.Sheriff to issue certificate confirming judicial foreclosure
f.File with Register of Deeds final decree of court confirming sale
g.Memo entered in certificate of title
h.If right of redemption exist, certificate of title of mortgagor not to becancelled but memorandum shall be
entered upon the certificateduplicate & original
i.After expiry of 1 year redemption period & no redemption, title is consolidated to new owner
j.Purchaser to be entitled to new certificate of title & memorandum endorsed on mortgage deed
k.If there is redemption, memorandum to be annotated on certificate of title
2. EXTRA-JUDICIAL
•Allowed only if stipulation between party authorizes extra-judicial foreclosure
•Cannot be made legally outside of city where land lies
•Publication required: post notices for 20 days in 3 public places whereproperty lies & if property is more than
P400.00, publication must be for3 consecutive weeks in news paper of general circulation
•If foreclosure by rural banks, exempt from publication in newspaper for loans not exceeding 3,000.00
•Registration of sale in Register of Deeds:
a.Deed of sale must be supported by certificate of sheriff that saidsale was conducted accordingly stating the date,
time, place ofsale, names of creditor & debtor, description of property, name ofhighest bidder, selling price
b.Present in Register of Deeds where land lies
c.Memorandum on back of certificate is made
d. After expiration of 1 year of redemption period – title isconsolidated if no redemption exercised: purchaser to
file withRegister of Deeds the deed of sale & sworn statement attestingto fact that there is no redemption
e.New certificate of title issued in favor of vendee
f.If redeemed – notice of redemption shall be registered &accomplished by way of memorandum on proper
certificate of title
RIGHT OF REDEMPTION
•Payment of purchase price plus 1% per month plus taxes if paid by purchaser
•To be exercised within 1 year after registration of sale
RIGHT TO DEFICIENCY – allowed
RECOVERY OF DEFICIENCY:Allowed
CHAPTER 11: LEASE
LEASE – one of parties deliver possession of property to another who is obliged to pay
rent for use of such property
REGISTRATION OF LEASE
1.File with Register of Deeds the instrument creating lease together with Owner’s Duplicate of certificate of title
2.Register of Deeds to register by way of memorandum upon certificate of title
3.No new certificate shall be issued
WHEN PROHIBITION IN MORTGAGED PROPERTY AS
REGARDS SUBSEQUENT CONVEYANCES,ETC.:
Leasehold cannot be registered in the title thereof
EFFECT OF REGISTRATION:
1.Creates a real right but without prejudice to rights of 3rd persons
2.If not registered – valid as between parties but not to 3rd persons without notice
REGISTRATION – lessor not required to initiate; lessee shall initiate
ALIENS:
1.May be granted temporary rights for residential purposes
2.Limit: 25 years, renewable for another 25 years
WHO ELSE MAY REGISTER: Builder in Good Faith
CHAPTER 12: TRUSTS & POWERS OF ATTORNEY
TRUST – obligation of a person to whom legal title to property is transferred to hold the property according to
confidence reposed in him
2 K INDS:
1.Expressed – need to be in writing; cannot be proved by parole evidence
2.Implied – exist by operation of law; can be proved by parole evidence
a.Property is bought but paid by another party
b.Donation is made but donee have no beneficial interest thereon
c.Price of sale of property is loaned & conveyance is made to lender to secure fulfillment of loan
d.Land passes by succession to a person but legal title is put in another’s name
e.2 persons purchase property but placed only in one’s name
f.Guardian uses funds of ward to buy property
g.Property is acquired thru mistake or fraud
POWER OF ATTORNEY – authority granted to a person to dispose one’s property
TRUST DIFFERENTIATED FROM POWER OF ATTORNEY
1.Trust has 3 parties while power of attorney has 2 parties
2.Trust is for benefit of 3rd party while power of attorney is for benefit of principal
REGISTRATION OF TRUST
1.Sworn statement claiming interest by reason of an implied trust with descriptionof land & reference to
number of certificate shall be registered in Register of Deeds
2.Provided not prohibited to do so by instrument creating the trust
APPOINTMENT OF TRUSTEE BY COURT
•Certified copy of decree shall be presented to Register of Deeds & surrender duplicate certificate
•Cancel duplicate & new certificate shall be entered by Register of Deeds
ACTION FOR RECONVEYANCE BASED ON IMPLIED TRUST
•Prescribes in 10 years
•If acknowledged in written form – becomes express trust – prescribes uponrepudiation
CHAPTER 13:INVOLUNTARY DEALINGS WITH REGISTERED LAND
INVOLUNTARY DEALINGS – transactions affecting land in which cooperation of registered
owner is not needed: it may even be against his will
ATTACHMENT
•A writ issued at the institution or during progress of an action commanding thesheriff to attach the property, rights,
credits or effects of the defendant to satisfydemands of the plaintiff
•Kinds:
a. Preliminary
b. Garnishment
c.Levy on execution
1. EXECUTION SALE
•To enforce a lien of any description on registered land, any execution oraffidavit to enforce such lien shall be filed
with Register of Deeds whereland lies
•Register in registration book & memorandum upon proper certificate of title as adverse claim or as
anencumbrance
•To determine preferential rights between 2 liens: priority of registration of attachment
2. TAX SALE
•Sale of land for collection of delinquent taxes and penalties due the government
•In personam (all persons interested shall be notified so that they are given opportunity to be heard)
•Notice to be given to delinquent tax payer at last known address
•Publication of notice must also be made in English, Spanish & localdialect & posted in a public & conspicuous
place in place whereinproperty is situated & at main entrance of provincial building
•Sale cannot affect rights of other lien holders unless given right to defend their rights: due process must be
strictly observed
•Tax lien superior to attachment
•No need to register tax lien because it is automatically registered once the tax accrues
•But sale of registered land to foreclose a tax lien need to be registered
PARTITION/SETTLEMENT OF ESTATE
1. JUDICIAL
•After entry of final judgment of partition, copy certified by clerk of court to be filed with Register of Deeds
•Each owner to gave separate certificate of title (duplicate)
•If ordered to be sold, purchaser shall be entitled to a certificate of title entered in his name upon presentment of
order confirming sale
2. EXTRAJUDICIAL
a.Decedent died intestate
b. No debts
c.Heirs are all of legal age, or minors represented by guardian
•Heirs to execute public instrument to be filed with Register of Deeds
•If disagree with each other, file in court ordinary action for partition
•If there is only 1 heir, may adjudicate to himself entire estate via affidavit to be filed with Register of
Deeds
•If there is movables involved, bond to be filed equivalent to valueof property as certified under oath by
parties conditioned uponpayment if any just claim which may be filed by creditor within 2years after
distribution
•Publication in newspaper of general circulation for 3 weeks; not binding to those without notice
•Final after 2 years
ORAL PARTITION, WHEN DEEMED VALID
•In provinces when person dies leaving property not covered by Torrens system– to avoid legal expenses, heirs
make a list of property, pay off debts & assign to each
•Statute of frauds – do not operate because it is not a conveyance but a separation of property and designation of
part which belongs to them
WILLS AND LETTERS OF ADMINISTRATION
•Executor required to file with Register of Deeds a certified copy of his letters ofadministration or the will if there is
a will in order that Register of Deeds mayregister upon certificate a memorandum with reference to file no & date of
filing
COURT AUTHORITY NEEDED IN ORDER TO SELL
1.May be dispensed with if will empowers him sell
2.Without authority first secured, heir may sell subject to result of pending administration
LIABILITY:
1.Satisfy claims from private persons first
2.When unsatisfied – secondary liable is the National Treasurer who shall paythru assurance fund;
thereafter Government shall be subrogated to rights ofplaintiff to go against other parties or securities
MEASURE OF DAMAGES:
•Based on amount not greater than fair market value of land
•Amount to be recovered not limited to 500,000 which is maintained as standing fund
•If fund is not sufficient, National Treasurer is authorized to make up for deficiency from other funds available to
Treasury even if not appropriated
FISHPONDS
Before: included in definition of agriculture, conversion of agricultural land to fishponds does not change
character of land
Now: restricted meaning; fishponds has distinct category; cannot be alienated but may be leased from
government.
DIRECTOR OF LANDS
•Quasi-judicial officer
•Findings of fact conclusive on higher court with absence of fraud, mistake other than error of judgment; but not
with regards to finding of law
•Empowered to alienate and dispose lands
MODES OF ALIENATING PUBLIC LANDS:
1. Homestead settlement
2. Sale
3.Confirmation of imperfect or incomplete title
a. Judicial legalization
b. Administrative legalization
•Lease not included since lease does not transfer ownership; free-title grant: freedistribution of public lands to
encourage people to cultivate; government furnishesthe applicant with tolls plus cash allowance to enable him to
cultivate
PATENT
HOMESTEADER
•If he dies, succeeded by heirs in the application
LEGAL RESTRICTION IN DISPOSITION BY NON-CHRISTIANS (CULTURAL MINORITIES)
•Conveyance is valid if able to read and can understand language where deed is written
•Otherwise, not valid unless approved by Commission on National Integration
•Safeguard is to protect them against fraud/deceit