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PHILIPPINE REAL ESTATE LAWS,
FUNDAMENTALS OF PROPERTY OWNERSHIP, REAL ESTATE PRACTICE & TAXES
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PHILIPPINE REAL ESTATE LAWS
FUNDAMENTALS OF PROPERTY OWNERSHIP, REAL
ESTATE PRACTICE & TAXES
RIGHT TO OWN
1. General Rule – Only Filipino citizens and corporations at
least 60% capital of which is owned by Filipinos are
entitled to acquire and own land in the Philippines.
2. Exceptions to the General Rule – Alien acquisition of
real estate in the Philippines is allowed in the following
cases:
a) Acquisition before the 1935 Constitution.
b) Acquisition thru hereditary succession if the acquiree is
a legal heir.
c) Purchase of not more than 40% interest in a condominium
project
d) Purchase by former natural born Filipino citizens subject
to limitations prescribed by B.P. 185 and R.A. 8179
3. A Filipina who marries an alien retains here Philippine
citizenship (unless the law of her husband’s country makes
her assume the citizenship of her husband because of such
marriage) and can therefore acquire real estate in the
Philippines.
Real Estate Ownership
CONCEPT OF OWNERSHIP
Ownership is the independent right of a person to the
exclusive enjoyment and control of a property including its
disposition and recovery subject only to the restrictions
established by law and rights of others.
RIGHTS INCLUDED IN OWNERSHIP
Fee simple consists of the so called
“bundle of rights” which are inherent in or appurtenant to
ownership, without any limitations or restrictions other
than those imposed by law or contract. The bundle of rights
include the following: 1) Right to possess 2)Right to use
and enjoy 3) Right to the fruits 4) Right to dispose 5)
Right to vindicate or recover
LIMITATIONS ON RIGHT OF OWNERSHIP
1) Those imposed in general by the State in the exercise of
the power of taxation, police power, and power of eminent
domain.
2) Those imposed by law such as legal easement, requirement
of legitimate succession, zoning, building code, rent
control, urban and agrarian reform, subdivision regulations,
escheat.
3) Those imposed by the grantor of the property on the
grantee by contract, such as donation, last will, or
usufruct.
4) Those imposed by the owner himself, such as voluntary
easement, lease, mortgage.
SURFACE, SUBSURFACE AND AIR RIGHT
Land, in its legal signification, extends from the surface
downwards to the center of the earth and extends upwards
indefinitely to the skies. The surface and subsurface of
rights of an owner entitle him to construct thereon any
works or make any plantations and excavations without
detriment to servitudes and special laws. Air right is the
right of an owner to use and control the air space over his
land subject to the requirements of aerial navigation, laws,
or contract.
RIGHT TO HIDDEN TREASURE
Hidden treasure belongs to the owner of the land, building,
other property on which it is found. When the discovery is
made on the property of another, or of the State or any of
its subdivisions, and by chance, one-half of the treasure
shall be allowed to the finder. If the finder is a
trespasser, he shall not be entitled to any share of the
treasure. If the things found be of interest to science or
arts, the State may acquire them at their just price, which
shall be divided in conformity with the rule above stated.
Hidden treasure, for legal purpose, is understood to be any
hidden unknown deposit of money, jewelry, or other precious
objects, the lawful ownership of which does not appear.
RIGHTS OF ACCESSION
1) In General – The ownership of property gives the right by
accession to everything which is produced thereby, or which
is incorporated or attached thereto, whether naturally or
artificially.
2) With Respect to Produce of Property – To the Owner
belongs the:
a) Natural fruits – the spontaneous product of the soil
b) Industrial fruits – those produced by land cultivation or
labor
c) Civil fruits – the rental income of buildings and /or
lands
3) With Respect to Immovable Property:
a) The owner of the land on which anything has been built,
sown or planted in good faith shall have the right:
aa) To appropriate as his own the works, sowing or planting
after payment of indemnity provided by law, or
bb) To oblige the builder or planter to pay the price of the
land. However, the builder of planter cannot be obliged to
pay for the land if its value is considerably more than that
of the building or planting. In such case, he shall pay
reasonable rent if the owner does not choose to appropriate
the building after proper indemnity. The parties shall agree
on the terms of the lease and in case of disagreement, the
court shall fix the terms thereof.
b) The owner of the land on which anything has been built,
planted or sown
In bad faith may:
aa) Demand the demolition of the work or removal of the
planting or sowing at the expense of the builder or planter,
or
bb) compel the builder or planter to pay the price of the
land and the sower, the proper rent. The landowner is also
entitled to damages from the builder planter or sower.
cc) To the owners of land adjoining the banks of rivers
belong the accretion which they gradually receive from the
effects of the current of the water.
dd) Whenever a river, changing its course by natural causes,
opens a new bed through a private estate, the new bed shall
become a public dominion.
Modes of acquiring title
Private Grant
–voluntary
transfer or conveyance of private property by a private
owner, such as sale or donation.
Public Grant
– acquisition of alienable lands of the public domain by
homestead patent, free patent, sales patent, or other
government awards.
Involuntary Grant
– acquisition of private party against the consent of
the former owners, such as foreclosure sale, execution
sale, or tax sale
Inheritance
– acquisition of private property through hereditary
succession
Reclamation
- filling of submerged land, subject to existing laws
and government regulations.
Accretion –
acquisition of more lands adjoining the banks of rivers due
to the gradual deposit of soil as a result of the river
current
Prescription
– acquisition of title by actual, open, continuous, and
uninterrupted possession in the concept of owner for the
period required by law
ACQUISITION BY FORMER NATURAL BORN FILIPINO
CITIZENS
1. Mode of acquisition is not limited to voluntary deeds
(such as sale or donation) but includes involuntary deeds
(such as foreclosure, execution or tax delinquency sale)
2. Maximum area that may be acquired:
a) For residential purpose – 1,000 square meters of urban or
one hectare of rural land.
b) For business purpose – 5,000 square meters of urban land
or 3 hectares of rural land.
Business purpose refers to the use of land primarily,
directly, and actually in the conduct of business or
commercial activities in the broad areas of agriculture,
industry, and services, including the lease of the land but
excluding the buying or selling thereof.
In case of married couple where both
spouses are former natural born Filipino citizens, both of
them may avail of the right provided that the total
acquisition shall not exceed the maximum area allowed.
A transferee who acquired urban or rural
land for residential purpose while still a Filipino citizen
may acquire additional urban or rural land for residential
purpose which, when added to that already owned by him,
shall not exceed the maximum area allowed by law.
Rule in case of double sale: The priority
of rights in case of double sale of titled property shall be
governed by the following rules:
1. The buyer who acquired in good faith
and was the first to register the sale shall have a
better right.
2.If none of the buyers registered the
sale, the buyer who acquired to good faith and was the
first one in possession shall have a better right.
3. If none of the buyers registered the
sale or took possession, then the buyer who acquired in good
faith and has the oldest title shall have a better
right
Contract
of Sale
and Contract to Sell
1. Distinction: In a contract of sale,
there is already a transfer or ownership. In a contract to
sell, there is no transfer of ownership yet but merely a
mutual promise to buy and sell
. Criterion: The test to determine whether
a contract is a contract of sale or a contract to sell is
not the manner of payment – whether cash or installment, but
whether or not there is conveyance of ownership in the
dispositive or grant clause of the deed. There is transfer
of ownership when the dispositive clause states that the
vendor “hereby sells, transfers and conveys unto the vendee
in a manner absolute and irrevocable x x x”
Rights of buyer who has paid two
years or more of installments:
1. To pay, without additional interest,
any installment due within the grace period which is
equivalent to one month for every year of installment
payment, provided that such right can only be availed of
once every five years.
2.To receive a thirty-day notarial notice
of cancellation before his contract can be cancelled for
delinquency
Rights of buyer who has paid less
than 2 years of installment
1. The grace period to pay without
additional interest due is fixed as 60 days
2. For cancellation of contract due to
delinquency, the buyer is only entitled to receive a 30-day
notarial notice of cancellation without right to receive the
cash surrender value pf his payments
Right to refund under P.D. 957 &
Maceda Law
Presidential Decree 957:
Right to refund applies when the developer fails to complete
the development within the required period. Refund is 100%
of total payments
Maceda Law:
Right to refund applies as a requisite for cancellation of
contract due to delinquency when the buyer has paid at least
2 years. Refund is 50% of total payments; additional 5% per
year after the 5th year.
MACEDA LAW (R.A. 6552)
When the buyer is delinquent in his payment
Objective: To protect installment buyers of real estate
against onerous and oppressive conditions.
Applicability – Applies to sale or financing of residential
estate on installment payment covered by contract to sell
and not sale with mortgage, but excluding industrial lots,
commercial building, and sales to tenants under R.A. 3844.
Rights of buyer who has paid two years or more of
installments: a) To pay, without additional interest, any
installment due within the grace period which is equivalent
to one month for every year of installment, provided that
such right can only be availed of once every five years. b)
To receive a thirty-day notarial notice of cancellation
before his contract can be cancelled for delinquency. c) To
receive the cash surrender value of his total payments
before his contract can be cancelled due to delinquency. The
refund is equivalent to fifty percent of total payments and,
after the fifth year, an additional five percent per year of
installment payment, but not to exceed ninety percent of
total payments. d) To transfer or assign his right to the
contract e) To register or annotate his contract on the
title f) To pay, without additional interest, the full
principal balance of the price before the term of the
contract.
Rights of buyer who has paid less than two years of
installment – The buyer has practically the same rights as a
buyer who has paid two years or more of instalmments, except
for the following differences:
a) The grace period to pay without additional interest on
any installment due is fixed at sixty days
b) For cancellation of contract due to delinquency, the
buyer is only entitled to receive a thirty-day notarial
notice of cancellation but without right to receive the cash
surrender value of his payments.
FOREIGN OWNERSHIP OF CONDOMINIUM UNIT
In the condominium concept of ownership, absolute ownership
by a foreigner is allowed not to exceed forty percent
interest in the project. The unit owner is the absolute
owner of the space within the interior surface of his unit,
but is only a co-owner of the exterior façade of the unit.
RIGHTS OF A CONDOMINIUM UNIT OWNER
Absolute ownership of his unit
Co-ownership of land and common areas
Exclusive easement of the space of his unit
Non-exclusive easement to common areas for ingress or egress
Right to sell, lease, or mortgage his unit
Right to repair, paint, decorate the interior surface of his
unit
Right to participate and vote in condominium corporation
meetings
OBLIGATIONS OF A CONDOMINIUM UNIT OWNER
Pay the realty tax on his unit
Pay the insurance on his unit
Pay the shared monthly dues for maintenance of common
areas/amenities/garbage disposal
Comply with use restrictions
P.D. 957 When the developer fails to complete the
development within the required period
The refund is 100% of total payments less penalty interest
plus legal interest of money
REAL ESTATE PRACTICE
& REAL ESTATE TAXES
Capital Gains Tax
- Income tax payable to the BIR for the sale, transfer, or other
disposition of real estate classified as capital asset. .
Transfer Tax - A
tax payable to the local government unit for sale, transfer or
other disposition of real estate, whether capital or ordinary
asset
Withholding Tax -
A tax payable to the BIR on the sale, transfer or other
disposition of real estate classified as ordinary asset.
Cost approach - a
method of estimating the fair market value of an improvement by
estimating present reproduction cost and deducting depreciation.
Economic life -
The period during which a property can be profitably used or
expected to generate more income than expenses.
Principle of diminishing returns
- States that the application of more factors
of production will tend to increase net income up to a certain
point, beyond which the introduction of more factors of
production will tend to decrease net income.
Principle of Progression
- An appraisal principle which holds that the value of a
property tends to be enhanced by association with superior
properties
Principle of Regression
- An appraisal principle which holds that the value of a
property tends to be adversely affected by association with
inferior properties.
Principle of Substitution
- an appraisal principle which holds that the value of a
replaceable property is inferred from the value of an equally
desirable substitute property.
Presentation:
concept – It is an orderly written or oral explanation of facts
and figures that make a given property attractive to a prospect.
Scope of coverage: 1. Property Identification – location,
block number, lot number, lot area and dimensions, floor area,
type of property, terrain, view, description of improvements,
zoning classifications, facilities and amenities, titled or to
be titled, price, terms, discounts, financing. 2. Advantages and
benefits – quality of neighborhood, availability of public
transportation, proximity to public marker / schools /
hospitals, reasonableness of price. 3. For income properties –
present potential income, return of investment. 4. Lot and
vicinity plan, subdivision map, and pictures of the property
Demonstration:
concept – It is the process of showing the property and pointing
out its physical qualities and other advantages and benefits to
arouse the desire to own it. Preparing for demonstration:
Preparation of checklist of physical attributes and other data
which may be the object of prospect’s inquiry. Update
availability with the developer.
Organization of selling points to be
emphasized
Anticipation of possible objections
Appointment with prospect and notice to
owner
üSelection of ideal route to create a
favorable impression of the neighborhood
Negotiation:
concept – It is the process of reconciling the opposing views of
the parties to a transaction as to price and terms.
Items which should be covered in negotiation:
Price and terms and discounts
Expenses for execution and registration of sale
Date for delivery of property
Items included or excluded in a sale
Manner of payment & financing
•Update Payment of Eletricity,
Water, Telephone
•Update Payment of Realty Tax
•Penalties or Forfeiture in case
non-compliance
•Who is going to process the
documents and deadline
•Appointments for Earnest money,
or sales contract or deed f sale
Common difficulties
*Silent objection
– hesitancy of the prospect to express his objection
thereby depriving the broker of the opportunity to
answer or overcome it
*Presence of supposed advisers of the
prospect who give negative remarks which tend to
undermine the transaction
*Failure or inability to analyze
prospects real need and affordability
*Promise of a prospect to
call the broker which is almost always
broken
*Waiting advice from
spouse or relative who were not present
during the tripping
*Broker’s failure to
identify time wasters such as window
shoppers or speculators
Closing
*Persuading the prospect to visit the
developer’s office to be able to hold the property with
a reservation fee
*Securing papers/documents from
developers such as copy of title, lot plan, deed of
restrictions, copies of reservation agreement, deed
of restrictions, contract to sell, deed of sale
*Securing papers/documents from
prospects such as copy of income tax returns, bank statements,
certificate of employment, copy of passport, TIN, residence
certificate etc
*Arrangement of appointment
between parties for contract signing and payment
Non-forfeiture of Payments. No
installment payment of the buyerMay be forfeited by the
developer when the buyer who is not delinquent, and after due
notice, desists from further payment due to failure of the
developer to complete within the required period. The buyer may
at his own option, be reimbursed with total amount paid
including amortization interest, with interest thereon at legal
rate.
Mortgage of Project
– No mortgage of any lot by the project owner/developer without
permit to mortgage from HLURB. Permit to mortgage may be granted
upon submission of proof that the loan proceeds will be used for
development and verified undertaking by the mortgagee to release
from the mortgage any lot/unit whose loan value has been paid.
In case a mortgage was executed by owner/developer pursuant to
HLURB permit to mortgage, the buyer may at his own option, pay
his installmentdirectly to the mortgagee.
Alteration of Plans
– any alteration in the approved plans relating to open spaces,
facilities and other forms of development require prior approval
from HLURB (now LGU) and written consent of Homeowners
Asscociation
Advantages of condominium
Concept
Enhance
affordability by fractionalizing cost of land & building
Facilities utilities, amenities and
services will cost less to build and maintain
Economy
in land space. Families holding title contiguous
lands of say 40 or 50 square meters by obtaining
adequate housing by consolidating their lots and
constructing a condominium project
Enhances
marketability because foreigners can buy
Multiples
saleable or rentable floor areas by as
many storeys put upEliminates the
routinary chores of daily maintenance,
security, and garbage collection
associated with single-detached
dwellings
Rights of unit owner
1.Absolute ownership of his unit.
2.Co-ownership of land and common areas.
3.Exclusive easement of the space of his
unit.
4.Non-exclusive easement to common areas
for ingress or egress.
5.Right to sell, lease, or mortgage his
unit.
6.Right to repair, paint, decorate the
interior surface of his unit.
7.Right to participate and vote in
condominium corporation meetings.
Obligations of condominium unit
owner
1.Pay the realty tax on his unit.
2.Share the realty tax on the land and
common areas.
3.Pay the insurance on his unit.
4.Share the insurance on the common
areas.
5.Comply with use restrictions.
6.Pay dues and assessments.
7. Give other unit owners the
priority right to buy his unit (right of first
refusal). If so required by the master deed.
Dues and Assessments
1.The Deed of Restriction usually
provides for two kinds of assessments:
a.) Regular assessment – a monthly
obligation to fund ordinary project expenses, such as
security, garbage collection, repair and maintenance of
the common areas, electricity and water bills on the
common areas and realty tax and insurance on the common
areas.
b.) Special assessment – this is
imposed as the need arises, such as the need for
replacement of the generator.
Extent of interest in common
areas
In the absence of any provision
in the master deed, all unit owners shall have equal
share in the common areas. If the intent is to pro-rate
the unit owners’ interest on the common areas, such fact
must be expressly provided in the master deed. The
interest based on floor area of ownership is arrived at
by dividing the unit area by the total floor area of all
condominium units.
Condominium Corporation
Optional and Mandatory Requirement.
The condominium corporation is optional if no unit will
be sold in foreigners. However, the corporation is
mandatory if some units, not exceeding forty percent
interest in the project, will be sold to foreigners, in
which case title to the land will be transferred in the
name of the condominium corporation and thus comply with
the constitutional mandate that corporations may acquire
real estate provided that at least sixty percent
of its capital or membership is Filipino
1.Principal Purposes: a) To hold
title to the land and b) To set as the management
body of the condominium project.
2.Conflict with Master Deed. In case
of conflict between the articles of incorporation of
the condominium corporation and the master deed of
the condominium project, the latter should always
prevail because:
a) It is the matter deed which
gives birth in the condominium project. The project
cannot exist without a master deed, but it can exist
without a condominium corporation.
The condominium law specifically
provides that the articles of incorporation and by-laws
of the condominium corporation shall not conflict with
the master deed.
REAL ESTATE TAXATION
Assessment Level for Land:
Classification
Not more than
Residential 20%
of FMV
Commercial/ Industrial/
Mineral 50% of FMV
Agricultural 40%
of FMV
Timber 20%
of FMV Scientific/ Cultural/ Hospital
15% of FMV
Assessment Level of
Improvement:
FMV over Not over Resd’l
Comm’l/ Ind’l Agr’l Timber
175,000
0% 0% 0% 0%
175,000 300,000
10% 30% 25% 45%
300,000 500,000
20% 35% 30% 50%
500,000 750,000
25% 40% 35% 55%
750,000 1,000,000
30% 50% 40% 60%
1,000,000 2,000,000
35% 60% 45% 65%
2,000,000 5,000,000
40% 70% 50% 70%
5,000,000 10,000,000 50%
75% 50% 70%
10,000,000
60% 80% 50% 70%
Rate of Real Estate Tax
a) In Provinces – not
exceeding one percent of assessed value.
b In Cities and Metro Manila
Municipalities – not exceeding two percent of
assessed value.
Special Education Fund Tax
– an annual levy on real estate equivalent to one
percent of assessed value which shall be in addition
to the basic real estate tax
Date of Payment of basic
realty tax and SEF tax:
a)May be paid in four equal quarterly
installments on or before March 31, June 30,
September 30, and December 31.
Payment in advance of the schedule is
entitled to not more than twenty percent
discount.
Delinquent payment shall be subject to
interest of two percent per month but in no case
to exceed thirty six months
CAPITAL GAINS TAX
Rate and Basis Tax – the rate of
capital gains tax is six percent computed on the
following basis:
a) Sale of Lot: - Basis is price
per deed of sale or lot zonal value, whichever is
higher.
b) Sale is Lot with improvement: -
Basis is price per deed of sale, or lot zonal value plus
improvement value, whichever is higher.
Conditions for exemption from
Capital Gains Tax:
a) The seller is a natural person
and the capital asset sold is his principal residence
(family home).
b) The proceeds of the sale will
be used to acquire / purchase construct a new
family home.
c) The BIR is duly notified by
the taxpayer within thirty days from the date of sale
through a prescribed return, of his intention to avail
of the tax exemption.
d) The tax exemption can only be
availed of once every ten years.
If there is no full utilization for
the proceeds of the sale, the portion of the gain
presumed to have been realized from the sales shall be
subject to capital gains tax
Installment Sale – A sale is
considered on installment basis when the initial payment
in the year of sale is twenty-five percent or less, in
which case the transferor may opt to pay initially a
portion of the tax in accordance with the following
formula:
Initial Tax = Initial Payment
x Total Tax
Total Price
WITHHOLDING TAX
Transactions Subject to Withholding
Tax – Sale, exchange, or transfer of ordinary asset by
natural persons, corporations, estate or trust.
Rates and Basis – Computed on the same
basis as capital gains tax, the rates of creditable
withholding tax.
Rate of Withholding Tax
0% - When the property sold is part of
an HLURB registered socialized housing project of the
seller
1.5% - When the seller is habitually
engaged in real estate business and the price does not
exceed P500,000.00
3.0% - When the seller is habitually
engaged in real estate business and the price is over
P500,000.00
5.0% - When the seller is habitually
engaged in real estate business and the price exceeds P
2 million.
6.0% - When the seller is not
habitually engaged in real estate business.
TRANSFER TAX
1.Concept – A tax payable to the
local government (City or Provincial Treasurer) for
the sale or other disposition of real estate,
regardless of classification of the property.
2.The rate is not more than one
percent for properties located in cities and
municipalities in Metro Manila, and not more than
one-half percent for properties outside of Metro
Manila.
3.Basis is the contract price or
market value per tax declaration whichever is
higher. However, the local government may enact an
ordinance prescribing as basis the contract price or
zonal value, whichever is higher.
DOCUMENTARY STAMPS
1.On Sales – P15.00 per P1,000.00 or
a major fraction thereof, computed on the same basis
as capital gains tax, and payable within five days
following the month when the document was notarized.
2.On Mortgages – P20.00 for first
P5,000.00 and P10.00 per P5,000.00 after the first
P5,000.00
On leases – P3.00 for first P2,000.00
or fraction thereof, and additional P1.00 for every
P1,000.00 or fraction thereof in excess of the first
P2,000.00 for each year of the term of the lease
SALIENT
FEATURES OF E-VAT RELATING TO REAL ESTATE
Concept : Expand Value Added Tax is an indirect tax. It
can be passed on to the buyer. However, it is should be
inputed or built-in the price. The sales contract cannot
stipulate the “E-VAT shall be for the account of the
buyer.”
Transactions subject to E-VAT
1.Sale, barter or exchange or real
estate held primarily for sale to customers in the
ordinary course of trade or business where the
annual gross sales or invoice exceed P750,000.00,
except sale by real estate dealers and/or lessors of
house and lot and other residential dwellings price
P1.5 Million and below.
2.Lease of real estate for commercial
use when the annual gross receipts exceed
P750,000.00
3.Lease of real estate for
residential use when the monthly rental per unit
exceeds P10,000,000 and the annual gross receipts
exceed P750,000.00
Liability as non-VAT taxpayer
1.In cases where the real estate
dealer or lessor is not subject to E-VAT, he shall
be liable as a non-VAT taxpayer subject to three
percent tax. However, he has the option to register
as VAT taxpayer subject to 10% VAT with the benefit
of input tax.
Commissions of real estate brokers are
subject to E-VAT if the annual gross receipts exceed
P550,000.00, otherwise they shall be subject to seven
percent tax.
Real estate dealers are not allowed to
withhold the E-VAT from commissions of real estate
brokers
Computations of E-VAT payable
1.E-VAT payable = output tax (sales
receipts x 1/11) less input tax (purchase
receipts x 1/11)
Credit for input tax can only be
availed of if the payee is VAT-registered.
Basis of E-VAT
1.Cash/Deferred payment plan –
Basis is the contract price or zonal value whichever
is higher. In the absence of zonal value, basis
shall be market value per tax declaration or
contract price, whichever is higher.
Installment Plan
– Basis is actual consideration received, including
interests and other charges. However, upon full payment,
if the zonal value is higher than the total receipts /
collection, the additional E-VAT shall be paid
accordingly
Expenses for execution and
registration of sale In the absence of any stipulation
to the contrary, the seller shall pay for the execution
and registration of the sale.
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Untitled Document
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