Wednesday, April 17, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (05): Avoid legalese

1. Webinar: “Drafting in Plain Language - Leaving Legalese Behind” (National Conference of State Legislatures)



2. Lawyers, Stop Writing (and Saying) These Things Immediately by Brendan Kenny

Lawyers persist in using clumsy language even when it makes us less persuasive to our intended audience. Maybe that is because we believe or fear that words mean things when they really don’t. This may be a superstition, but it is a superstition that all the arguments in the world in favor of plain language will not overcome.

3. Will Rogers, famous American comedian, on the way lawyers write:

The minute you read something and you can’t understand it, you can almost be sure that it was drawn up by a lawyer.

Then if you give it to another lawyer to read and he doesn’t know just what it means, why then you can be sure it was drawn up by a lawyer.

If it’s in a few words and is plain and understandable only one way, it was written by a non-lawyer.
Some of you may be offended by what Rogers said and say that he was just a comedian having fun at the expense of lawyers. But did you know that you can find Rogers’ statue inside the building of the US Congress?

4. “The Decline and Fall of Gobbledygook: Report on Plain Language Documentation” (1990) by the Canadian Bar Association and Canadian Bankers Association Joint Committee Report:
“Legalese is a style of writing used by lawyers that is incomprehensible to ordinary readers.”

5. “Plain English for Lawyers” by Richard Wydick (Professor Emeritus of Law at the University of California - Davis; he has also lectured at the International Legislative Drafting Institute presented in New Orleans by the Public Law Center, a joint venture of Tulane and Loyola law schools):
We lawyers cannot write plain English. We use eight words to say what could be said in two. We use old, arcane phrases to express commonplace ideas.

Seeking to be precise, we become redundant. Seeking to be cautious, we become verbose. Our sentences twist on, phrase within clause, within clause, glazing the eyes and numbing the minds our readers. The result is a writing style that is wordy, unclear, pompous, and dull.
6. Elements of legalese, by Prof. David Mellinkoff from his book “Legal Writing: Sense and Nonsense” (1982):
  • Formalisms, such as comes now
  • Archaic words, such as hereby
  • Redundancies, such as each and every
  • Latin words, such as per curiam
7. “Lifting the Fog of Legalese,” by Prof. Joseph Kimble, president, Thomas M. Cooley Law School, Michigan, USA; Burton Awards for “Reform in Law” Federal Rules of Civil Procedure (2007) and Federal Rules of Evidence (2011):
Legal sentences tend to be long and flabby.
More generally, legal writing tends to be poorly organized and poorly formatted. And in its effort to be precise and exhaustive, it becomes excessively detailed and too often sinks into redundancy, ambiguity, and error.
The result is legalese — a form of prose so jumbled, dense, verbose, and overloaded that it confuses and frustrates most everyday readers and even many lawyers.
8. “Legalese violates nearly every principle of good writing” by Mark S. Mathewson, Director of Legal Publishing for the Illinois State Bar Association (Michigan Bar Journal January 2003)

9. “Plain English: Eschew Legalese” by Judge Gerald Lebovits (faculty member of Columbia University - Law School, Fordham University School of Law, and New York University School of Law)

10. US Supreme Court Justice Clarence Thomas on accessibility (from Bryan Garner’s interviews, Scribes Journal of Legal Writing Volume 13):
I’d love one day for someone at a gas station who is not a lawyer to come up to me and say to me, “You know, I read your opinion, and I don’t agree with you.” Wouldn’t that be wonderful? “I’m not a lawyer, I read your opinion, I understood it, I don’t agree with you, but thanks for making it accessible.” So we talk of it in terms of accessibility.
11. Chief Justice Chan Sek Keong, third Chief Justice of the Republic of Singapore:
I noticed one difference in myself from having been Attorney-General for 14 years. I am not able to write and express myself in the same way as I did 15 years ago. I read one of the judgments I wrote 15 years ago and thought I couldn’t write in that way today. After 14 years as a legal adviser to the Government, I had got into the habit of writing concisely and going straight to the point. I think I might have lost the knack to express myself in a literary style. Government minutes are written in plain English. Now, I try to use short sentences to capture all my ideas and arguments. I can’t go back to my old style, and I am not sure that going back to it is right. I think that Court of Appeal judgments should be expressed in language that a reasonably-educated layman can understand.

Free seminars:

1. “English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

2. “Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc.

StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American.

StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.

Friday, April 12, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (04): Warren Buffett’s advice on good writing

Warren Buffett is an American investor, industrialist, and philanthropist. He was ranked as the world’s richest person in 2008 and as the third richest in 2011. In the preface to the US SEC Plain English Handbook (1988), Buffett wrote:

For more than forty years, I’ve studied the documents that public companies file. Too often, I’ve been unable to decipher just what is being said or, worse yet, had to conclude that nothing was being said. If corporate lawyers and their clients follow the advice in this handbook, my life is going to become much easier.
There are several possible explanations as to why I and others sometimes stumble over an accounting note or indenture description. Maybe we simply don’t have the technical knowledge to grasp what the writer wishes to convey. Or perhaps the writer doesn’t understand what he or she is talking about. In some cases, moreover, I suspect that a less-than scrupulous issuer doesn’t want us to understand a subject it feels legally obligated to touch upon.
Perhaps the most common problem, however, is that a well-intentioned and informed writer simply fails to get the message across to an intelligent, interested reader. In that case, stilted jargon and complex constructions are usually the villains.
Write with a specific person in mind. When writing Berkshire Hathaway’s annual report, I pretend that I’m talking to my sisters. I have no trouble picturing them: Though highly intelligent, they are not experts in accounting or finance. They will understand plain English, but jargon may puzzle them. My goal is simply to give them the information I would wish them to supply me if our positions were reversed. To succeed, I don’t need to be Shakespeare; I must, though, have a sincere desire to inform. (boldfacing supplied)

When the US SEC was crafting its Plain English guidelines for disclosure documents, its then chairman Arthur Levitt asked Buffett to rewrite the following paragraph into Plain English:

Original paragraphBuffett’s Plain English revision
Maturity and duration management decisions are made in the context of the average maturity orientation for each Fund, as set forth in the Prospectus. The maturity structure of each Portfolio is adjusted in anticipation of cyclical interest rate changes. Such adjustments are not made in an effort to capture short-term, day-to-day movements in the market, but instead are implement-ed in anticipation of longer term, secular shifts in the levels of interest rates (i.e., shifts transcending and/or not inherent to the business cycle). We will try to profit by correctly predicting future interest rates. When we have no strong opinion, we will generally hold intermediate-term bonds. But when we expect a major and sustained increase in rates, we will concentrate on short-term issues. And, conversely, if we expect a major shift to lower rates, we will buy long bonds. We will focus on the big picture and won’t make moves based on short-term considerations.

Relevant links:

1. What’s Warren Buffett's Secret to Great Writing? by Lawrence A. Cunningham. George Washington University Law School

2. Five Ways to Write Like Warren Buffett - Legal Writing Pro

3. How To Write Like Warren Buffett -- Or Not (Forbes)

4. Three ways to write like Warren Buffett (Management Today)

5. The 5 Greatest Letters Warren Buffett Has Ever Written (Business Insider)

6. How Warren Buffett approaches writing Berkshire Hathaway’s letter to shareholders (CNBC)



Free seminars:

1. “English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

2. “Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc.

StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American.

StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.

Saturday, April 06, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (03): Classic advice on good writing

1. The secret of good writing, by Mark Twain (in a letter to a 12-year-old boy

“I notice that you use plain, simple language, short words, and brief sentences. That is the way to write English—it is the modern way and the best way. Stick to it; and don’t let the fluff and flowers and verbosity creep in.”

From Wikipedia: Samuel Langhorne Clemens (November 30, 1835 - April 21, 1910), known by his pen name Mark Twain, was an American writer, humorist, entrepreneur, publisher, and lecturer. His novels include The Adventures of Tom Sawyer (1876) and its sequel, the Adventures of Huckleberry Finn (1885), the latter often called “The Great American Novel.”

2. Recommendations by H.W. Fowler (1906):

  • Prefer the familiar word to the far-fetched.
  • Prefer the concrete word to the abstraction.
  • Prefer the single word to the circumlocution.
  • Prefer the short word to the long.
  • Prefer the Saxon word to the Romance word.
3. George Orwell in “Politics and the English Language” (1946):
  • Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
  • Never use a long word where a short one will do. If it is possible to cut a word out, always cut it out.
  • Never use the passive where you can use the active.
  • Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
  • Break any of these rules sooner than saying anything outright barbarous. 
From Wikipedia: Eric Arthur Blair (25 June 1903 – 21 January 1950), better known by his pen name George Orwell, was an English novelist, essayist, journalist and critic, whose work is marked by lucid prose, awareness of social injustice, opposition to totalitarianism, and outspoken support of democratic socialism.

Related resource: “Why George Orwell’s Ideas About Language Still Matter for Lawyers” by Judith D. Fischer, Montana Law Review

“The twin themes of ‘Politics and the English Language’ are that writers should express themselves in plain English and that ‘euphemism, question-begging and sheer cloudy vagueness’ prevent or conceal clear thought.”

4. The “Brevity Memo” (August 9, 1940) by Winston Churchill, UK Prime Minister



5. “Keep it clear, keep it simple” (Feb. 27, 1979) by Lee Kuan Yew, first Prime Minister of Singapore

“The use of words, the choice and arrangement of words in accordance with generally accepted rules of grammar, syntax and usage, can accurately convey ideas from one mind to another. It can be mastered.”

“The written English we want is clean, clear prose - not elegant, not stylish, just clean, clear prose. It means simplifying, polishing and tightening.”

“Remember: That which is written without much effort is seldom read with much pleasure. The more the pleasure, you can assume, as a rule of thumb, the greater the effort.”

Free seminars:

1. “English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

2. “Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc.

StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American.

StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.

Tuesday, April 02, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (02): Free resources in English grammar

Poor grammar compounds the problem of bad legal writing among Filipinos. One media report claims that “many graduates from our top universities have English language skills comparable only to 2nd grade children from Western countries.” As a law student, bar examinee, or legal writer, you must master the rules of English grammar.

1. The Internet offers thousands of free resources on English grammar. Some of the best resources are:

Better English for everyone

Activities for ESL Students

Jose Carillo’s English Forum

Capital Community College Guide to Good Grammar

OWL English Purdue Grammar, Punctuation, Spelling. Sentence Structure, and other exercises

Daily Writing Tips (Grammar 101 and Grammar)

The Simple Secrets Of Writing & Speaking (Almost) Like A Professional” College Edition by Philip Yaffe (free PDF, 144 pages, 483 kb), from Plain Language Commission

Interactive English grammar and vocabulary exercises based on Korean historical dramas (with time limit and automatic scoring): These exercises are designed for Asians who are beginning learners of English. If you’re already an advanced learner of English, you can also use these exercises to refresh your knowledge. Thus, the exercises focus on errors in grammar that Chinese, Japanese, Koreans, Filipinos, Malaysians, Indonesians, etc. commonly make with articles, prepositions, gender pronouns, tenses, and subject-verb agreement, among others.

2. Free resources from the New York State Bar Journal: articles by Judge Gerald Lebovits (faculty member of Columbia University - Law School, Fordham University School of Law, and New York University School of Law)
If I Were a Lawyer: Tense in Legal Writing
Do’s, Don’ts, and Maybes: Legal Writing Grammar - Part I

Do’s, Don’ts, and Maybes: Legal Writing Grammar - Part II

3. 15 Grammar Goofs That Make You Look Silly [Infographic] from Copyblogger.com

Click the picture above to view or download
the complete infographic from Copyblogger (600 by 5327 px; 0.98 MB)



Free seminars:

1. “English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

2. “Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc.

StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American.

StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.

Tuesday, March 26, 2019

Clear, concise, and effective English for law students, bar examinees, and legal writers in organizations, private companies, and government offices (01): Introduction

Law professors, bar examiners, and judges have been complaining of the poor grammar and woeful quality of writing among students and practitioners. If you are involved in legal writing in whatever capacity, I hope that this series will help improve the way you write. (Please read “A Message to Law Students: Effective Writing Takes a Lifelong Commitment” and “Seeking the Highest Level of Writing Competence” by Bryan A. Garner, editor-in-chief of Black’s Law Dictionary)

1. What is good legal writing? Is legal writing different from or superior to ordinary writing in English?

UCLA School of Law Prof. David Mellinkoff launched the Plain English revolution in legal writing when he published in 1963 his monumental work “The Language of the Law.” In his 1982 book “Legal Writing: Sense and Nonsense,” Mellinkoff said:

If it’s bad writing by the standards of ordinary English, it is bad legal writing. If it’s good legal writing by the standards of ordinary English, it is more likely to be good legal writing.

Richard C. Wydick is Professor Emeritus of Law at the University of California at Davis School of Law. He has also lectured at the International Legislative Drafting Institute presented in New Orleans by the Public Law Center, a joint venture of Tulane and Loyola law schools. In his book “Plain English for Lawyers,” Wydick says:
Good legal writing should not differ, without good reason, from ordinary well-written English.... In short, good legal writing is plain English.

(The National University of Singapore uses Wydick’s book as the main reference for its Legal Writing Programme.)

2. “Why lawyers can't write” by Bryan A. Garner, ABA Journal, March 2013 issue‎

Garner is editor-in-chief of Black’s Law Dictionary since 1977, and Distinguished Research Professor of Law at Southern Methodist University Law School. He is the president of LawProse Inc. through which he has trained thousands of American lawyers on modern legal drafting. He is the author of “Dictionary of Legal Usage”; “Modern American Usage”; and “Making Your Case: The Art of Persuading Judges” (with Justice Antonin Scalia).

In his ABA Journal article, Garner says that “lawyers on the whole don’t write well and have no clue that they don’t write well.” He explains:
The legal profession suffers from a pervasive Dunning-Kruger problem. This is puzzling but true. While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. But there’s plenty of blame that falls elsewhere. Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.) For law firm associates, their senior lawyers too often decry any emphasis on writing style (“I’m just concerned with the substance of it! I leave style to others!”). And in general society, serious readers are becoming an endangered species.

3. “Legal Writing Is Not What It Should Be” by Wayne Schiess, Senior lecturer, The University of Texas School of Law

Schiess says: “Most legal writing is average or below average – mediocre at best. Every lawyer has no doubt read lots of legal writing: judicial opinions, correspondence, statutes, agreements, memos, court documents, and more. I believe most lawyers would agree with me that most legal writing is mediocre at best.”

Schiess offers nine reasons why legal writing is not what it should be. Of these nine reasons, the following, I think, are the most compelling:
3. Law schools do not adequately train students in legal drafting.

4. Lawyers imbibe lots of poor writing from judicial opinions and other required reading.

8. Some lawyers have a misguided sense of professionalism, leading to a formal writing style that ignores audience needs.

9. Many lawyers are complacent, believing their writing is above average or better.

4. Resources by Judge Gerald Lebovits, adjunct professor at Columbia, Fordham, New York University law schools:

Free seminars:

English Proficiency Course” (4 hours; for college students, K-to-12 teachers, other groups)

“Clear, concise English for effective legal writing” (3-5 hours; for Student Councils, academic organizations, fraternities, sororities, NGOs, LGUs, any interested group; test yourself with the interactive exercises)

Seminars are for Metro Manila only. For more information or to schedule a seminar, please contact Atty. Gerry T. Galacio at 0927-798-3138.

Be a better writer or editor through StyleWriter 4: this software checks 10,000 words in 12 seconds for hundreds of style and English usage issues like wordy and complex sentences, passive voice, nominalization, jargon, clichés, readability, spelling, etc.

StyleWriter 4 graphs your style and sentence variety, and identifies your writing habits to give an instant view of your writing. You can learn to adjust your writing style to suit your audience and task. You can learn, for example, the writing style of Newsweek, Time, The Economist, and Scientific American.

StyleWriter 4 is widely used in the US federal government (for example, the Environmental Protection Agency). It can be used by educators, students, and professionals in various fields - business, law, social or physical science, medicine, nursing, engineering, public relations, human resources, journalism, accounting, etc. Download your free 14-day trial copy now.
Notes:

1. I graduated with an AB English degree from the Philippine Christian University in 1979 and took my Education units from Philippine Normal College. I have been teaching English grammar and Composition, Literature, Argumentation and Debate since 1981. I created my website “Better English for everyone” in 2007, and it has been visited by over a million visitors from 150 countries since then. (It’s currently offline.) I am also a photographer; you might like my pictures of the 2006 bar operations in DLSU.

2. Since April 2011, I have been advocating the use of Plain Language/Plain English in public communications of government offices and private companies. I am a member of the Linkedin group “Plain Language Advocates.”  

3. The eagle-eyed among you may have noticed that in this article I always used a comma before the conjunction “and.” As Filipinos, we learned in school not to use a comma before the “and” in a list. I followed this rule until 2011 and then I started using what is called the “serial comma” or the “Oxford comma.” Among my reasons for using the Oxford comma are (a) Peterson vs. Midwest Security Insurance Company, Supreme Court of Wisconsin, 2001; and (b) Bryan A. Garner’s “Guidelines for Drafting and Editing Court Rules.” As Judge Mark Painter says: “Using the serial comma never creates ambiguity; leaving it out sometimes does.”

4. This blog focuses on family law and legal procedures. For my articles on freedom of religion, separation of church and State, etc. please surf to:
Are church clerks, ACE teachers, drivers, janitors, etc. considered “employees” under the Labor Code of the Philippines? (Landmark 2012 US Supreme Court ruling in “Hosanna-Tabor Lutheran vs. Equal Employment Opportunity Commission” and its implications for Philippine churches)

Estrada vs. Escritor case: Did the Supreme Court legitimize live-in relationships in the name of freedom of religion?

Secular courts do not have jurisdiction over expulsion or excommunication of church members (Philippine Supreme Court decision in Taruc et al vs. Bishop de la Cruz et al, 2005)

Instances when secular courts can intervene in church disputes (Supreme Court ruling in Fonacier vs. Court of Appeals and Isabelo De los Reyes, Jr., 1955)

Due process must be observed in terminating church membership Doctrine of Church Autonomy: secular courts and church disputes

Caution for pastors in solemnizing an “ecclesiastical marriage” or “marriage in the eyes of God and the church

Life after life: medical criteria of “death,” its legal definition in the Philippines, related issues and Biblical perspectives

Registering a local Baptist church with the SEC as a religious society or aggregate; what is a corporation sole?

Separation of church and State: Should Baptists be involved in politics, civil disobedience, the debate on reproductive health bill, etc?

Should Bible schools apply for recognition from the CHED? (2005 Texas Supreme Court ruling in “Tyndale Theological Seminary vs. Texas Higher Education Coordinating Board” and its implications for Bible schools in the Philippines)

Wednesday, January 09, 2019

1.53 million unique visits and 4.87 million page views: Thanks for browsing this blog!

I started this blog on October 30, 2005 as part of my Family Matters website. My website tracker Statcounter.com reports that, as of 9:30 AM today, this blog has now been visited more than 1,530,220 times. Blogger.com, meanwhile, reports that this blog has now reached more than 4,868,764 page views.

Statcounter, which I started using sometime in 2014 in addition to Blogger, sometimes uses the term “sessions” instead of “unique visits.” Another tracker that I used before, Sitemeter.com, reported that the average time spent per visit was over three minutes.

Note: Click the graphics below to view much-bigger copies
Average daily page views from 2014 to 2018
Average yearly page views from 2014 to 2018
Average daily page views for 2017
Average daily page views last 12 months
For 2016, Statcounter reported a daily average of 916 page views, 510 first-time visits, and 101 return visits. As of today, however, Statcounter reports the following daily average: 109.9 page views, 70.3 first time visits, and 8.1 return visits.

The steep drop in the averages from the 2016 stats can primarily be attributed to Google's implementation of the “Fred” algorithm for its search results. If you want to help more people find this blog and its articles when they search Google, please place links to this blog from your websites, blogs, or social media accounts.

Also contributing to the steep drop in the daily averages is the unscrupulous practice known as “scraping” that some bloggers and website administrators use. These bloggers and admins copy, without my permission, the full text of my articles and post them into their blogs and websites, oftentimes without crediting me as the author or providing clickable backlinks. The result is that Google no longer indexes my articles in its search page results; it points searchers to the blogs or websites that copied my articles.

Top 10 countries with most page views (Blogger)
Google Analytics reported years ago that this blog
had been visited from more than 81 countries.
The service I provide in this blog and in my Family Matters website is free legal information and Biblical counseling. (“Free” however does not mean that bloggers or website admins are free to copy my articles without permission and to publish them in their blogs or website without giving me credit as the author and providing clickable backlinks. If you’re a blogger or website admin, you must get my permission first before publishing my articles in your blogs or websites.) As I told one person who e-mailed me, what is legal is not always Biblical, and what is Biblical is not always legal. In my website and blogs, however, what is Biblical will always take precedence.

Blogger and Statcounter work in different ways and thus report different statistics. With regards the average time of 3 minutes per visit, Jakob Nielsen says that 2 minutes is an eternity on the Internet. (Nielsen is the acknowledged guru of writing for the Internet.) Nielsen also says that the number of return visits is a better indicator of website or blog’s effectiveness, rather than the number of first-time (or absolute unique) visits.

Do not depend on “legal information” found in chat rooms or online forums

Despite this milestone for this blog, three things sadden me:


One, I have stumbled upon chat rooms or online forums for OFWs, single parents, etc. and I am amazed at the tremendous amount of misinformation about legal matters I found in these forums. The problem is that people in these chat rooms, rather than inquiring from lawyers, rely on each other and on people who pretend to know the law. It does not matter whether a person has gone to law school or does good research on legal topics. Answering people’s questions about legal matters is considered as “practice of law” (as the Supreme Court ruled in the case involving the late Sen. Rene Cayetano and former COMELEC chairman Christian Monsod). The practice of law is reserved only for those who have passed the bar exams and are in good standing with the Integrated Bar of the Philippines.

text copied from this blog and then posted in a chat room without attributionSome people in chat rooms and online forums also copy and paste from my blog posts without giving any credit. For example, portions of my post “Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles?” were posted verbatim without any attribution. (Click the image to the left so you can compare my blog post and what was posted in the forum.)

If you do have legal questions, you should inquire from lawyers directly or from government offices. I have listed in a tab below this blogs title graphic the contact information of government offices where you can get free legal assistance. For example, you can ask for free legal help from the Department of Justice Action Center (DOJAC). It acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try asking for free legal help or information from the following:
  1. Integrated Bar of the Philippines (IBP) chapter offices in your town or city, usually located in the Hall of Justice
  2. OLA (Office of Legal Aid) of the UP College of Law; Room 107, Malcolm Hall, University of the Philippines Diliman, Quezon City, 1101; UP College of Law Trunkline Phone No. (02) 920-5514, Office of Legal Aid - loc. 106; Office Hours: 8:00 am - 12:00 pm; 1:00 pm - 5:00 pm
  3. Legal Aid Bureau of the San Beda College of Law in Mendiola, Manila; tel. no. (02) 489-1670
  4. CJ Roberto Concepcion Legal Aid Clinic of the UST Institute of Civil Law, Espana, Manila; +63(02) 731-4027 or +63(02) 406-1611 (Local 8225)
  5. Sebastinian Office of Legal Aid, San Sebastian College Institute of Law; Trunk Line: (02)734-8931 to 39, Locals: 313 and 173
  6. Commission on Human Rights chapter offices
Two, the most visited page of this blog is that on adultery, concubinage, and psychological violence, with more than 347,000 visits. The other pages with a high number of visits are those dealing with support for an abandoned woman and her children (more than 164,000 visits), annulment or declaration of nullity of marriage, entertainer Amy Perez’s failed petition to have her marriage to Brix Ferraris declared void, and custody battles over children.

Three, there are more people who visit this blog rather than my Salt and Light blog on how to build strong relationships, marriages, and families. Compared to this blog, my SL blog is limping along with only 56,000-plus visitors since December 2005. It seems that there are more people who want to know about how to end their marriage than people concerned about building stronger marriages.

Salt and Light blog title graphicsI remember Valentine’s Day twelve years ago. I received an e-mail from a woman, competent and highly successful in her profession. The problem was, her professional success had led to the breakdown of her marriage because her husband had become totally insecure. The question she desperately asked me was, “Is there hope for my marriage?” I spent the whole afternoon of that Valentine’s Day answering the e-mail, assuring her that yes, there was still hope for her marriage.

My hope is that more people will browse my Salt and Light blog and learn how to reclaim their marriage and rebuild their family. Some of my favorite articles are Lessons in love and life from Miriam Quiambao, Emotional word pictures as a communication tool for increasing intimacy between husbands and wives, and Men are terrible mind readers ...

I also hope that that those of you going through various marital difficulties will try to get hold and watch Kirk Cameron’s movie on relationships; you can watch the YouTube trailer above and read more in the FIREPROOF blog.

About FIREPROOF, the movie
At work, inside burning buildings, Capt. Caleb Holt lives by the old firefighter’s adage: Never leave your partner behind. At home, in the cooling embers of his marriage, he lives by his own rules. Growing up, Catherine Holt always dreamed of marrying a loving, brave firefighter...just like her daddy. Now, after seven years of marriage, Catherine wonders when she stopped being "good enough" for her husband. Regular arguments over jobs, finances, housework, and outside interests have readied them both to move on to something with more sparks. As the couple prepares to enter divorce proceedings, Caleb's father challenges his son to commit to a 40-day experiment: "The Love Dare." Wondering if it's even worth the effort, Caleb agrees-for his father's sake more than for his marriage. When Caleb discovers the book's daily challenges are tied into his parents' newfound faith, his already limited interest is further dampened. While trying to stay true to his promise, Caleb becomes frustrated time and again. He finally asks his father, "How am I supposed to show love to somebody who constantly rejects me?" When his father explains that this is the love Christ shows to us, Caleb makes a life-changing commitment to love God. And so with God's help he begins to understand what it means to truly love his wife. But is it too late to fireproof his marriage? His job is to rescue others. Now Caleb Holt is ready to face his toughest job ever...rescuing his wife’s heart.

Saturday, May 05, 2018

Divorce obtained abroad by Filipino citizen against alien spouse now recognized in the Philippines

“SC recognizes divorce in marriage with foreigners” (Rappler)



The Supreme Court (SC) en banc issued a landmark ruling on Tuesday, April 24, recognizing divorce in marriages with foreigners.

Voting 10-3-1, the SC en banc ruled “that a foreign divorce secured by a Filipino against a foreign spouse is also considered valid in the Philippines, even if it is the Filipino spouse who files for divorce abroad.”

“Republic of the Philippines v. Marelyn Tanedo Manalo” G.R. No. 221029, April 24, 2018

Based on a clear and plain reading of paragraph 2 of Article 26 (Family Code), the provision only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.”
Summary:

1. Divorce obtained abroad by a Filipino citizen against his or her Filipino spouse is not recognized here in the Philippines because of Articles 15 and 17 of the New Civil Code of the Philippines.

2. Paragraph 2 of Article 26 of the Family Code is the primary law on the issue of divorce between a Filipino citizen and an alien spouse: “Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

3. Contrary to previous interpretations by lawyers and judges of paragraph 2 of Article 26 of the Family Code, the Supreme Court ruled in “Republic of the Philippines v. Marilyn Tanedo Manalo, April 24, 2018” that a divorce that is initiated and obtained abroad by a Filipino citizen against his or her alien spouse is valid and recognized in the Philippines.

After obtaining the divorce decree, the Filipino spouse must file with the Family Court a petition for recognition of the divorce decree, either for record purposes or in case of a possible remarriage. Mere filing of the divorce decree with the Philippine embassy or consulate is not sufficient. If the divorced Filipino gets married again in the Philippines, he or she can be charged with bigamy.

The petitioner must prove two things: (1) the existence of the divorce decree as a fact and (2) the foreign law that allows the alien spouse to remarry.

4. Related discussion: Divorce obtained abroad by a former Filipino citizen against his or her Filipino spouse is recognized in the Philippines. (Republic of the Philippines v. Cipriano Orbecido III)

5. Related discussion: “Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?

6. A petition for judicial recognition of a foreign divorce decree is a difficult and expensive legal process. Most Filipino lawyers, therefore, advise people to file instead a petition for declaration of nullity under Article 36 of the Family Code.

7. House Bill 7185, authored by Taguig City-Pateros Rep. Pia Cayetano, seeks to eliminate the need for judicial recognition of a foreign divorce decree.

Marriage between spouses who are both Filipino citizens

A marriage between two Filipinos cannot be dissolved by a divorce obtained abroad because of Articles 15 and 17 of the New Civil Code of the Philippines. (Garcia-Recio vs. Recio, G.R. No. 138322, October 2, 2001)

Mixed marriage (between a Filipino citizen and an alien spouse)

Paragraph 2 of Article 26 of the Family Code is the primary law on the issue of divorce between a Filipino citizen and an alien spouse:

“Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

Contrary to previous interpretations by lawyers and judges of paragraph 2 of Article 26, the Supreme Court ruled in the case of Republic of the Philippines v. Marilyn Tanedo Manalo, (April 24, 2018) that a divorce initiated and obtained abroad by a Filipino citizen against his or her alien spouse is now recognized in the Philippines . The Court said:

Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.

Pertinent sections of the Supreme Court ruling in “Republic of the Philippines v. Marilyn Tanedo Manalo”

Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case. Under the principles of comity, our jurisdiction recognizes recognizes a valid divorce obtained by a spouse of foreign nationality, but the legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be determined by our courts.

In 2005, this Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of them marriage, the parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeedings, and obtained a favorable decree. (Republic of the Phils. v. Orbecido III)

... a Flipino citizen has the capacity to remarry under Philippine law after initiating a divorce proceeding abroad and obtaining a favorable judgment against his or her alien spouse who is capacitated to remarry.

... a validly obtained foreign divorce decree initiated by the Filipino spouse can be recognized and given legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay. et al. and Medina v. Koike.

There is no compelling reason to deviate from the above-mentioned rulings. When this Court recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relations, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former spouses change as both of them are freed from the marital bond.

Paragraph 2 of Article 26 speaks of “a divorce xxxx validly obtained abroad by the alien spouse capacitating him or her to remarry.” Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.

Petition for judicial recognition of a divorce decree

After obtaining the divorce decree, the Filipino spouse must file with the Family Court a petition for recognition of the divorce decree, either for record purposes or in case of a possible remarriage. Mere filing of the divorce decree with the Philippine embassy or consulate is not sufficient; if the divorced Filipino gets married again in the Philippines, he or she can be charged with bigamy.

The recognition of a foreign divorce decree is a judicial process and not an administrative process. The petition is filed with the Family Court and not with the Local Civil Registrar or with the National Statistics Office. If officials of the LCR or the NSO by themselves annotate the divorce decree on the marriage certificate without any court order, they can be charged administratively.

In “Republic of the Philippines v. Marilyn Tanedo Manalo,” the petitioner (Manalo) submitted to the Family Court the following:

  1. Decision of the Japanese Court allowing the divorce

  2.  “Authentication/Certificate” issued by the Philippine Consulate General in Osaka, Japan of the “Decree of Divorce”

  3. “Acceptance of Certificate of Divorce” by the Petitioner and the Japanese national
But the Supreme Court said that these requirements were not enough for the Family Court to grant the petition; it said that the petitioner (Manalo) must prove that Japanese law allows her alien spouse to remarry.

The Supreme Court in the Manalo ruling stated the requirements that the Family Court must follow:

Jurisprudence has set guidelines before Philippine courts recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country. Presentation solely of the divorce decree will not suffice. The fact of divorce must still first be proven. Before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.

If the opposing party fails to properly object, as in this case, the divorce decree is rendered admissible as a written act of the foreign court. As it appears, the existence of the divorce decree was not denied by the OSG; neither was the jurisdiction of the divorce court impeached nor the validity of its proceedings challenged on the ground of collusion, fraud, or clear mistake of fact or law, albeit an opportunity to do so.

Nonetheless, the Japanese law on divorce must still be proved.

Since the divorce was raised by Manalo, the burden of proving the pertinent Japanese law validating it, as well as her former husband’s capacity to remarry, falls squarely upon her. Japanese laws on persons and family relations are not among those matters that Filipino judges are supposed to know by reason of their judicial function.
 
Summing up, the Filipino citizen must prove (1) the existence of the divorce decree as a fact and (2) the Japanese law that allows the alien spouse to remarry.

Difference between petition for declaration of nullity and petition for judicial recognition of a foreign divorce decree

“Petition for authority to remarry” versus petition for declaratory relief

In the case of Republic of the Philippines v. Cipriano Orbecido III which I discussed in “The right of a divorced Filipino to remarry under Article 26 of the Family Code,” Orbecido (a Filipino) was divorced by his wife (a former Filipino who became a naturalized US citizen). Orbecido, invoking Paragraph 2 of Article 26 of the Family Code, later on filed a “petition for authority to remarry” with the Regional Trial Court in Zamboanga del Sur.

The Supreme Court clarified that instead of a “petition for authority to remarry” Orbecido should have filed a petition for declaratory relief under Rule 63 of the 1997 Rules of Civil Procedure. But the Court also expressly mentions “recognition of a foreign divorce decree” which is why most lawyers file this kind of petition instead of a petition for declaratory relief. Perhaps it is time for the Supreme Court to issue a clarificatory rule of procedure dealing with situations falling under the second paragraph of Article 26.
As I said above, before remarrying,the Filipino divorced by the foreign spouse must first file a petition in a Philippine court for the recognition of the foreign divorce decree.Only when the court has recognized the foreign divorce decree can the Filipino remarry.

The proper legal remedy is filing a petition for the recognition of the foreign divorce decree and not for declaration of nullity of the marriage. Legally speaking, “annulment ” refers to voidable marriages under Articles 45, 46 and 47 of the Family Code while “declaration of nullity” refers to void marriages under Articles 35, 36, 37, 38 and 41 of the Family Code. But Filipinos commonly use “annulment” as a generic term.

A petition for recognition of a divorce decree is not specifically provided for under the 1997 Rules of Civil Procedure or by a specific Supreme Court rule. But paragraph 2 of Article 26 (as clarified in the Manalo ruling) already provides that the Filipino spouse has the right to remarry. Thus, filing a petition for declaration of nullity is pointless. Moreover, the divorce decree cannot be used as the basis for declaration of nullity since this petition is governed by the articles of the Family Code that I cited above.

Petition for judicial recognition of a foreign divorce decree, however, is an expensive and difficult legal process

Most Filipino lawyers, however, advise their clients to file a petition for declaration of nullity under Article 36 of the Family Code rather than a petition for recognition of a foreign divorce decree. Why? In a petition for recognition, the court will require the presentation of expert witnesses who can
(1) translate the divorce decree if it is written in a language other than English, or

(2) testify on the law of the country where the divorce was granted to prove that the alien spouse is allowed to remarry. 
The translator must either come from the embassy concerned or from the Department of Foreign Affairs; getting their services can be costly or difficult. As to the expert witness on the law on marriage and divorce of the country that granted the decree, this is an even more difficult thing to do.

House Bill 7185 seeks to eliminate the need for judicial recognition of a foreign divorce decree

House Bill 7815, if it becomes law, will eliminate the need for judicial recognition of a foreign divorce decree. After the divorce decree is duly authenticated by the Philippine Embassy or Consular Office in the country where the decree was obtained, its registration with the Philippine civil registry (NSO) will be sufficient proof of the capacity to remarry.

Principal author of House Bill 7815 is Taguig City-Pateros 2nd District Rep. Pia Cayetano. The bill was approved 203-3 with no abstentions by the House of Representatives. The Senate must also have its equivalent bill, and the Bicameral Conference Committee will then iron out the final bill. Finally, it must be signed into law by President Duterte.


The Supreme Court ruling in Garcia-Recio vs. Recio (G.R. No. 138322, October 2, 2001) illustrates paragraph 2, Article 26 of the Family Code:

“A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

“Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is “validly obtained abroad by the alien spouse capacitating him or her to remarry.” A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.

“A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that “aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.” Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient.

“It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

“Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.

“We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.

“We agree with petitioner’s contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.

“Neither can we grant petitioner’s prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner’s legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties’ marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.”

Wednesday, March 30, 2016

Proposed legislation (02): Adverse claims on real property and certain practices of the Register of Deeds and the Land Registration Authority

Index of topics: 1. Background facts; 2. The relevant law on adverse claims - PD 1529 Property Registration Decree; 3. The Supreme Court ruling on adverse claims in Sajonas vs. Court of Appeals; 4. Proposed legislation: Amendments to Section 70 of PD 1529 so as to negate the Sajonas ruling

Background facts:

Elsie and her siblings inherited in 2004 a parcel of land in the province from their parents. Sometime in September 2011, Rose (the person living adjacent to that parcel of land) occupied a certain portion and claimed it as her own. Moreover, Rose filed with the Register of Deeds (RD) an application for annotation of an adverse claim (“application for adverse claim”).

The Register of Deeds did not inform Elsie and her siblings of the pending application for adverse claim.

Sometime in early 2012, when a buyer expressed interest in the land, Elsie and her siblings tried to get a certified copy of their Transfer Certificate of Title (TCT). The RD refused to issue the certified copy saying that there was a pending application for adverse claim. (Elsie and her siblings also found out later on that several persons interested in the land were told by the RD staff that there was a pending application for adverse claim.)

Sometime in April 2013 (two years after the application was filed), the RD approved and annotated the adverse claim on the TCT of the land inherited by Elsie and her siblings.

Again, the RD did not inform Elsie and her siblings that the adverse claim was approved and annotated on the TCT.

The RD also dated the annotation as of September 2011 (the date of the filing of the application), not as of April 2013 (date when the application was approved and actually annotated).

Elsie and her siblings filed a “consulta” with the Land Registration Authority (LRA) with the following questions:

1. Why didn’t the RD notify them that an application for annotation of adverse claim was filed against their land?

2. Why did it take the RD two years to decide whether to deny or grant the application for annotation of the adverse claim?

3. Why did the RD date the annotation as of September 2011 (the date of the filing of the application) and not as of April 2013 (date when the application was approved and actually annotated)?

The relevant law on adverse claims: PD 1529 Property Registration Decree


Section 70 of PD 1529 states:

Adverse claim. Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this Decree for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of the certificate of title of the registered owner, the name of the registered owner, and a description of the land in which the right or interest is claimed.

The statement shall be signed and sworn to, and shall state the adverse claimant's residence, and a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim on the certificate of title. The adverse claim shall be effective for a period of thirty days from the date of registration. After the lapse of said period, the annotation of adverse claim may be canceled upon filing of a verified petition therefor by the party in interest: Provided, however, that after cancellation, no second adverse claim based on the same ground shall be registered by the same claimant.

Before the lapse of thirty days aforesaid, any party in interest may file a petition in the Court of First Instance where the land is situated for the cancellation of the adverse claim, and the court shall grant a speedy hearing upon the question of the validity of such adverse claim, and shall render judgment as may be just and equitable. If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered canceled. If, in any case, the court, after notice and hearing, shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, the claimant may withdraw his adverse claim by filing with the Register of Deeds a sworn petition to that effect.

Lawyers who graduated from law school or were admitted into the bar before 1996 understood this section to mean:

1. The adverse claim is effective only for 30 days from the date of annotation.

2. Within 30 days after the adverse claim is annotated, the claimant must file with the Regional Trial Court (RTC) the proper petition to enforce the claim. (The reason for filing the adverse claim with the RD is to prevent the landowner from disposing of the property while the lawyer is preparing the petition with the RTC.)

3. Although the adverse claim automatically loses its effectivity after the 30-day period, the affected landowner needs to file a petition with the RTC to have the annotation cancelled. (The landowner can include in the petition a claim for damages against the party who filed the adverse claim.)

The Supreme Court ruling on adverse claims in Sajonas vs. Court of Appeals


The Supreme Court in Sajonas vs. CA (G. R. No. 102377, July 5, 1996) ruled that the adverse claim is effective even beyond the 30-day period, for as long as there’s no decision from the RTC declaring that the adverse claim has been cancelled. The Supreme Court said: “The cancellation of the adverse claim is still necessary to render it ineffective, otherwise, the inscription will remain annotated and shall continue as a lien upon the property.” It also clarified the reason for the required court hearing:

[t]he annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property where the registration of such interest or right is not otherwise provided for by the Land Registration Act or Act 496 (now P.D. 1529 or the Property Registration Decree), and serves as a warning to third parties dealing with said property that someone is claiming an interest or the same or a better right than the registered owner thereof.

The reason why the law provides for a hearing where the validity of the adverse claim is to be threshed out is to afford the adverse claimant an opportunity to be heard, providing a venue where the propriety of his claimed interest can be established or revoked, all for the purpose of determining at last the existence of any encumbrance on the title arising from such adverse claim.

The Supreme Court upheld its Sajonas ruling in these subsequent cases: Diaz-Duarte vs. Ong and CA, G.R. No. 130352 November 3, 1998; Equatorial Realty Development vs. Frogozo and CA, G.R. No. 128563, March 25, 2004.

Proposed legislation: Amendments to Section 70 of PD 1529 so as to negate the Sajonas ruling


According to the LRA staff whom I have talked to, numerous landowners have complained to them of the negative effects of the Sajonas ruling, specifically about frivolous claims that are meant to harass landowners. One staff member told me that the LRA has approached some members of Congress asking them to amend the law on adverse claims.

1. Proposed legislation: Increase the penalty imposed on frivolous adverse claims from “not less than one thousand pesos nor more than five thousand pesos” to, for example, from fifty thousand pesos to one hundred thousand pesos.

Section 70, PD 1529 states:

If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered canceled. If, in any case, the court, after notice and hearing, shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion.

Landowners whose property have been subjected to adverse claims are reluctant to go to court to have the annotation cancelled because of the high costs of litigation. The penalty of “not less than one thousand pesos nor more than five thousand pesos” does not even cover the cost of a lawyer’s single appearance fee. The increase in the penalty can (a) discourage the frivolous filing of adverse claims and (b) answer for the landowner’s legal expenses.

2. With the Sajonas ruling that an adverse claim is valid beyond the 30-day period, the claimant doesn’t have to do anything else once the adverse claim has been annotated. The landowner is now forced to incur legal expenses by retaining the services of a lawyer to have the annotation canceled.

Moreover, Section 70, PD 1529 seemingly violates the doctrine that a Torrens title cannot be subjected to a collateral attack. For example: The landowner files a petition to have the annotation of adverse claim cancelled. What if the adverse claimant, in the Answer, raises grounds that question the authenticity of the title? Normally, such an Answer is not allowed because it’s a collateral attack, but Section 70, PD 1529 (as clarified in the Sajonas ruling) states:

The reason why the law provides for a hearing where the validity of the adverse claim is to be threshed out is to afford the adverse claimant an opportunity to be heard, providing a venue where the propriety of his claimed interest can be established or revoked, all for the purpose of determining at last the existence of any encumbrance on the title arising from such adverse claim.

Proposed legislation: Amend Section 70, PD 1529 so that the adverse claimant must proactively pursue the claim in court. (“He who alleges must prove.”) The claimant must file, within 30 days from the annotation, the proper petition in court to prove the adverse claim. If the claimant fails to do so, then the adverse claim should no longer be effective.

This proposed amendment will prevent the filing of frivolous adverse claims.

3. Proposed legislation: To prevent the filing of frivolous adverse claims, an adverse claim must be effective only for 30 days and will be automatically canceled by the mere lapse of the period, without the need for a court order or an annotation by the RD.

In the alternative, the RD can annotate the cancellation upon the application by the landowner. To prevent the RD from sitting on the application for cancellation, the action on the application must be made within the 5-day period for simple transactions provided by RA 9485 Anti-Red Tape Act of 2007.

Another alternative: The effectivity of an adverse claim can be increased from 30 days to 45 days, so as to give the adverse claimant enough time to enforce the claim in the Regional Trial Court.

Benefits of this proposed legislation:

(a) Frivolous adverse claims will be minimized.

(b) Landowners will not incur legal expenses in going to court to have the adverse claim canceled.

4. As stated in the “Background facts” above, the RD did not inform Elsie and her siblings of the pending application for adverse claim.

The third paragraph of Section 70 of PD 1529 provides that the landowner (who is a “party in interest”) has the remedy of going to court for the cancellation of the adverse claim within 30 days from the registration of the claim. This section thus implies that the RD must immediately notify the landowner so that the legal remedy can be availed of.

Proposed legislation:

(a) Make explicit the duty of the RD to immediately notify the landowner of the registration of the adverse claim, and

(b) Provide penalties if the RD fails to notify the landowner.

The legislation could require the RD to notify the landowner twice: first notice that an application for adverse claim has been filed, and second notice that the application has either been denied or approved.

5. As stated in the “Background facts” above, it took the RD two years to act on the application for adverse claim.

Proposed legislation:

(a) Set a time limit of 30 days from the time the application for an adverse claim was filed within which the RD must either deny or approve the application, with the corresponding penalty if the RD fails to comply with this period;

(b) Provide that if the RD denies the application for adverse claim, the denial cannot be subject of a motion for reconsideration or an appeal to the Land Registration Authority. The remedy of the applicant should be to file a court action to pursue the claim.

As stated in the “Background facts,” the RD refused to issue a certified copy of the TCT to Elsie and her siblings while the application for adverse claim was pending. Under the LRA guidelines, if the RD denies the application for adverse claim, the claimant can file a “consulta” with the LRA questioning the denial. This guideline should be repealed because it means that, while the “consulta” is pending, the RD can continue to refuse issuing a certified copy of the affected TCT (or continue to tell interested buyers of the pending appeal), to the detriment of the landowner who may wish to sell the property.

(The LRA usually takes years to resolve a “consulta” because it goes through numerous stages or departments — investigation by an RD designated as the hearing officer or by the Investigation and Inspection Division; preliminary review of the hearing officer’s draft resolution by the LRA Administrator; consulta conference; drafting and signing of the final resolution by the LRA Deputy Administrator; final review by the LRA Administrator; and promulgation by the Clerks of Court Division.)

6. As stated in the “Background facts” above, Elsie and her siblings questioned why the RD dated the annotation as of September 2011 (the date of the filing of the application) and not as of April 2013 (date when the application was approved and actually annotated)?

In reply to this question, the RD invoked the Implementing Guidelines of the Philippine Land Registration and Information System (PHILARIS), specifically Section 5, sub-paragraph k), which states:

k) Electronic Primary Entry Book for Registered Land (EPEB-RL) – refers to the electronic book wherein registered lands,including all transactions and/or instruments registered related thereto, are recorded and assigned sequential entry numbers in the order of presentation indicating therein the date, hour, and minute when the same was received.

But Section 5, sub-paragraph k) of the PHILARIS guidelines is contrary to the provisions of the third paragraph of Section 70 of PD 1529. As stated above,  this section of PD 1529 provides that the landowner (“party in interest”) has the remedy of going to court for the cancellation of the adverse claim within 30 days from the registration of the claim. But how can Elsie and her siblings have availed of this remedy when the approval of the application for adverse claim made in 2013 was retroactively dated to 2011?

In effect, this provision of the PHILARIS guidelines on retroactive dating negates the legal remedy provided by PD 1529.

Proposed legislation: Require the RD to annotate any adverse claim using the date of actual registration rather than the date of the filing of the claim. (The implementing guidelines of PHILARIS must therefore also be amended by the LRA.)