Saturday, April 22, 2006

Land titles: issues and questions (3)

Question: My daughter, having saved some money from her call center job, recently bought a small piece of property. After my daughter fully paid the purchase price to the seller and the Deed of Absolute Sale had been signed, the seller for one reason or another now keeps on postponing giving to her the title to the property. What should my daughter do?

Answer: Your daughter should ask a lawyer/notary public to prepare and notarize an affidavit of adverse claim. She should then have the affidavit of adverse claim recorded with the Register of Deeds which has jurisdiction over the property.

A claim or interest may be registered as an adverse claim under the following circumstances:

(1) the claimant’s right or interest in registered land is adverse to the registered owner;

(2) such right or interest arose subsequent to the date of original registration; and

(3) no other provision is made in the Decree for the registration of such right or claim.

The formal requisites of an adverse claim for the purpose of registration are as follows:

(1) The adverse claimant must state the following in writing:

a. his/her alleged right or interest
b. how and under whom such alleged right or interest was acquired;
c. the description of the land in which the right or interest is claimed, and
d. the certificate of title number

(2) Such statement must be signed and sworn to before a notary public or other officer authorized to administer oath.

(3) The claimant shall state his/her residence or place to which all notices may be served upon him.

The purpose of annotating an adverse claim on the certificate of title is to notify third parties that there is a controversy over the ownership of the land bought by your daughter, and to preserve and protect her right during the pendency of the controversy. It is a notice to third persons that any transaction regarding the disputed land is subject to the outcome of the dispute between your daughter and the seller.

Under Section 70 of PD 1529, the adverse claim shall be effective for a period of thirty (30) days from the date of the registration and it may be cancelled in the following ways, among others:

(1) After the lapse of thirty days, upon the filing by the party in interest of a verified petition for such cancellation. No second adverse claim based on the same ground may thereafter be registered by the same claimant.

(2) Before the lapse of the thirty day period, when a party in interest flies a petition before the Regional Trial Court of the place where the property is located for the cancellation of the adverse claim. If after due notice and hearing, the court finds the claim to be invalid, it will order the cancellation of the claim and may at the same time fine the claimant.

If a property is being contested by several parties in court, the subsequent annotation of a notice of lis pendens on the certificate of title on file with the Register of Deeds also serves the purpose of an adverse claim.

Note: Prospectice buyers of any property should check the TCT (Transfer Certificate of Title) on file with the Register of Deeds which has jurisdiction over the property. Check to see if there is any lien or encumbrance recorded at the back of the title (like an adverse claim, lis pendens, mortgage, etc). Buyers can also ask the Land Registration Authority to verify the whether the title is authentic or not. It is estimated that there are some 100,000 fake titles in circulation in the Philippines.

Also, upon signing the Deed of Absolute Sale and paying in full for the property, the title should at the same time be given to the buyer.

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