• Disposing of share in inherited property

    2
    Persida Acosta

    Persida Acosta

    Dear PAO,
    My problem involves a parcel of land that my deceased parents left us. Unfortunately, my siblings and I cannot come to an agreement on how it will be divided. I intend to dispose of my share in the proper-ty. Can I sell my share even if the title is still in the name of our deceased parents? If yes, do I need to get the consent of my siblings?
    Cross

    Dear Cross,
    The moment a person dies, all his property, rights and obligations, which are not extinguished by death, are transferred to his heirs (Articles 776 and 777, Civil Code). At that moment, the right of an heir to receive his inheritance accrues. If there be more than one heir, a co-ownership is formed among the heirs that will subsist until the estate of the decedent is settled.

    Concerning the right of a co-owner, the law states that “each co-owner has full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the por-tion that may be allotted to him in the division upon the termination of the co-ownership” (Article 493, Ibid.).

    On the basis of the foregoing, your plan to sell your share in the property left by your parents is al-lowed under our laws. As co-owner who has full ownership over your share, you are free to exercise ownership right over your share, including the right to sell or dispose it. Further, you are not required to secure the consent of your siblings in order to validly sell your share as expressly provided by law considering that there appears to be no personal rights involved. Such rule is also consistent with the rule that the owner has the right to enjoy and dispose of a thing, without other limitations than those established by law (Article 428, Id.).

    Please note, however, that what you may only dispose of is your right to receive a share in the proper-ty left by your parents, which the law states is limited to the portion that may be allotted to you in the division upon the termination of the co-ownership. Thus, you can only sell an aliquot part in the prop-erty, not a specific or designated area. As succinctly explained by the Supreme Court in the case of Carvajal vs. Court of Appeals:

    An individual co-owner cannot adjudicate to himself or claim title to any definite portion of the land or thing owned in common until its actual partition by agreement or judicial decree. Prior to that time, all that the co-owner has is an ideal or abstract quota or proportionate share in the entire thing owned in common by all the co-owners. What a co-owner may dispose of is only his undivided aliquot share, which shall be limited to the portion that may be allotted to him upon partition. Before parti-tion, a co-heir can only sell his successional rights (G.R. No. L-44426 February 25, 1982).

    We hope we were able to sufficiently address your concerns. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net    

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    2 Comments

    1. Marie Juana Cerezo on

      Magandang hapon po. Tanong ko lang po kung paano po ang hatian ng mana.Kinasal po ang tatay ko sa unang asawa niya noong jan.15,1973 meron po silang isang anak.Ngayon po ikinasal po ulit ang tatay ko sa nanay ko noong July 7,1980, pinayagan po silang ikasal sa kadahilanan na matagal na po silang hiwalay ng unang asawa (not legally separated at hindi ko po alam kung ilang years silang hiwalay) at 7years old na po yung anak nila noon. May marriage certificate po sila sa NSO ganun din po sa pangalawa.Nung ikinasal po tatay namin sa nanay namin,nakipagrelasyon na din po yung unang asawa niya sa ibang lalaki at nagkaroon din po sila ng anak.(Hindi sila kasal).Kaming mga anak niya sa pangalawa ang bumuhay sa tatay namin hanggang sa pagkamatay niya.35years ngsama ang tatay at nanay namin na hindi tumututol ang unang asawa.Ngayon nung namatay na tatay namin naghahabol po ang unang asawa at ang kanyang anak.
      Tanong ko po Legal po ba or may bisa po ba yung kasal ng tatay at nanay ko?
      Paano po ang gagawin para mawalang bisa ang unang kasal?
      Paano po ba ang hatian ng mana?
      Ano po ba ang batas noon bago ka makipag-asawa sa kasal na?
      Sana po mapansin niyo po. Maraming salamat po.

      • Marie Juana Cerezo on

        additional pa po Yung titulo po ng lupa ay nakapangalan sa tatay at nanay namin (pangalawang asawa)