Property of mother who is still living can’t be sold by her children

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Persida Acosta

Persida Acosta

Dear PAO,
My parents are not married. Through the years. my mother was able to purchase a small lot in Tagaytay, the title of which appears under her name. My brother and I are thinking of selling it. What do we need in case we want to pursue the sale of that lot?
Panqui

Dear Panqui,
You did not mention whether your mother is still living. To address your concerns adequately, allow us to qualify our answer. If your mother is still living, then the right to sell the small lot in Tagaytay rests only upon her being, as you have mentioned in your letter, the owner thereof. This is in accordance with Article 428 of the New Civil Code of the Philippines, wherein it is clearly provided that it is the owner of the property who possesses the right to enjoy and dispose of the thing he owns, without other limitations than those established by law.

Nevertheless, your mother may empower you and/or your brother to sell the property in her behalf through a contract of agency. Under this contract, a person, commonly known as an agent, binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. (Article 1868, Id.)

Corollary, if your mother is willing to sell the subject property as well as to constitute you and/or your brother as her agent/s, then it is essential for her to execute a Special Power of Attorney or SPA in order for you and/or your brother to validly represent her in such transaction. This is in consonance with Article 1878 of the New Civil Code of the Philippines which provides, “Special powers of attorney are necessary in the following cases: x x x (5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for valuable consideration; x x x”

On the other hand, if your mother has already passed away, you and your brother as well as the other heirs of your mother, if there still be any, must first settle her estate in order to vest full ownership under you and your brother’s name and, eventually, enable the two of you to transact said property, such as in a contract of sale. This may be done through an extrajudicial settlement of estate provided that your mother left no will and no debt, and her heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose. Accordingly, a public instrument reflecting the settlement in favor of you and your brother must be executed and filed before the office of the register of deeds of the place where your mother last resided (Section 1, Rule 74, Rules of Court). Such settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks. No extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Section 1 in relation to Section 2, Rule 74, Id.)

Should the settlement be in order, a new title will be issued under your and your brother’s names. From that time on, you may enjoy and dispose of the property, which includes selling the same.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other 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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