• Selling undivided inheritance


    Persida Acosta

    Dear PAO,
    My brother Julio and I inherited 1,000 square meters of residential land. The property was titled in the name of our parents who passed away last year. We have not yet executed an extra-judicial settlement of the estate since we do not have any money to defray expenses for partition and transfer of the property. I am intending to sell my share from the land. A prospective buyer, however, would like a portion of the property where our old house was erected since this is nearer the highway. My brother objected to the proposal of the buyer because he is the one occupying the house. Can I sell the portion of the land that the buyer wants?

    Dear Celso,
    Based on the facts you have provided, your parents died without a will. Hence, the rule on legal or intestate succession pursuant to Article 960 (1) of the New Civil Code shall apply to your situation. Under this provision of law, “legal or intestate succession takes place: (1) if a person dies without a will, or with a void will, or one which has subsequently lost its validity.” Relative thereto, Article 980 of the same code also states that “the children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.”

    Upon the death of your parents, the property shall be owned in common by you and your brother. This finds support under Article 1078 of the law, which states that “where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased.”

    In the case of Carvajal vs. the Honorable Court of Appeals (G.R. No. L-44426, February 25, 1982), the Supreme Court through former Chief Justice Claudio Teehankee stated:

    “While under Article 493 of the New Civil Code, each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto and he may alienate, assign or mortgage it, and even substitute another person in its enjoyment, the effect of the alienation or the mortgage with respect to the co-owners, shall be limited, by mandate of the same article, to the portion which may be allotted to him in the division upon the termination of the co-ownership. He has no right to sell or alienate a concrete, specific or determinate part of the thing in common to the exclusion of the other co-owners because his right over the thing is represented by an abstract or ideal portion without any physical adjudication. 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 partition, a co-heir can only sell his successional rights.”

    Applying the above-cited decision to your situation, you cannot sell a definite or specific portion of the property like the portion where the old house is located, because there is no partition yet or physical division of the property made by agreement or judicial decree. Your share and that of your brother is ideal or abstract. So, what you are actually selling to the buyer is your proportionate share, which shall be limited to the portion that will be allotted to you after partition.

    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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