• Son who sells property without authority can be sued

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My husband and I bought a three-door apartment in Cavite. After the death of my husband in 2012, it came to my knowledge that our property was allegedly sold by my son to a certain Mr. Ti. I verified the matter with the Register of Deeds in Cavite and true enough, the Certificate of Title of the property was already canceled.

    I obtained a copy of the Deed of Sale, and I immediately noticed the difference of my signature with that appearing on the deed. What should I do in order to recover the property? Can I file a complaint against Mr. Ti without including my son?

    Dear Tonia,
    You may file a petition for the nullification of the Deed of Sale and Reconveyance of property. The contract of sale entered into by your son is valid only as to his share on the estate left by your husband, and it does not cover your share.

    A Special Power of Attorney is necessary to create or convey real rights over immovable property (Article 1878 (12), Civil Code of the Philippines). The Supreme Court said in Alcantara vs Nido(G. R. No. 165133, April 19, 2010), that:

    “A Special Power of Attorney is also necessary to enter into any contract by which the ownership of an immovable is transmitted or acquired for a valuable consideration. Without an authority in writing, respondent cannot validly sell the lot to petitioners. Hence, any sale in favor of the petitioners is void. Our ruling in Dizon v. Court of Appeals is instructive:

    “When the sale of a piece of land or any interest thereon is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void. Thus the authority of an agent to execute a contract for the sale of real estate must be conferred in writing and must give him specific authority, either to conduct the general business of the principal or to execute a binding contract containing terms and conditions which are in the contract he did execute. A Special Power of Attorney is necessary to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. The express mandate required by law to enable an appointee of an agency (couched) in general terms to sell must be one that expressly mentions a sale or that includes a sale as a necessary ingredient of the act mentioned. For the principal to confer the right upon an agent to sell real estate, a power of attorney must so express the powers of the agent in clear and unmistakable language. When there is any reasonable doubt that the language so used conveys such power, no such construction shall be given the document.”

    Further, Article 1318 of the Civil Code enumerates the requisites for a valid contract, namely:

    1.Consent of the contracting parties;

    2.Object certain which is the subject matter of the contract;

    3.Cause of the obligation which is established.

    Respondent did not have the written authority to enter into a contract to sell the lot. As the consent of Revelen, the real owner of the lot, was not obtained in writing as required by law, no contract was perfected. Consequently, petitioners failed to validly acquire the lot.”

    Since your son had sold the property without any authority, he must be included in the complaint whether such action be civil or criminal in nature.    We hope that we were able to answer your query. 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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