---The Family Home and Your Debts --- Part II

For the family home to be exempt from execution, two sets of rules are applicable:

a)Family home was constructed before the effectivity of the Family Code or before August 3, 1988 :

It must have been constituted either judicially or extra-judicially as provided
under Articles 225, 229-231 and 233 of the Civil Code.

a.Judicial constitution of the family home requires the filing of a verified
petition before the courts ;
b.Extrajudicial constitution is governed by Articles 240 to 242 of the Civil
Code and involves the execution of a public instrument which must also be
registered with the Registry of Property.

Failure to comply with either one of these two modes of constitution will bar a
judgment debtor from availing of the privilege.

b)Family homes constructed after the effectivity of the Family Code on August 3,
1988

a.The exemption is effective from the time it was constituted and lasts as long
as any of its beneficiaries under Art. 15413 actually resides therein.
b.Its value must not exceed certain amounts depending upon the area where it
is located.
c.The debts incurred must have been incurred after August 3, 1988.


And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved.

G.R. No. 185920
July 20, 2010
CONCHITA CARPIO MORALES
Associate Justice
Chairperson

My House Is Under Mortgage

1. What is a MORTGAGE
It is a Contract whereby the debtor assures the creditor the fulfillment of a principal obligation with the proceeds of sale of said property in case the said obligation is not complied with.

2. Possession of Property
As a general rule, it is retained by the mortgagor.
The mortgaged property is only subjected to a lien but ownership remains with the mortgagor.

3. Can I transfer it even if not fully paid?
If mortgagor has transferred the mortgaged property to a third person, it doesn't relieve him from his obligation to pay his debt to the mortgagee.
(Promissory Note is the primary document unless there is novation)

The mortgage lien is carried over and has priority over any other claims.
( the Real Estate Mortgage is an accessory document)

4. Can It be foreclosed even if it is a family home?

Yes. Family Code is specific:
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(3) For debts secured by mortgages on the premises before or after such
constitution;

Rent & Your Rights

Republic Act No. 9653
Rent Control Act of 2009

SEC. 4. Limit on Increases in Rent

1. For a period of one (1) year from its effectivity (approved July 14,2009)
no increase shall be imposed upon the rent of any residential unit.
2. After that until Dec. 31,2013 :

Rent shall not be increased by more than seven (7%) annually
as long as the unit is occupied by the same lessee

SEC. 5. Coverage

1. National Capital Region and other highly urbanized cities - P10,000.00
2. Other areas, - P5,000.00)

without prejudice to existing contracts.


SEC. 7. Rent and Requirement of Bank Deposit

Maximum one (1) month advance rent & two (2) months deposit which shall be kept in a bank under the lessor’s account name

- all interest that shall accrue therein shall be returned to the lessee at the expiration of the lease contract , or
- be forfeited in the amount commensurate to the pecuniary damage done


SEC. 13. Penalties.

1. A fine of not less than P25,000.00 nor more than P50,000.00) or
2. Imprisonment of not less than one (1) month and one (1) day to not more than six (6)
months or
3. both

The Family Home and Your Debts

Family Code of the Phils.

Art. 152.
The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

Art. 153.
The family home is deemed constituted on a house and lot from the time it is occupied as a family residence.

Art. 155.
The family home shall be exempt from execution, forced sale or attachment.

Art. 157.
The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

RULES OF COURT
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Sec. 9. Execution of judgments for money, how enforced
b) Satisfaction by levy.
the officer shall levy upon the properties;
The sheriff shall sell only a sufficient portion of the personal
or real property of the judgment obligor.

In other words, if your property is valued at P 1Million;
Your debt is P400,000.00 only, the sheriff will pay you
back P 600,000.00 once your property is "sold".

What if it is mortgaged?
If it is mortgaged for P 800,000.00, the sheriff will
pay the creditor P 800,000.00!
Would the bank be that stupid enough?

Real Estate 101

Who can own land in the Philippines?
Acquisition and ownership of private lands in the Philippines is limited and/or reserved to Filipinos or to Corporations or partnerships where at lease 60% of the authorized capital of which is owned by Filipino citizens, except:
1.When such property is acquired prior to the 1973 Constitution;
2.Acquisition by an alien or foreigner by hereditary succession;
3.Aliens/foreigners owning not more than 40% interest in a condominium project pursuant to RA 4726;
4.Where a former natural born Filipino who became a citizen of another country but is now returning to the Philippines to reside hereat permanently. Hence, may acquire through sale, donation, or through a tax sale, foreclosure sale, or execution sale not more than 1,000 sq. m. for urban land or not more than 10,000 sq. m. for rural land to be used solely for residential purposes and subject to other limitations and requirements as provided under the law (Batas Pambansa No. 185);
5.A Filipina who marries an alien retains her Philippine citizenship (to avoid being stateless) unless by her own act or omission she is deemed to have renounced her Filipino citizenship, may acquire and own private lands in the Philippines.

What are the bundle of rights of property ownership?
The bundle of rights theory inherent to property ownership are
- the right to use (Jus-Utendi),
- the right to enjoy the fruits of (Jus-Fruendi),
- the right to dispose (Jus-Disponendi),
- the right to abuse (Jus-Abutendi),
- the right to recover (Jus-Vindicandi), and
-the right to possess (Jus-Possidendi).

The rights incident to ownership are, the right:
1.to enjoy and dispose of a property without other limitations than those established by law;
2.to file action against third parties to recover ownership;
3.to use force as may be reasonably necessary to repeal or prevent an actual or threatened unlawful invasion or usurpation of his property (Art. 429, NCC, relate to Art. 312, RPC);
4.the right to enclose or fence property - walls ditches, live or dead hedges - or by any other means without detriment of servitudes constituted thereon;
5.to demand indemnity for damages caused to property;
6.the right to compensation in the event of expropriation;
7.the right to be restored to possession in case of unlawful dispossession;
8.the right to the surface and subsurface of the land, right to construct thereon any works, plantation and excavation without detriment to servitude and subject to special laws and without right to complain of the reasonable requirements of aerial navigation;
9.the right to hidden treasure;
10the right to accession and fruits of the property;
11.the right to "quiet title" to real property or any interest therein.

Can They Get My House?

I have a CC debt.
Can they get my house?

Well, let us assume what most Filipinos have - one and only property - your home.
These are normally under mortgage with Pag-ibig under a Housing loan facility.
The right to claim (first lien) therefore rests with that creditor.
If other creditors wants it, first, they have to pay & satisfy the claim of the holder
before they can have that first lien/priority.

BUT what if your debt is only P100,000.00 but the value of your house is a cool
P2 million?
well, the law requires that you get your change.

Pamana

One of the root causes of misunderstandings among children of deceased parents
involves MANA.

"Hatian" normally cause frictions among brothers and sisters.
why? some heirs would feel that "equal share" does not necessarily result in,well, equal shares!
One of the well known cases is that of Atty. Potenciano.
(which we will just leave it for you to do a research)

Settlement of estate ( left by the deceased) is either thru judicial proceedings, with respect to a WILL, or thru Extra-Judicial Settlement, when the deceased left
no will.

Judicial settlement is quite expensive,thus, the normal route is Extra-judicial Settlement of Estate where heirs agree among themselves who gets what.

We often see in Filipino films about a father "disinheriting" an heir.
not true. your parents cant just do away with your share easily.

Art. 887. The following are compulsory heirs:

(1) Legitimate children ;
(2) In default of the foregoing, legitimate parents;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287.

Disinherit an heir? here's the provision:

Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified ( enumerated under Art. 919)

Buying, Selling, Titling and Loaning Problems

Welcome to my own Real Estate Problems blog.
I decided to put up this blog to assist
people gain knowledge on the intricacies
of the real estate business and transactions.

REMEMBER though, I am no expert. just want to
share what I know. Nevertheless, take note that
real estate problems are the areas of a Realtor,
and not of lawyers.

This is one of the most important things to consider.