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
Dear Banker...
ReplyDeleteMJ here again with different issue aside from cc debts...
gusto ko lang po mag tanung sa inyo about my lot property in tagaytay..nakabili po kmi ng lote sa ST pierre subd LGTM REALTY po and developer sa parteng tagaytay pero batanggas na tlaga sya..ang monthly payments po namin is 10plus ..nakapag hulog po kmi for 3 yrs since 2006 then nung una po sa local office ng LGTM kmi nag babayad okey naman sya..then binigyan po kmi ng isa nilang agent ng account number ng LGTM sa banko..since LGTM naman ang account name duon na kmi nag huhulog and the only proof na naghuhulog kmi duon monthly is ung deposit slip nmin from the bank na inipon ko po tlga...since bayaad po kmi ng bayad sa LGTM para sa property sa tagaytay hinihingi ko na po ang contract sa knila kasi wala kami hawak kahit anung papeles from them pero hulog kmi ng hulog..nag oadala po sila ng contract pero mali mali po ang entries na naklagay thats why ibinalik po ng agent nila sa office at sabi sa amin ibabalik nila pag naayos na...simula po nuon tinamad na kmi mag hulog since wala nga documents then binisita namin ungproperty after two years wala pa din sya improvement kaya lalo na kmi hindi naghulog and we decided na wag na ituloy, nag punta kmi sa office nila asking for a refund ng naihulog namin at nakita namin ung records of payment namin is hindi updated wala ung mga hinulog namin sa banko sa account name nila...we demanded na ma update ang payments namin sa record nila and reklamo rin nmin wala kming hawak khit anung documents from them...pero completo ang mga resibo namin ng payments..hindi nila na update ang records nila pinatawag nila kmi ng pinatwag pero pinag papasa pasahan na lng kmi.Pumunta ulit kmi this year sa office nila at saying the same na we want our money back pinagawa nila kmi ng letter stating na mag rerefund kmi..that was in march this year..umalis kmi sa office without any guarantees sabi lng nila tawg tawg na daw kmi to follow up ung pag refund namin dahil marami nga daw nag rerefund...until now natawg pa rin kmi at iisa ang sinasabi nila either nag loloan pa daw ang LGTM para maibalik ang pera nmin or nasa meeting sa 8th floor ang taong gusto namin makausap...anu po ba ang maganda ko gawin kasi 300k plus po ang naihulog namin sa knila.
You file a formal complaint with the HLURB.
ReplyDeletehttp://hlurb.gov.ph/services/buyers/related-laws/jurisdiction-on-cases-for-violation-of-pd-957/
hi banker,
ReplyDeleteim back fresh from singapura, i dont where to start, nevetheless, you see we got a housing loan po sa PAG-ibig, using my husband's account after sometime i received a letter that the house was foreclosed due not paying the monthly amortization, buyback po ung house so the devepoper bought the house agen. end of discussion wala n kmi magagawa dun, negligence on our part i must admit. (but we tried to pay it agen ayaw lang ng developer for the obvious reason) my question is, is my husband considered black listed from PAG-ibig since he did not pay the housing loan? and cannot use / avail the MPL? can i get another housing loan under ny name? (if posible without the concent of my Husband).. thanks tito by the way PM ur address i got sumthing from u and mrs. Uy)
have a great day tito
hinde ka naman puede i-blacklist kasi its a housing loan - fully collateralized yun plus its against your future benefits w/ them pa!
ReplyDeletekung married ka, it has to be w/ martial consent.
di ba "till death do us part"? :-)
e-mail me at :
davaoepsa@netscape.net
hi banker,
ReplyDeletei came from your other blog po. thank you for your reply. i got confused with the some of the legal terms here :)
anyway, here's more info about our situation. we are a young couple married last 2001. we acquired our house and lot last 2004 by getting a loan from rcbc savings bank. we are the first time owners of the property which got built 2003. my husband and i still live in that house with our 3 kids (age ranges from 2 months to 8 years old) so we can consider it as our family home.
we had a bpi credit card which we weren't able to pay last 2007. collectors came and even call us but i didn't mind them as my husband told me since nananakot lang sila. then, one day in 2009, a sheriff from MTC Pasig city came here with the court order from MTC Makati city. we have a civil case daw demanding for immediate payment. we didn't mind it again. dapat po ba humarap kami sa korte nung time na yun?
now, as i've mentioned in your other blog, we are selling the said property since we're having problems paying rcbc. we want to unload our housing loan. when our broker got our title from the registry of deeds, there was an annotation which states:
Entry. No NOTICE OF LEVY ON EXECUTION - Affecting all the rights, interest and participation of the registered owner in the property described herein accordance with Notice of Levy on Execution issued in connection With Civil Case No. dated August 26, 2009 entitled Bank of the Philippine Islands, Plaintiff versus , Defendants. This Property is under "CUSTODIA LEGIS"(Custody of the Law). Date of Inscription: August 26, 2009 at 11:20am.
question ko po: can bpi or collection agency do that? does bpi have a right to annotate a notice of levy on execution on our property which is mortgaged thru another bank? it is our family home. conditions a and c are met naman.
what does this condition "b.Its value must not exceed certain amounts depending upon the area where it is located." mean? The value of our house shouldn't exceed what amount?
can we claim exemption? should condition b be meet also?
maraming salamat po ulit banker :)
There are many approaches to this problem w/c only you can decide because you have all the data.
ReplyDelete1. RCBC can challenge the levy because it is mortgaged to the already!
2. If the claim of BPI is only minimal as compared to your net proceeds, you can discuss possible arrangement here.
3. since you can no longer afford to pay your housing loan, one way out is to have it "foreclosed", waive your redemption rights and buyer applies to purchase it.
4. you can "surrender" your property via Dacion en Pago (payment in kind) and your buyer makes PRIOR arrangement w/ the bank.
5. you can ask the court to squash the levy for reason of its being a family home ( you will incur expenses of course)
consult a lawyer or your broker about these moves. do update me. this is an interesting case.
hello banker... markangX here... hope this is the right thread. just want to be enlightened...
ReplyDeleteyung ancestral home ng barkada ko, 14 years na hindi nagbabayad ng amelyar, ang utang sa city ay 470K sa improvement at 165k sa lot...
napa-auction ng city after due notice, ang naging amount ay 700k. ang laki ng bahay although luma, at ang lupa ay 240sqm... market value is 4m (house and lot)
bakit na-dspose ng city ng 700K lang? may sukli pa ba yun? merong 1 year redemption period pero sa price na raw ng nakabili...
Family Code of the Phils.
ReplyDeleteArt. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For nonpayment of taxes;
The real estate tax due is covered by PRESIDENTIAL DECREE NO. 464
Sec. 66. Penalty for delinquency
at the discretion of the City Treasurer but often the property itself is sold thru auction and has one year redemption period.
Sec. 78. Redemption of real property after sale.
to redeem the same by paying the
- total amount of taxes and penalties due up to the date of redemption
- the costs of sale and
-the interest at the rate of twenty per centum on the purchase price
nope. the proceeding is similar to foreclosures.
markangX... ulit
ReplyDeletethanks banker. btw, i emailed my concerns to my sisters. hope tama pagkakaintindi ko sa usapan natin, hehehe... here is a snippet of my email:
1. a property can be negotiated by owner/s as constituted in the title (if married, by spouses (husband and wife only)).
HOWEVER, BY LAW, the death of a spouse created compulsory heirs who became co-owners of the property. the constitution of the property is now
- one half owned by living spouse
- the other half equally owned by living spouse and his children
2. if an actual sale will be opted (real sale with real buyer
2.1 simultaneous extra-judicial settlement and sale
this means that we will be executing a settlement outside court that papa and all compulsory heirs are in agreement for the sale. however, each compulsory heir are entitled BY LAW to their share from the proceeds, UNLESS, it will be waived for the benefit of another person. the sale is subject to 6% capital gains tax to be paid from the proceeds of the sale, and 1.5% documentary stamp to be shouldered by the buyer.
2.1 extra-judicial settlement first before sale.
this means that we will first change the ownership of the property before proceeding with the sale, which is more tedious. upon sale of the property, all compulsory heirs are required to sign the deed of sale. however, each compulsory heir are entitled BY LAW to their share, UNLESS, it will be waived for the benefit of another person. the sale is subject to 6% capital gains tax to be paid from the proceeds of the sale, and 1.5% documentary stamp to be shouldered by the buyer.
in both cases, ALL compulsory heirs must sign and agree to the sale.
note: a sale may become VOID before, during, or after sale if any one of the compulsory heir is not a signatory to the sale and will appeal his or her case. in this case, all of the compulsory heir MUST BE a signatory to the sale
korek.
ReplyDeletethe proper chapter is found here:
http://realestateproblems-banker.blogspot.com/2010/08/pamana.html
hi Mr. Banker...lea po....may personal loan po kmi sa bank and titulo ng lupa ang collateral...ang problem po almost 4 months na po kmi hindi nakakabayad ng interest. pero magbabayad nmn po kmi kc may hinihintay lng po kmi na pera.. ang tanong ko lang po ano po bang actions ng bank ang pwede nila gawin.. may right po ba sila na kuhanin ung lupa namin pero magbabayad nmn kmi in due time....hoping for your response....Thanks
ReplyDeletelea,
ReplyDeleteI would suggest you talk to the bank about the delay. either you will have restructuring or merely extension to pay your repayment based on your cash inflow.
pag-usapan na lang ninyo para win-win situation.
Hi banker,
ReplyDeletelot to learn on your blogs, thank you for your wisdom. May I just inquire you about our current situation in crown asia, i hope you could help us on our next step to take. My wife and I are currently amortizing the down-payment for the house and lot we acquired last March 2010. Now after a year of amortizing the down payment we were ask to submit some documents so they could start building the house, but one of the requirement is the notarized affidavit of denial because they said they found our names in CMAP (w/c is true because we have unsettled cards way back 2006).
The affidavit states the following:
1. That I am _______________________ and was born on ____________at _________________________.
2. That according to the files of Credit Management Association Philippines Inc. (CMAP) performed by Crown Asia Properties Inc./ RCBC, a person bearing the name as mine appears to have criminal and/ or derogatory records;
3. That the criminal and/ or derogatory records do not pertain to me, as I have never been arrested by any law enforcement agency, nor have I been accused or convicted before by any court or tribunal in the Philippines or abroad, or to any Financing Agency;
4. That I executed this affidavit to deny categorically and specifically that I am not the same person mentioned with criminal and/ or derogatory information.
5. That I understand, that should any of the aversement herein is found to be false; I am liable for perjury under Art. No. 163 of the Revised Penal Court, and for such other criminal and/ or administrative action that maybe instituted against me.
With this, we were thinking that there's a higher chance that we will get denied in our bank applications. So we are thinking to use our pag-ibig so we get a bigger chance of housing loan approval (is that right banker?).
We are about to filled out this form, but may I ask first your thoughts on this. Thank you very much.
Crown Asia is too simple minded:
ReplyDelete1. you can get better with that by getting an NBI clearance. lol!
2. What's "derogatory" mama?
3. are they "Saints"?
4. so what if you have other unpaid loans? your loan w/ them is FULLY secured and for take-out by a bank.
These things normally happens when housing "experts" simply copy the requirements but do not do WHY is is being required!
go straight to PAG-iBIG.
dami namang properties for sale dyan.
:D
BTW,
ReplyDeleteyour "prepared affidavit" does not state the primary purpose of this affidavit.
Maybe their lawyer just forgot it?
its basic in legal documentation.
:))
Hi banker,
ReplyDeleteThank you so much for your quick response. This helps a lot.
Meron pa pala sa ibaba ng template ng affidavit na binigay nila..
ACKNOWLEDGEMENT
REPUBLIC OF THE PHILIPPINES )
) S.S.
BEFORE ME, Notary Public for and in personally appeared the following:
Name Comm. Tax. Cert. Date/ Place Issued
Known to me and to me known to be the same person who executed the foregoing Affidavit of Denial and acknowledged to me that the same is their own free and voluntary act and deed.
WITNESS MY HAND AND NOTARIAL SEAL on the date and place mentioned above.
Doc. No. .
Page No. .
Book No. .
Series of 2011.
Anyway, do you think it's safe to just accomplished this just to complete their requirements kasi as of now in-house financing pa dahil lakdain ko pa lang pag-ibig sana. Thanks for your advise.
ferds
that's the acknowledgment section of a document.
ReplyDeleteok yan.
If you have no CRIMINAL cases, I think its safe.
BUT "derogatory" should be deleted or at least clarified - what is derogatory to a bank might not be true to me.
if derogatory is meant " no offenses involving imprisonment etc." then, ok na.
Thank you very much for your advise banker. God bless.
ReplyDeleteGud afternun...... My karapatan po ba ang mga anak nang nagbenta nang lupa kahit nabili na ito nang iba... May karapatan ba cla mag claim kahit na ang transaksyun ay sa pagitan nang kanilang magulang na buhay pa?????
ReplyDelete1) May karapatan po ba ang mga anak nang nagbenta nang lupa kahit nabili na ito nang iba...
ReplyDeletewho is the registered owner or holder of a valie Special Power of Attorney determines who has the legal right to sell the property
2) May karapatan ba cla mag claim kahit na ang transaksyun ay sa pagitan nang kanilang magulang na buhay pa?????
It is not the children's property. Sa parents yun!
their rights only commences upon death as heirs
Hi Banker,
ReplyDeleteMay malaking utang po ako sa credit card kaya po inaaral ko po itong family home. Maaari po ba talagang lagyan basta basta ng attachment ang bahay? Kailangan ko pa po ba ng attorney para ipaglaban ang family home?
a)Family home was constructed before the effectivity of the Family Code or before August 3, 1988 :
yung "constructed" po ba ay kung kailan ginawa yung bahay kahit di pa po kami nakatira dun? Luma na po yung bahay nung lumipat kami. 90's lang po kami natira doon. Considered po kaya na before 1988 kami o after. Nalilito po ako sa "constructed" at "constituted".
Paki-enlighten po sana ako banker. thank you.
melissa
banks only go after deposits.
Deleteother than that are lies of collectors.
lol!
Talaga po banker? sana nga po...
DeleteKinakabahan ako paggising ko nitong madaling araw, baka may lien nalang bigla yung bahay namin.
Hindi po ba pwede nila lagyan ng lien yung title ng family home namin? thank you.
Malaki po amount, aabot daw po ng milyon dahil sa interests and finance charges. Hindi na po ako makatulog ng maayos banker, natatakot ako para sa family home namin. Kapag po ba family home automatic na po na bawal nilang galawin o kailangan ko pa po ilaban sa korte kung lalagyan nila ng lien yung family home namin tsaka ko ilalaban na exempted yun dahil family home?
DeletePasensya na po sa praning. Natatakot po ako pag-usapang korte. Thank you.
Nabasa ko din po kasi yung isa nyong article: the family home and your debts, yung tungkol sa mga lien. Kung credit card po ba hindi na umaabot sa lien?
Deletesiguro kung ang utang mo is P50 million.
Deletelol!
Kapag one million po di nila pagkakaabalahan?
DeleteThank you po.
it is below P50 million.
Deletelol!
Hello Banker,
ReplyDeleteAno po ibig sabihin ng "constructed" dito? Kung kelan po kami tumira sa bahay o kung kelan po tinayo yung bahay? Paano po kung yung bahay namin luma na bago kami lumipat? Ang titulo namin ay 90's na kahit bago pa mag1988 e buhay na po yung bahay? Alin po ang titingnan? Yung pagkakatayo po dati pa o yung pagkakabili namin nung 90's? Salamat po.
a)Family home was constructed before the effectivity of the Family Code or before August 3, 1988 :