(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner of Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected])

^{CAN A BUYER OF A PROPERTY UNDER A LEASE CONTRACT IGNORE THE OBLIGATION OF THE PREVIOUS OWNER?}

^{Hank and Felix entered into a 15 year lease contract whereby Felix allowed  Hank to occupy his commercial property in Hagonoy Bulacan. Upon the insistence of Hank the lease was registered  in the title of the property. Two years after executing the lease, Felix died and his sons inherited the land..}

^{Less than a year after inheriting the land, the heirs of Felix  immediately instituted an  action to evict Hank claiming  that they were not bound by the contract  because they were  a party to it.  They also claim that the death of Felix, terminated the contract hence Hank no  longer had no right to  the property}

^{HEIRS CANNOT EVICT HANK}

^{Under Article 1311 of the Civil Code, the heirs are bound by the contracts entered into by their predecessors-in-interest except when the rights and obligations therein are not transmissible by their nature, by stipulation or by provision of law. A contract of lease is, therefore, generally transmissible to the heirs of the lessor or lessee. It involves a property right and, as such, the death of a party does not excuse non-performance of the contract.[1][29] The rights and obligations pass to the heirs of the deceased and the heir of the deceased lessor is bound to respect the period of the lease.[2][30] Consequently, the successors-in-interest of the lessee are entitled to the benefits, while that of the lessor are burdened with the duties and obligations, which said covenants conferred and imposed on the original parties.} LLENADO vs. LLENADO G.R. No. 145736: March 4, 2009

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

-Ferdie Aguirre

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /(403) 4747168 or at [email protected])

CAN A PERSON BE PREVENTED BY PRESCRIPTION (LAPSE OF TIME) FROM BRINGING AN ACTION TO ANNUL A FRAUDULENT TRANSACTION

Romeo was a contract worker in Japan where he was employed as a waiter in a Karaoke Bar .  During his first year there, Romeo was content in having enough money to send to his wife Mila and his son Enrique who were both living in Pampanga  Being a likeable fellow, Romeo was able to befriend some of the customers who worked in the scrap yards.  He learned from his new friends that he could make more money from the  junkyards.  Having been a mechanic’s helper when he was a teenager, Romeo knew how to dismantle cars for parts which he later sent back to his buyers in Manila.   With the great demand of surplus car parts in Manila, Romeo was able to build his sideline into a multi million peso business.  He quit his job and was able to employ his own chop chop boys from Manila. These trappings of success came with its share of temptations and as expected with the “new rich”, Romeo eventually acquired a mistress named Alice. A young and sexy “guest relations officer “(GRO) from the night clubs of Quezon City  At first, Alice appeared to be content with the usual in dinners in 5 star hotels and casual gifts from Romeo until she bore Romeo a daughter.   After noticing that the little girl became the apple of Romeo’s eye, Alice became demanding.  Instead of the usual two day a week visits, Alice demanded that stay with her and their daughter during the weekday and visit Mila his real wife only on weekends.  Romeo was able to pull this of on the pretext of having to be in Manila during weekdays when the shipments from Japan were arriving.

One night after a having slept with Alice in their upscale condo in Makati, Romeo suffered heart attack.  Despite efforts by doctors to save his life, Romeo died.  Distraught with the fear of losing her meal ticket, Alice rummaged through the documents in Romeo’s office table in their condo unit.  There Alice saw several land titles covering houses and lots in prime locations in    Ayala Alabang, Cebu, Tagatay and Cavite.  Alice forged the signature of Romeo and was able to register the titles of the properties in her name.

Fifteen years after Romeo’s death, Mila opened a box containing some files belonging to her late husband.  There she saw the photocopies of the titles of the properties fraudulently taken by Alice.   She showed it to her son Enrique, who is now already a lawyer.     After some investigations, Enrique discovered that aside from being a forgery, the deeds of sale covering the properties in question were notarized weeks after Romeo died.  As expected, Enrique brought action to annul the sale of the properties.

During the trial Alice argued among others, that the filing of the case was barred by prescription.

IS THE CASE BARRED BY PRESCRIPTION OR THE LAPSE OF TIME

The action is not barred by prescription or lapse of time. The supposed vendor’s signature having been proved to be a forgery, the instrument is totally void or inexistent as “absolutely simulated or fictitious” under Article 1409 of the Civil Code.⁵¹cralaw According to Article 1410, “the action or defense for the declaration of the inexistence of a contract does not prescribe”. The inexistence of a contract is permanent and incurable which cannot be cured either by ratification or by prescription.(G.R. No. 163271 : SPOUSES PATRICIO and MYRNA BERNALES, Petitioners, vs. HEIRS OF JULIAN SAMBAAN, namely: EMMA S. FELICILDA, ANITA S. SAMBAAN, VIOLETA S. DADSANAN, ABSALON S. SAMBAAN, AGUSTINE S. SAMBAAN, EDITHA S. MANGUIRAN, GRACE S. NITCHA, CLODUALDO S. SAMBAAN, GINA S. SAMBAAN and FE S. YAP, Respondents).

cralaw

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /(403) 4747168 or at [email protected])

CAN FORMER FILIPINOS INHERIT LAND IN THE PHILIPPINES ?

Cherrie was a nurse who left the Philippines to work in Canada in 1985.  Having stayed Canada continuously for several years , she became a Canadian in 1993 and settled there permanently.

In 2001, her mother and sadly in less than a year her elderly father succumbed to a heart attack.

Coming home to attend the wake of her father, he sibling informed her that she has to sign some papers so she could get her share of the inheritance which comprise real estate properties of her deceased parents.  After everything was put in order, the papers were sent to the register of the deeds together the land titles of her parents.  After seeing that Cherrie was a Canadian , he refused to register the property in her name claiming the law prohibits ownership of real property to foreigners . Is the Register of Deeds right?

THE REGISTER OF DEEDS

IS INCORRECT

Filipinos can inherit land by intestate succession.

By law, only Filipinos are allowed by Philippine laws to acquire by purchase, transfer or assignment any lands in the Philippines. However, there are some execptions where foreigners may be able to acquire real estate properties in the Philippines.  One of these execptions is provided under the Philippine Constitution and we quote:

Section 7, Article XII of the Philippine Constitution, foreigners can inherit land.

SEC. 7. “Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.”

Under the circumstances, Cherrie can acquire ownership of the land even if she was already a Canadian at the time of the death of her parents.

(Legal Disclaimer: This article is designed for general information. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.  )

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner of Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected]).

WHAT KIND OF PERSONS CANNOT

GIVE  CONSENT TO  A CONTRACT?

Joey is the son of a wealthy businessman from Guagua Pampangga. Aside from his passion of collecting vintage sportscars, Joey desperately wanted to become a lawyer.   It was not surprising that after graduating from college, he took up law to pursue his lifelong dream.  All seemed well at the start, however on his second semester , he started having problems with his with long time girlfriend Marivic. Apparently, Marivic has missing attention that Joey used to shower her in their college days which unfortunately, he could no longer give because of the demands of his law studies.  Because of this, Marivic demanded a cool off from their relationship, and started dating Luisito,  a good for nothing bum who, after his 7 years in college, has not finished a single course.

Going home one night from law school, Chito decided to pass by Marivic’s house in order to get a glimpse of his girlfriend.  What he saw gave him the shock of his life, as he saw Marivic kissing Luisito in his parked car.    The days that followed showed a drastic change in Joey.  He started neglecting studies and because of this, his grades took a nosedive and eventually he was kicked out of law school.  Losing Marivic and his shattered dream of becoming a lawyer was too much for Joey that he began to lose his mind.  Joey started wandering about in public in his underwear and talking to walls.  Alarmed by his behaviour, Joey’s father had him treated in secret by the best psychiatrists in Manila.   Learning about Joey’s condition,  Victorino another sportscar collector, hatched a plan to acquire Joeys collection of rare cars.  Approaching Joey one day, Victorino made Joey sign a deed of sale of the best cars in Joey’s collection on the promise that he will convince Marivic  to welcome him back.  Joey immediately signed the contract.

The next day, Victorino went to Joey’s garage to get the cars. Fortunately, the guard called  Joey’s father who refused to release the vehicles.

Victorino went to court claiming that Joey was bound by the contract he signed.

IS JOEY BOUND BY THE CONTRACT HE SIGNED?

Joey is not bound by the contract.

There are 3 elements in a contract as provided for under Art 1318 of the Philippine Civil Code:

(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. (1261)

In the instant case, Joey because of his mental condition could not have given a valid consent hence there is no contract to speak of.  The Art 1327 of the Civil Code is clear on this matter and we quote

Art. 1327. The following cannot give consent to a contract:

(1) Unemancipated minors;

(2) Insane or demented persons, and deaf-mutes who do not know how to write. (1263a)

From the above, Victorino cannot enforce the contract.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

-Ferdie Aguirre

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /(403) 4747168 or at [email protected])

CAN A FOREIGN DIVORCE HAVE ANY LEGAL EFFECT IN THE PHILIPPINES

Elvie is a live in caregiver in the United States who  fell in love and married  Joel, a plumber from Illinois.  From their relationship was born Raj who was born in 2009.

Unfortunately, the couple had irreconcilable differences and the marriage finally ended up in divorce in Illinois .

In its ruling, the Illinois court dissolved the marriage of Joel and Elvie, awarded to Elvie sole custody of Raj and retained jurisdiction over the case for enforcement purposes.

After the divorce Elvie went home to Manila with Raj.

Joel followed to Elvie Manila where they executed a contract (Agreementlaw ) for the joint custody of Raj. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement.

Later, Joel sued Elvie in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Joel alleged that in violation of their Agreement, Elvie exercised sole custody over Raj.

Elvie sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree.

THE AGREEMENT FOR JOINT CUSTODY IS NULL AND VOID AS IT CONTRARY TO PHILIPPINE LAWS

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy. Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”^. For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint child custody stipulations

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Raj was under seven years old (having been born on 21 September 1995); and (2) Joel and Elvie were no longer married under the laws of the United States because of the divorce decree.

The relevant Philippine law on child custody for spouses separated in fact or in law¹aw (under the second paragraph of Article 213 of the Family Code) is also undisputed: “no child under seven years of age shall be separated from the mother x x x.”law (This statutory awarding of sole parental custody¹⁷cralaw to the mother is mandatory,law grounded on sound policy consideration, subject only to a narrow exception not alleged to obtain here.alaw ) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between Elvie and Joel over their child under seven years old contravenes Philippine law.

The Agreement is not only void ab initio for being contrary to law as it violates Article 213 of the Family Code, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live togetherralaw However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” To limit this provision’s enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age “to avoid a tragedy where a mother has seen her baby torn away from her.”²³cralaw This ignores the legislative basis that “[n] o man can sound the deep sorrows of a mother who is deprived of her child of tender age.”

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents.²⁵cralaw However, these are objections which question the law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that Joel and Elvie are not barred from entering into the Agreement for the joint custody of Raj, Elvie repudiated the Agreement by asserting sole custody over Raj.  Elvie’s act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on Elvie sole custody of Raj.

Nor can Joel rely on the divorce decree’s alleged invalidity in the Philippines, foreigners in this jurisdiction are bound by foreign divorce decrees . It is a settled the matter that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for Oaths in AlAlexa and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected])

THINKING OF BECOMING A GUARANTOR FOR A LOAN ? READ THIS FIRST

Wina is a self made millionaire who made her fortune producing and exporting foodstuffs to Filipino stores in Canada. Due to her present status as a wealthy exporter of goods, she found herself being accepted and invited in the party scenes of Metro Manila’s new rich.

In one of the occasions she attended, Wina was introduced to Alex, who according to her friends made his pile of money as the newest financial and real estate wizard of the decade.  Intrigued by his status and charm, she accepted his invitation to have dinner.  Actually more interested in learning how to acquire more wealth than having a fling, Wina accepted Alex’s invitation to dinner the following evening.  While sipping wine in one of Manila’s five star resto, she learned that Alex, through his banking connections was able to acquire foreclosed real properties and resell or “flip” them in a few months for more than double the price.  Cruising with him in his Mercedes Benz, Alex showed Wina his newly acquired properties which according to him were undergoing minor “cosmetic” renovations. Alex even stopped and went down on one of the jobsites and talked briefly to one of the workers.  “I bought this one for just over a million and I already have a buyer for three million after a spending less than a hundred thousand on repairs” Alex said as he alighted from his car.  Seeing the opportunity to make more money, Wina did not lose time to ask Alex for a piece of the action.  Alex merely smiled and told her he will see if he could “accommodate” her request.  After almost a week of waiting for a call on her cell phone, Wina finally received a call from Alex who told her of a “prospect” where both of them can potentially make at least one million pesos each on a three million peso investment. The scheme was simple; Alex will acting from “tip” from his banking connections, will the buy the property from the owner before it is foreclosed by the bank.  Alex admitted to Wina that he already has 5 prospective buyers for this property but  since he has several ongoing projects he already” maxxed” out his credit and needs “ a guarantor” for the loan he needs for this property. Alex even said that the owner might even agree to give a 10 percent bonus upfront which he plans to share with her once the loan is released.  With a ready profit on hand and the prospect of a hefty profit, Wina was more than willing to sign the “dotted line”as a guarantor.  This transaction was repeated several times in a span of less than a month and Wina found herself being a guarantor to Alex’s loans in the total amount of over twenty million big ones.  Being with Alex almost on a daily basis either in his mansion in Valle Verde, Pasig City or in the lobby of a 5 star hotel in Makati, Wina had no reason to suspect anything, She was always with him when Alex visits the jobsites and talks briefly with a worker. Not wanting to ruin her expensive Pradas, she never went out of the car to the muddy construction sites to see or hear what was going on. Often, she overhears Alex receiving calls in his blackberry from prospective buyers for their “real properties”.   Everything seems to be going smoothly until Alex told her that he will be leaving for abroad for a few days to check on his overseas investments. Alex did not come back as promised and the weeks that followed were a nightmare.  Letters started pouring in from banks demanding payment for the overdue loans she guaranteed.  Apparently Alex did not pay the amortizations for the loan she guaranteed.  Apparently, he was able to acquire the properties with very minimal downpayments on account of Wina’s impeccable credit standing and assets. To compound her problems, Wina was not on any of the titles of the properties and that the purchase price of the properties were overvalued to almost double their market price. She almost fainted when she later learned that his mansion in Valle Verde and the luxury cars were all merely leased and owned by another individual.   In short, Alex, pulled  a fast one on Wina and his other victims.

Wina wrote back to the banks stating that she should not be held liable for the loans as she merely accommodated Alex in his loan applications.  To make a long story short, the banks brought Wina to court.

AS A GUARANTOR, WINA MAY BE MADE LIABLE

TO PAY THE LOAN CONTRACTED BY ALEX

Whether it be for a small loan, a mortgage or just to help a friend get a credit card application approved, signing your name as guarantor can make you liable to pay a part or even the entire debt.

Philippine laws on Guaranty are simple and needs no further interpretation. Article 2047 of the New Civil Code of the Philippines provides that:

Art. 2047. By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the principal debtor in case the latter should fail to do so. xxx

By signing as guarantor, Wina bound herself to pay the loans of Alex in case he fails to pay. This situation may also happen even outside the Philippines as laws concerning Guaranty are usually universal in nature.  Hence  a contract of Guaranty for any loan or undertaking entered in Canada may also have the same effects as that provided above.

Loans on Guaranty and Suretyship is universal and basically the same in almost all countries, so before signing your name as guarantor in behalf of a casual acquaintance….…

THINK TWICE.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner of Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected])

CAN FOREIGNERS LEGALLY  OWN REAL PROPERTY IN HE PHILIPPINES THROUGH THEIR SPOUSES ?

Elena and Helmut were married in Canada in 1989. The couple resided in Canada  at a house owned by Helmut’s parents but decided to move and reside permanently in the Philippines in 1992. By this time, Helmut had inherited the house in Germany from his parents which he sold and used the proceeds for the purchase of a parcel of land in Antipolo, Rizal at the cost of P528,000.00 and the construction of a house amounting to P2,300,000.00. The Antipolo property was registered in the name of petitioner under Transfer Certificate of Title No. 219438 ⁵ of the Register of Deeds of Marikina, Metro Manila.

After experiencing the nightlife Manila has to offer, Helmut became abusive and cruel to Elena until Elena was forced to file for legal separation.  After the judgment was rendered, Helmut filed a civil claim to seek reimbursement from his wife for the purchase and construction of their conjugal home.

WILL HELMUT BE REIMBURSED FOR HIS EXPENSES IN PURCHASING THEIR CONJUGAL HOME ?

There is an express prohibition against foreigners owning land in the Philippines.  In putting the house in the name of Elena, Helmut tried to do indirectly what he is prohibited from doing directly.  Because of this, the Philippine Supreme Court denied his claim citing the constitutional prohibition on foreigners owning land in Philippines and we quote:

Xxx Further, the distinction made between transfer of ownership as opposed to recovery of funds is a futile exercise on respondent’s part. To allow reimbursement would in effect permit respondent to enjoy the fruits of a property which he is not allowed to own. Thus, it is likewise proscribed by law. Xxx As expressly held in Cheesman v. Intermediate Appellate Court: ¹⁶

Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of the 1973 Constitution ordains that, “Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.” Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly violated the Constitution; the sale as to him was null and void. In any event, he had and has no capacity or personality to question the subsequent sale of the same property by his wife on the theory that in so doing he is merely exercising the prerogative of a husband in respect of conjugal property. To sustain such a theory would permit indirect controversion of the constitutional prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have .xxx

xxxThus, in the instant case, Helmut cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the property despite the constitutional prohibition. xxx (G.R. No. 149615 August 29, 2006IN RE: PETITION FOR SEPARATION OF PROPERTY ELENA BUENAVENTURA MULLER, Petitioner, vs.HELMUT MULLER, Respondent)

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila University College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard.  His private practice included having successfully handled several major cases and being included in the Philippine case books.  Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for  Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected])

CAN A MOTHER LOSE CUSTODY OF HER MINOR CHILD ON GROUNDS OF IMMORALITY?
Benjie an engineer and Anna a full time housewife were living together as husband and wife for about 10 years.  From their union was born their only child Alan.  Sometime in 2007, when Alan was only about two years old, Benjie applied and was accepted as a supervisor in one of the oil and gas companies in Alberta Canada.  Seeing the prospect of a higher paying job with the possibility of being able to migrate to Canada, Benjie readily took the job.
Everything went well for Benjie until he heard disturbing news from his relatives and from his close friends.  According to them, Anna was having illicit relations with another man.  To makes matters worse, the man was often seen staying in their conjugal home and was said to be living off the remittances Benjie was sending to Anna.  Pictures were sent to Benjie as proof of Anna’s infidelity.
Furious, Benjie went home and filed a case of adultery against Anna and likewise petitioned the court for the sole custody of his 4 year old son Alan on the ground that Anna was an unfit mother because of her immorality.

WILL ANNA LOSE CUSTODY OF HER 4 YEAR OLD SON?.
Speaking in the case of Gualberto vs. Gualberto G.R. No. 156254. June 28, 2005 the Philippine Supreme Court held that and we quote:
xxxArticle 213 of the Family Code provides:
ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.(underscoring supplied)
xxx. It should be noted that the Family Code has reverted to the Civil Code provision mandating that a child below seven years should not be separated from the mother xxx
unless
xxxThe mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.xxx
Here, Benjie cites immorality due to alleged immoral relations of Anna as the compelling reason to deprive her of custody of their minor child.  He even submitted a report from a psychologist that their child was greatly disturbed and confused after seeing his mother being embraced and kissed by a man other than his father.
In such instances, the Court may not follow the general rule provided by article 213 of the Family Code and may remove the child from the mother’s custody and we quote the Supreme Court’s decisions in these cases:
xxx It has indeed been held that under certain circumstances, the mother’s immoral conduct may constitute a compelling reason to deprive her of custody.xxx
xxxTo this effect did the Court rule in Unson III v. Navarro, wherein the mother was openly living with her brother-in-law, the child’s uncle. Under that circumstance, the Court deemed it in the nine-year-old child’s best interest to free her ‘from the obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d] placed herself might create in [the child's ] moral and social outlook.
In Espiritu v. CA, the Court took into account psychological and case study reports on the child, whose feelings of insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed, among other things, that the latter was disturbed upon seeing ‘her mother hugging and kissing a bad man who lived in their house and worked for her father.
The Court held that the ‘illicit or immoral activities of the mother had already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral values x x x.

Based on the above decisions of the Supreme Court, Anna may stand to lose custody of her minor child despite the fact that he is below 7 years of age. The “compelling reason” being that there the child’s proper moral and psychological development suffered as a result of her illicit affair with her lover.  Note however that mere infidelity of the wife will result to her losing custody of the child unless it is considered “ a compelling reason” for the Court to disregard the general rule.
(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship. Characters in this article makes no reference to any person whether living or dead and any similarities to any actual incident are merely coincidental unless otherwise stated in the case/s cited)

(About the writer: G. Ferdinand (Ferdie) Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada. After graduating from the Ateneo de Manila College of Law in 1987 and passing the Bar given that year, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and as Chief Legal Counsel of Unibancard. His private practice included having successfully handled several major cases and being included in the Philippine case books. Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & a Commissioner for Oaths in Alberta and is now working on his admission to the Alberta Bar. Ferdie Aguirre may be reached at (403) 6131168 /(403) 4747168 or at [email protected])

CAN A MARRIAGE BE CONSIDERED VALID
EVEN IF THE PERSON SOLEMNIZING THE
MARRIAGE HAS NO AUTHORITY TO DO SO?

Joel and Emy have been dating each other for the last six months, having casually met at a jazz bar in Makati. A few weeks after one thosef dates where they end up having more than a good night kiss, Emy found herself in the “family way”. Since Emy has decided on keeping the baby, Joel had no choice but to agree on the condition that before Emy announces her condition to her family, they would have a “discreet wedding” attended only by two of their closest friends as witnesses. According to Joel, this is the only way that his life can be spared since Emy’s two brothers were known tough guys in their neighbourhood. Emy agreed provided that they will have a church wedding before the child is born.

On the day of the wedding, Emy brought their marriage license and her two closest friends to act as witnesses to a building near Manila City Hall. There they found Joel waiting with a man whom he introduced as a wedding minister. After a brief exchange of vows, Emy, Joel and their witnesses all signed the marriage certificate provided by the minister.

Unknown to Emy and her friends, the “minister” was a fake and cannot perform marriages.

Joel’s plan was to wait for the approval of his work application abroad and leave Emy for good.

That evening, Joel and Emy made her condition known to her family. Using the marriage certificate as a “shield”, the couple only got a tongue lashing from her parents.

Joel subsequently received a call from the employment agency. He was surprised why he was being asked to confirm his marital status as his application does not match the records in the National Statistics Office (NSO).

After conducting some investigation, Joel discovered that one of Emy’s friend who was at their wedding, worked at the Manila City Hall. Apparently she submitted a copy of their marriage certificate to the registry.

Joel immediately went to the NSO and requested that his marital status be changed from married to single. He argued that since the person who performed the marriage was not authorized by law, his marriage to Emy is void.

WAS THERE A VALID MARRIAGE?

It is believed that there is a valid marriage. We quote Article 35(2) of the Family Code:

Chapter 3. Void and Voidable Marriages

Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (underscoring provided)
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.

Since Emy believed in good faith that the solemnizing officer had the authority to do so, her marriage to Joel must be considered as valid.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

(About the writer: Ferdie Aguirre has more than 20 years of combined experience as a legal professional in the Philippines and in Canada.  After graduating from the Ateneo de Manila College of Law, he has held the following positions in the Philippine Corporate world: Asst. Senior Vice President of the Philippine National Bank, Senior Manager of the Law Division of the Metropolitan Bank & Trust Company and Chief Legal Counsel of Unibancard.  As a private legal practitioner, he has successfully handled several major cases one of which was included in the Philippine case books. Ferdie Aguirre was also a professor of Political Science and Business Law before migrating to Ontario Canada in 2005 where worked as a Paralegal. He is presently a Court Agent & Commissioner of Oaths in Alberta and is now working on his admission to the Alberta Bar.  Ferdie Aguirre may be reached at (403) 6131168 /403 4747168 or at [email protected] )

CAN FORMER FILIPINOS OWN LAND (REAL ESTATE) IN THE PHILIPPINES?

Owning a house and lot in our native land is a dream that most of us cherish.  Unfortunately, this has only remained dream to a vast majority of Filipinos who live in poverty in their native land.  Glen and Hilda are one of those that share that vision and for half their lives; they have toiled long and hard in a foreign land to give a better life to their two children.

Now in their late 40’s, Glen and Hilda decided that it is time to start planning for retirement and a big part of that plan is to go home and retire in the Philippines. Their two children already having their own careers to pursue have signified their intention to stay in their adopted country.  After hours of browsing the internet, they found the perfect house in a 700 square meter lot in Tagaytay City.  After contacting the owner and informing him of their intentions, they started inquiring around their circle of friends in the Filipino community on how to they can acquire real property in the Philippines.  One

“advice” that they got was to register the property in the name of any of their Filipino friend or relative who is a resident in the Philippines. The reason behind this “advice” is that since they already naturalized citizens of another country, they now are considered as foreigners under Philippine laws hence cannot anymore own real property in that country.

DID THEY GET THE RIGHT ADVICE?

They obviously got the wrong advice.  Although it is true that foreigners cannot own land in the Philippines (Glenn and Hilda are now considered as foreigners), there are exceptions provided for former Filipinos .  One of these exceptions is provided under Batas Pambansa 185 which provides that Filipinos who become naturalized citizens of a foreign country may still own real property .

We quote Section 2 thereof:

Batas |Pambansa Bilang 185

xxx Section 2. Any natural-born citizen of the Philippines who has lost his Philippine citizenship and who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of one thousand square meters, in the case of urban land, or one hectare in the case of rural land, to be used by him as his residence. In the case of married couples, one of them may avail of the privilege herein granted; Provided, that if both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed .xxx.

It is quite alarming that a lot of overseas Filipinos have registered the properties they acquired with their hard earned money in other people’s names because of the wrong advice of well meaning friends.  Many times this writer have been told by clients of stories of how they lost their properties in the Philippines because their friend or relatives have totally assumed ownership or even sold the properties that were entrusted to them.  Some even lost a great sum of money on account of defective documentation.

Sometimes clients have been advised to just charge the loss to experience since most of the time this writer was approached only AFTER the transaction has been consummated, the property registered in the name of another party and there was already a conflict between the parties.  As discussed by this writer in one of his past articles (PUT IT IN WRITING), the courts will only look at document or title when deciding on contracts involving real properties.   More often than not courts will not go beyond the four corners of the title of the land as this is the best evidence of ownership.

There are other laws that allow foreigners to acquire ownership of real properties in the Philippines and this will be discussed in future articles.

The best ADVICE that one can give or receive before buying or selling property in the Philippines…..

“SEEK PROFESSIONAL LEGAL ADVICE”.

(Legal Disclaimer: This article is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer/client relationship.)

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