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Land Titles and Deeds Notes: Mortgage

1. Mortgage

real right constituted to secure an obligation upon real property or rights therein to satisfy w/ the proceeds of the sale thereof such obligation when the same becomes due and has NOT been paid or fulfilled (Sanchez Roman)
contract by which specific property is hypothecated for the performance of an act, WITHOUT the necessity of a change of possession (Civil Code of California)
a right granted to the creditor over the property of the debtor for the security of his debt, and gives him the power of having the property seized sold in default of payment (Civil Code of Louisiana)
= lien / purpose of security

(NOT) creating a title or estate

can be waived by mortgagee

to collect the principal debt - personal action
mortgage - not personal action

a. Parties

mortgagor - who constitutes the mortgage
mortgagee - whose favor a mortgage is constituted

2. Kinds of Mortgages

a. conventional or voluntary mortgage

created by agreement of the parties

b. legal mortgage

created by operation of law wherein the creditor is given a mortgagee on the property of his debtor, WITHOUT the necessity of the parties actually stipulating for it
required by express provision of law to be executed in favor of certain persons to secure the performance of a principal obligation

EXAMPLES:

claims of laborers engaged in the construction of a building are to be considered as mortgages upon said building by operation of Art. 2243 in relation to Art. 2242 of NCC

c. judicial mortgage

resulting from a judgment

EXAMPLE:

plain deed of sale may be declared to be a mortgage by a competent court

d. equitable mortgage

NOT a mortgage in form but in substance a mere security for a debt or obligation
commonly occurs in pacto de retro sales

3. Laws governing mortgage in general

Contract of Real Estate of Mortgage

Articles 2085 to 2092 of the Civil Code of the Philippines
Articles 2124 to 2131 of the Civil Code of the Philippines

Foreclosure Mortgage

procedure

judicial foreclosures

Rule 68 of the Rules of Court

extrajudicial foreclosure

Act. No. 3135 as amended by Act. No. 4118

Aliens becoming mortgagees

Republic Act 4882 approved June 17, 1967 (Republic Act. No. 133>Republic Act 4381)

4. Essential requisites of mortgage

Art. 2085 of the Civil Code of the Philippines

a. That it be constituted to secure the fulfillment of a principal obligation

b. That the mortgagor be the absolute owner of the thing mortgaged

c. That the person constituting the mortgage has the free disposal of the property, and in the absence

thereof, that he be legally authorized for the purpose

NOTE:

*A 3rd person who is not a debtor or party to the principal obligation may secure the latter by mortgaging by his own property

*must be sold at a public auction and cannot be appropriated by a creditor

Art. 2125 of the Civil Code

d. In order that a mortgage may be validly constituted, that the document in which it appears be registered in the Office of the Registry of Deeds concerned.

Failure to register: limits its binding effect to the parties thereto only (NOT invalidate the mortgage)

Section 51. Conveyance and other dealings by registered owner. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration.

The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies.

Mortgagee in bad faith

ignores a significant fact that would create suspicion in an otherwise reasonable person is not an innocent purchaser for value (DBA v. CA)

EXAMPLES:

aware of adverse claim and notice of lis pendens annotated on the title when it registered the mortgage

Who may constitute a mortgage?

absolute owner of the property

foreclosure sale - transmission only of whatever rights seller had over the thing sold

NO valid real estate mortgage = NO valid foreclosure or valid auction sale

Who is mortgagee is Good Faith?

innocent mortgagee for value

Consent of both parties NOT necessary to registration of mortgage

May be registered by mortgagee alone (even over the objection of the mortgagor)

Rationale: mortgage is a voluntary transaction and CANNOT be permitted to revoke unilaterally (execution = consent NOT the registration)

Once a mortgage has been signed in due form, the mortgage is entitled to its registration as a matter of right

Mortgage cannot be recorded if unregistered land

6. Special characteristics of real mortgage

a. Realty as subject matter

Real property or alienable rights or interests therein (i.e. credits or rights of the mortgagee or encumbrances)

b. Real right

binding against the whole world and may be enforced by real action against all who may have existing rights or interests in the same property, NOT registered prior to the mortgage
Even if personal action on the debt secured has prescribed, a suit to enforce the mortgage may still lie so long as all such debt has NOT been paid

c. Accessory obligation

d. Indivisibility

one and indivisible

e. Inseparability

follows the property to whomever it may be transferred no matter how many times it changes hands as long as the annotation is carried over

f. Retention of Possession

7. When "Pacto de retro" sale = equitable mortgage

where a contract of sale w/ pacto de retro is executed as security for a debt owing by the grantor from the grantee
may be shown by oral evidence
Tests:

Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases:

(1) When the price of a sale with right to repurchase is unusually inadequate;

(2) When the vendor remains in possession as lessee or otherwise;

(3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed;

(4) When the purchaser retains for himself a part of the purchase price;

(5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.

In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise shall be considered as interest which shall be subject to the usury laws.

Art. 1603. In case of doubt, a contract purporting to be a sale with right to repurchase shall be construed as an equitable mortgage.

Mortgage compared to:

Antichresis
Chattel Mortgage

10. Execution and registration of mortgage

Section 60. Mortgage or lease of registered land. Mortgage and leases shall be registered in the manner provided in Section 54 of this Decree. The owner of registered land may mortgage or lease it by executing the deed in a form sufficient in law. Such deed of mortgage or lease and all instruments which assign, extend, discharge or otherwise deal with the mortgage or lease shall be registered, and shall take effect upon the title only from time of registration.

No mortgagee's or lessee's duplicate certificate of title shall hereafter be issued by the Registers of Deeds, and those issued prior to the effectivity of this Decree are hereby deemed canceled and the holders thereof shall immediately surrender the same to the Register of Deeds concerned.

owner of registered land may mortgage the same by executing a mortgage deed, and such deed may be assigned, extended, discharged, released in whole or in part, or otherwise dealt with by the mortgagee by any form of deed or instrument sufficient in law for the purpose

BUT such mortgage deed, and all instruments assigning, extending, discharging and otherwise dealing w/ the mortgage, shall be registered, and shall take effect upon the title only from the time of registration

Section 112. Forms in conveyancing. The Commissioner of Land Registration shall prepare convenient blank forms as may be necessary to help facilitate the proceedings in land registration and shall take charge of the printing of land title forms.

Deeds, conveyances, encumbrances, discharges, powers of attorney and other voluntary instruments, whether affecting registered or unregistered land, executed in accordance with law in the form of public instruments shall be registerable: Provided, that, every such instrument shall be signed by the person or persons executing the same in the presence of at least two witnesses who shall likewise sign thereon, and shall acknowledged to be the free act and deed of the person or persons executing the same before a notary public or other public officer authorized by law to take acknowledgment. Where the instrument so acknowledged consists of two or more pages including the page whereon acknowledgment is written, each page of the copy which is to be registered in the office of the Register of Deeds, or if registration is not contemplated, each page of the copy to be kept by the notary public, except the page where the signatures already appear at the foot of the instrument, shall be signed on the left margin thereof by the person or persons executing the instrument and their witnesses, and all the ages sealed with the notarial seal, and this fact as well as the number of pages shall be stated in the acknowledgment. Where the instrument acknowledged relates to a sale, transfer, mortgage or encumbrance of two or more parcels of land, the number thereof shall likewise be set forth in said acknowledgment.

sufficient when

made substantially in accordance w/ the forms prescribed therein,
signed by the person in accordance w/ the forms prescribed therein, signed by the person or persons executing the same, in the presence of 2 witnesses who shall sign the instrument as witnesses to the execution thereof, shall be acknowledged to be his or their free act and deed before a notary public or other public officer authorized by law to take acknowledge

Land Titles and Deeds Notes: Voluntary Dealings with Registered Lands (pp. 232-278)

CHAPTER V

SUBSEQUENT REGISTRATION

I .VOLUNTARY DEALINGS WITH REGISTERED LANDS

GENERAL PROVISIONS

Section 51. Conveyance and other dealings by registered owner. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration.

Section 52. Constructive notice upon registration. Every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.

Voluntary Dealings vs. Involuntary Dealings

Voluntary Dealings

Need to present title - to record the deed in registry and to make memorandum on title

Entry in day book = NOT sufficient accomplishment of registration

NOT considered accomplished until and unless a memorandum of such document is made on the certificate of title

Rationale: Sec. 52 and Sec. 54 complements each other

Involuntary Dealings

No presentation required; sufficient that annotation in entry book is sufficient

Operative Act (to convey or affect registered lands): registration

Effect of Failure to register: valid and effective between the parties
GR:

Where there is nothing on the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is NOT required to explore further than what the Torrens title upon its face indicates in quest for any hidden defect or inchoate right that may defeat his right thereto (Fule v. Legare [1963])
Even if a decree in a registration proceedings is infected with nullity, still, an innocent purchaser for value relying on a Torrens title issued in pursuance thereof is protected (Cruz v. CA & Suzara [1997])
Although generally a forged or fraudulent deed is a nullity and conveys no title, however, there are instances where such a fraudulent document may become the root of a valid title to an innocent purchaser

Mirror Doctrine: A purchaser CANNOT close his eyes to facts which should put a reasonable man upon his guard and then claim that he acted in GF under the belief that there was no defect in the title of the vendor (Lucena v. CA)

Annotation of right usufruct (right to enjoy fruits) - does NOT impose upon the mortgagee-buyer the obligation to investigate the validity of its mortgagor's title

Example:

where the certificate of title was already transferred from the name of the true owner to the forger and while it remained that way it was sold to an innocent purchaser (Fule v. Legare [1963])

EX: (required to look further than what appears on the face of the title)

Where the purchaser or mortgagee is a banking/financing institution (Dela Merced v. GSIS [2001])
Owner still holds a valid and existing certificate of title covering the same property because the law protects the lawful holder of a registered title over the transfer of a vendor bereft of any transmissible right (Tomas v. Tomas [1980])
Purchaser in bad faith (Egeo v. CA [1989])
Sufficiently strong indications to impel closer inquiry into the location boundaries, and the condition of the lot (Francisco v. CA [1987])
Where a person buys land NOT from the registered owner but from 1 whose rights to the land has been merely annotated on the certificate of title (Quiniano v. CA [1971])
Purchases land w/ a certificate of title containing a notice of lis pendens
Purchaser had full knowledge of flaws and defects in the title (Bernales v. IAC [1988])

Sale of lump sum of land

boundaries (laid down as enclosing the land and indicating its limits) > area

Section 54. Dealings less than ownership, how registered. No new certificate shall be entered or issued pursuant to any instrument which does not divest the ownership or title from the owner or from the transferee of the registered owners. All interests in registered land less than ownership shall be registered by filing with the Register of Deeds the instrument which creates or transfers or claims such interests and by a brief memorandum thereof made by the Register of Deeds upon the certificate of title, and signed by him. A similar memorandum shall also be made on the owner's duplicate. The cancellation or extinguishment of such interests shall be registered in the same manner. (Sec. 54 specifies the manner of registration)

Section 55. Grantee's name, nationality, etc., to be stated. Every deed or other voluntary instrument presented for registration shall contain or have endorsed upon it the full name, nationality, residence and postal address of the grantee or other person acquiring or claiming an interest under such instrument, and every deed shall also state whether the grantee is married or unmarried, and if married, the name in full of the husband or wife. If the grantee is a corporation or association, the instrument must contain a recital to show that such corporation or association is legally qualified to acquire private lands. Any change in the residence or postal address of such person shall be endorsed by the Register of Deeds on the original copy of the corresponding certificate of title, upon receiving a sworn statement of such change. All names and addresses shall also be entered on all certificates.

Notices and processed issued in relation to registered land in pursuance of this Decree may be served upon any person in interest by mailing the same to the addresses given, and shall be binding, whether such person resides within or without the Philippines, but the court may, in its discretion, require further or other notice to be given in any case, if in its opinion the interest of justice so requires.

Formal Requisites of a Deed (Sec. 55)

Full name
Nationality
Place of residence
Postal Address of grantee or other persons acquiring or claiming interest

Importance: notices and processes in relation to registered landare mailed to the addresses of persons showed in the records
Any change in the residence or postal address of such person shall be endorsed by the Register of Deeds on the original copy of the corresponding certificate of title, upon receiving a sworn statement of such change.

Civil Status (married or unmarried, and if married, the name in full of the husband or wife)
Where or not corporation

If corporation, recital to show that such corporation or association is legally qualified to acquire private lands

may be expressed in the deed by means of a statement to the effect that such corp. or assoc. has at least 60% of its capital belonging to Filipinos

Process of registration (can only be altered by legislature)
1. File the instrument creating or transferring interest and certificate of title with Register of Deeds

Owner's duplicate

GR: conclusive authority to register accompanying deed
EX: ordered by the competent court to do so
safeguard against fraud

Registration procured by mans of a forged duplicate cert. or of a forged deed or other instrument = Null and void

In case of loss: notice thereof need be sent to the Register of Deeds as soon as the loss or theft is discovered
NOTE: issuance of the mortgagee's duplicate title has been discontinued

Payment of fees and documentary stamp tax
Evidence of full payment of real estate tax
Document of transfer - 1 copy additional for city/provincial assessor

2. Register of Deeds shall make a memorandum on the certificate of title, signed by him

3. Issue TCT

GR: essential for transfer to purchaser
EX: sale of an unsegregated portion of a parcel of land covered by a cert. of title where subdivision plan of such land showing all the portions or lots into which it has been subdivided, and technical descriptions of each portion or lot have been verified and approved by the Director of Land has NOT been submitted

ROD upon written request of the party concerned, makes only a memorandum of such deed of conveyance on the seller's certificate of title to serve as notice to 3rd parties of the fact that such portion or lot has been sold to the person/s named in the deed

Section 56. Primary Entry Book; fees; certified copies. Each Register of Deeds shall keep a primary entry book in which, upon payment of the entry fee, he shall enter, in the order of their reception, all instruments including copies of writs and processes filed with him relating to registered land. He shall, as a preliminary process in registration, note in such book the date, hour and minute of reception of all instruments, in the order in which they were received. They shall be regarded as registered from the time so noted, and the memorandum of each instrument, when made on the certificate of title to which it refers, shall bear the same date: Provided, that the national government as well as the provincial and city governments shall be exempt from the payment of such fees in advance in order to be entitled to entry and registration.

Every deed or other instrument, whether voluntary or involuntary, so filed with the Register of Deeds shall be numbered and indexed and endorsed with a reference to the proper certificate of title. All records and papers relative to registered land in the office of the Register of Deeds shall be open to the public in the same manner as court records, subject to such reasonable regulations as the Register of Deeds, under the direction of the Commissioner of Land Registration, may prescribe.

All deeds and voluntary instruments shall be presented with their respective copies and shall be attested and sealed by the Register of Deeds, endorsed with the file number, and copies may be delivered to the person presenting them.

Certified copies of all instruments filed and registered may also be obtained from the Register of Deeds upon payment of the prescribed fees.

Register of Deeds to keep a day book (entry book)
Enter in order of reception all deeds & voluntary instruments, write & processes regarding the land - year, month , day , time, minute of reception of instrument;
Fees of 5 php per document t be paid within 15 days

provincial and city governments shall be exempt from the payment of such fees

Note memorandum, sign and issuance of certificate
Documents are numbered, indexed and indorsed w/ reference to cert. of title > public records

subject to reasonable regulation

NOTE: GR: Cost is borne by the vendor

Denial of Registration (appeal within 5 days from receipt of notice) > Administrator of Land Registration Authority (appeal within 15 days from notice and deposit of P300 to the Clerk of CA) > Court of Appeals (appeal by certiorari on questions of law) > Supreme Court

Duties of Register of Deeds - ministerial and mandatory in character

NOT authorized to determine whether or not fraud was committed (court should determine)

Invalidity of contract - NOT valid objection to registration where the ROD finds nothing defective or irregular on its face upon examination

For purpose of merely giving notice, questions regarding effect or invalidity of instruments are expected to be decided after (NOT before) registration.

Sale of lands to aliens

GR: aliens prohibited in acquiring private lands in the Philippines
EX: in cases of hereditary succession

NOTE: prohibition in the consti. was not in effect during Japanese Occupation

Sec. 10 of the Foreign Investments Act (R.A. No. 7042)

“SEC. 10. Other rights of natural-born citizen pursuant to the provisions of Article XII, Section 8 of the Constitution. – Any natural-born citizen 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 five thousand [5,000] square meters in the case of urban land or three [3] hectares in the case of rural land to be used by him for business or other purposes. 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.

“In case the transferee already owns urban or rural land for business or other purposes, he shall be entitled to be a transferee of additional urban or rural land for business or other purposes which when added to those already owned by him shall not exceed the maximum areas herein authorized.

“A transferee under this Act may acquire not more than two [2] lots which should be situated in different municipalities or cities anywhere in the Philippines: Provided, That the total land area thereof shall not exceed five thousand [5,000] square meters in the case of urban land or three [3] hectares in the case of rural land for use by him for business or other purposes. A transferee who has already acquired urban land shall be disqualified form acquiring rural land and vice versa.”

American Landholdings

acquired by Americans prior to July 4,1946 = VALID and cannot be impaired

Simultaneous registration of sales coursed thru alien buyer allowed (opinion of sec. of justice rendered on Jan 24, 1948)
Effect of naturalization of alien buyer - title of the alien = lawful and valid as of the date of its acquisition or transfer to him

BUT: no right to presume his admission to Philippine citizenship upon the expiration of the 2-year prescribed period so he cannot place "Filipino"

False narration of facts in deed of sale or real peoprty = falsification of public document

Acquisition of land w/ money furnished by alien, valid when in GF (NOT for the benefit of the alien)
Registration of alien corp. NOT a prerequisite to owning real property

restricted to the ownership and control of NOT to exceed 1,024 hectares of land

Private Corp. or assoc. as applicants

alienable land of the public domain

GR: only by lease for a period of NOT exceeding 25 yrs and renewable for NOT more than 25 yrs and NOT to exceed 1,000 hectares in area
EX:acquired from precessors-in-interest by exclusive, continuous and adverse possession of the same for more than 30 yrs who acquired ownership of the land

Alien religious corp. disqualified

NOT violative of freedom of religion clause since land tenure is dispensable to the free exercise and enjoyment of religious profession or worship
BUT: Filipino Corp. w/ Alien Administrator = VALID

Land Titles and Deeds Notes: Real Estate Mortgage (11/20)