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Sunday, July 01, 2007

 

BUYING OR LEASING REAL PROPERTY

BUYING OR LEASING REAL PROPERTY

Ownership of real property

Buying real property (land, building, house, condominium unit, town houses, warehouse, etc.) is a major financial undertaking and buyers/investors should proceed with extreme caution. As a general rule, foreigners are restricted from ownership of land. However, a corporation , which is 40 percent owned by foreigners and 60 percent by Filipino citizens is considered a Philippine national and is therefore allowed to acquire land.

Foreigners re allowed to acquire condominium units and any improvements constructed on the land. However, one disadvantage of course of this limitation is that without ownership of the land, a businessman can hardly obtain loans or financing from the local banks. Banks, in general, will lend money only with real property for security. The restriction on land ownership has long been the subject6 of debate and is the single most important factor that restricts the flow of investment in the country. Liberalization of investment is expected to continue with the Philippines being integrated slowly to the global economy. With this, we expect that the land ownership, eventually will be opened to foreigners.

The restriction on land ownership has long been the subject6 of debate and is the single most important factor that restricts the flow of investment in the country. Liberalization of investment is expected to continue with the Philippines being integrated slowly to the global economy. With this, we expect that the land ownership, eventually will be opened to foreigners.



Registered or Titled Land vs. Unregistered Land.

The presumption is all lands belong to the State (under the Regalian legal doctrine). Subsequently, certain parcels of land are declared and classified as alienable and disposable. Then occupants of said land can proceed by applying for titles on the land under various modes 9judicial or administrative). A successful applicant is then issued an Original Torrens Title (OCTs) putting said land under the Torrens system. Subsequent buyers of the land are issued Torrens Certificate of Title (TCTs).

The Torrens Certificate of Title is designed to protect buyers of land in good faith against adverse claimants. Once registered, it is notice to the whole world of the person's ownership.

If an alienable or disposable land is not yet registered under Torrens system, then it is considered as unregistered. Ownership is not yet perfected as the state or other private claimants can still object to the titling of the land. Ownership claims on unregistered lands, oftentimes are evidenced by tax declarations. Certain types of land, such as those forming part of marine waters, forest, military reservations, etc. cannot be alienated, hence, cannot be titled to private persons. For safety reasons, buyers must deal, as much as possible with lands that are covered by TCTs or those registered. The risk of legal claims and conflicts are greater when acquiring an unregistered land.



Buying Tips

1. Assistance of a Real Estate Lawyer:

For peace of mind, hiring an experienced lawyer can take most of the worry out of the proposed transaction. If the proposed deal involves a huge amount of money, then the lawyer's assistance may be necessity. Not just an ordinary attorney, but a lawyer, who specialized in real estate transaction should be hired right from the start of serious negotiations. The seller's attorney prepares almost all contracts of sale and their provisions are intended to protect the seller's interest. The buyer's attorney should be able to balance the situation and protect his client's interest in the deal. Land cases may involve 5 to 20 years or even more, for court to resolve. Legal remedies in court may not provide adequate relief for grievances. The involvement of an experienced lawyer in a land deal will greatly minimize legal conflicts, which are very costly.

2. Investigate the Title and Ownership

Fake titles abound in many parts of the country. Although the Philippines has adopted the Torrens system of title, unscrupulous individuals or criminal syndicates are out to tinker with the system. With a fake title on hand, possessors or even squatters are entitled to be heard in court (which could be protracted). This is principal reason why the title or ownership must be investigated for possible aw or claims. There could be liens or charges against the properties, which should be cleared prior to acquisition.

3. Inspect the Land, Building or Site

There could be illegal occupants or squatters possessing the property. Ejecting them is not an easy task, especially so that they can only be ejected after due process of the law. There is also the Lina Law, which prohibits ejecting squatters without giving them land in another place for settlement. A thorough inspection may disclose claims from joining owners, boundary disputes, such as if present, buyers can ask the owner or seller to resolve the disputes prior to acquisition. The area you intend to buy may be landlocked, meaning there is no right of way. A geodetic engineer may be asked to assist if the technical description in the title corresponds to the land or site identified by seller to the buyer. The use of substandard construction materials is prevalent.

Buyers of finished houses and buildings are cheated when developers or contractors used substandard materials like reinforcing steel bars, hollow blocks, untreated lumber, low quality fixtures, and undersized electrical wirings. Finished structures should be inspected carefully. The buyer, by visiting the site, can at least determine the quality of neighborhood. Criminality such as petty theft, robberies, and drug-related crimes abound in places proximate to depressed areas. The availability of utility services such as telephone, water and electricity must be evaluated. Environment problems such as flooding during rainy season (not only on the site but in the road system leading to the site), threat of erosions and mudslides must be approximated. Traffic problems in the vicinity and accessibility to churches, market, malls and other establishment must be considered.



4. Determine Market Value and Taxes

Are you buying the property for your money's worth? Unscrupulous real estate brokers can unnecessarily jack up the price of a property by paying themselves hefty commissions. Be careful in dealing with real estate brokers. If in doubts, ask for the real value of the property, then hiring the services of the reputable and independent appraisal company is advisable. An appraisal company charges fees commencing from USD 100 up depending on several factors surrounding the property.

Unpaid real property taxes, capital gains tax, documentary stamp tax, registration fees, transfer taxes must be paid before ownership or title can be transferred. You can have preliminary calculations of these amounts (depending on the sales value, market value or zonal value of the property) and consider the same negotiating for the final consideration of selling price.



5. Be careful of investing in Undeveloped Properties

In pre-selling scams, developers entice investors with discounted prices and promises of huge profits through the purchase and sale of real estate properties. Developers of real estate dealers use prominent politicians and personalities, deceiving advertisements as tools to attract buyers. The developer goes bankrupt (as the land foreclosed by a creditor bank) and abandons the project, leaving the purchaser to lose his entire investment. In pre-selling or subdivision projects, the precise title number or technical description is unknown to the buyer, allowing opportunities for real estate fraud. In the multiple sales scheme, one lot is sold to several buyers and hope that they may not be able to keep up with the installment and developer rescinds the contract and forfeits the payments already made.

An installment buyer, who has fully paid his property would find later that another persons has the registered title over it. The Housing and Land Use Regulatory Board (HLURB) has exclusive jurisdiction over real estate developers. However, even if a projects has a Permit to Develop or Permit to Sell issued by government, the same does not guarantee that the developer can finish the project or keep up to his promises. One must select a reputable, honest, and legitimate developer or builder.



6. Beware of the fine prints in real estate contracts

The buyer can disagree with escalation clauses, which allows the seller to increase prices in case of extraordinary inflation, peso devaluation, etc. There are grossly disadvantageous provisions such as forfeiture of installment payments, exorbitant interest and penalties. The buyer must not be fooled in accepting these conditions.



Real Property Mortgage

A Buyer or real property may need financing to acquire the same. He may therefore enter into a loan agreement with a bank or lender constituting a mortgage over the property to secure the payment of the principal obligation. If the loan is not paid in accordance with the agreement, the lender may foreclose the property by selling it in a public auction in various modes provided by law (judicial or extra-judicial). The proceeds of sale is applied to the loan and the excess if any is returned to the property owner.

Funds from 50 percent to 80 percent of the real property value may be loaned. Type of properties, usage and location are some of the factors that determine its loan value. Bargain for the interest rates and period to fit the buyer's paying capacity. Documents need when borrowing from financial institutions include:

Torrens Certificate of Tittle or Condominium Certificate of Title, Tax Declaration, Location and Vicinity Map, Real Property Tax Clearance and others.



Leasing Properties

Lease of land is contract by which a person (owner) temporarily grants the use or enjoyment of certain property to another who undertakes to pay rent or price therefore. Again, if the proposed deal involves a huge sum of money, then the lawyer's assistance may be necessity. This is so especially if the lessor intends to introduce substantial improvements or building in the leased land. The investor does not want to be kicked out of the property prior to the termination of the lease without justifiable grounds. A long-term lease contract must be subject to review by a competent lawyer. As a general rule, if the lessor is a Filipino corporation or citizen, the maximum period of leased allowed is 99 years (Art. 1643, Civil Code of the Philippines).

Long-term leases of properties (more than one year) must be annotated as a lien or encumbrance in the Torrens Certificate of Title of the owner to be valid against third parties. In case ownership of land is transferred to another person during the lifetime of the lease, the new owner has to respect the lease terms and conditions. Long-Term Lease for Specific Approved Investment or Business by Foreigners, republic Act No. 7652 (Investors' Lease Act) allows foreign investors to lease private lands in the Philippines for maximum of 75 years. Under tis law, any foreign investor infusing capital into the country can lease private lands, in observance of the Philippine laws and the following:

1. Lease contract shall be for 50 years renewable only once for another 25 years.

2. Leased area will be used solely for investment upon mutual agreements of the parties; and

3. The leased premises such area as may reasonably be required for the purpose of the investment subject to compliance with the Comprehensive Agrarian Reform Law and the Local Government Code.

from "Discover Philippines"

DUAL CITIZENSHIP AND OTHER CONCERNS OF FOREIGN-BASED FILIPINOS

1. Are you a Filipino migrant who has lost Philippine Citizenship and now wants to regain your status and privileges as a Filipino?

The newly-enacted Republic Act No. 9225 dated August 29, 2003 now allows you to become a “dual citizen” that will regain for you your status as a Filipino and allow you to enjoy all the rights and privileges as such.



2. Can one be a Filipino and a foreign citizen at the same time?

Yes. Under Republic Act. no. 9225 or the “Citizenship Retention and Reacquisition act. Of 2003”, natural-born Filipinos who are naturalized citizens of a foreign country before the effectivity of this law may re-acquire their Filipino citizenship by taking their oath of allegiance to the Republic of the Philippines.

Those who after effectivity of this law become naturalized citizens of a foreign country may retain their Filipino citizenship by taking their oath of allegiance to the Republic.

This new law amended a 65-year old law – Commonwealth Act. No. 63- that divest from naturalization as foreign citizens. Thus, under the old law, many Filipinos have been automatically stripped of their Filipino citizenship by the mere act of having obtained citizenship in another State, without regard to the reasons that compelled them to acquire foreign citizenship.

The new law corrects this problem by recognizing dual citizenship and allowing a Filipino to re-acquire or retain Philippine citizenship even after his naturalization in a foreign country.



3. What benefits will I obtain from re-acquiring or retaining my Filipino citizenship?

Once you have re-acquired or retain your Filipino citizenship, you will be able to fully enjoy all civil and political rights and privileges just like any other Filipino such as ownership of real estate properties in the country, being able to engage in certain areas of business that are reserved for Filipino citizens or Filipino-owned corporations ( public utility, media, advertising, educational institutions, transportation, telecommunications), right to practice your profession (provided that the necessary license or permit is obtained from the proper authorities), and right to vote and seek an elective or appointive office in the government.



4. Will my foreign citizenship be adversely affected if I apply for dual citizenship?

If you are naturalized citizen of a country that recognizes dual citizenship, your re-acquiring of your Filipino citizenship will not divest you of your foreign citizenship. Many countries allow dual citizenship. Aside from Philippines, around 89 other countries allow their citizens to hold dual citizenship such as USA, UK, Canada, France, Switzerland, Germany, Ireland, Russia, New Zealand, Taiwan, Vietnam, Israel, Cuba, and 14 out of 17 Latin American nations.



5. If I become a dual citizen, do I need to pay tax to the Philippine government?

No. The Tax Reform Act of 1997 exempts Filipino citizens residing abroad from paying taxes for income earned outside the Philippines. This amends the old tax law that required Filipinos to pay taxes for income earned in and out of the Philippines. Thus, your re-acquiring of your Filipino citizenship will not result in your paying of taxes to the Philippine government for income that you earn in a foreign country.



6. What steps will i take to re-acquire or retain my Filipino citizenship?

It depends on where you are presently based in the Philippines or Abroad. If you are a former natural-born Filipino who is already in the Philippines, you should file a petition under oath with the Bureau of Immigration (BIR) for the issuance of an Identification Certificate under R.A. No. 9225 and the cancellation of your Alien Certificate of Registration if you are registered alien in the BI. If you are based abroad, you will file the petition at the nearest Philippine Consulate for evaluation.

Upon a finding of Consulate that your petition complies with all the requirements, it shall issue an order of Approval which shall be transmitted to the Philippines as a pre-requisite for the issuance by the BI of you Identification Certificate under R.A. No. 9225. In either case, whether you are based in the Philippines or abroad, the final act that confers Philippine citizenship is the issuance by the Bureau of Immigration of your Identification Certificate under R.A. No. 9225.

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