...Deed of Sale vs. Equitable Mortgage Posted on November 11, 2009 by lexposition • Posted in Civil Law • Tagged mortgage, sale • Under the Civil Code, an agreement that, on its face, looks like a sale may be considered an equitable mortgage. Article 1602 of the Civil Code provides: 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. In Rockville Excel International Exim Corporation vs. Spouses Oligario Culla and Bernardita Miranda, G.R. No. 155716, October 2, 2009, the Supreme Court faced the issue of whether a Deed of Absolute Sale is really an absolute sale of real property...
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...SPS. CORNELIO JOEL I. ORDEN and MARIA NYMPHA V. ORDEN, and REGISTER OF DEEDS OF NEGROSORIENTAL, Petitioners, versus SPS. ARTURO AUREA and MELODIA C. AUREA, SPS. ERNESTO P. COBILE and SUSANA M. COBILE, and FRANKLIN M. QUIJANO, Respondents. G.R. No. 172733 August 20, 2008 Fact This case is about the legal consequence when spouses Ernesto P. Cobile and Susana M. Cobile, respondents in a contract to Deed of Absolute Sale selling on parcel of land fail to make a promissory due date. When there is a contact, Deed of Absolute Sale and Joint Affidavit between petitioners Orden and respondents Cobile, respondents Cobile paid the amount of 384,000.00 pesos as a partial payment to petitioners Orden. Moreover, there is an evidence receipt that respondents Cobile paid partial payment. Thus, Orden, petitioners and Cobile respondents make a promissory that respondents Cobile promise to pay petitioners Orden the amount of 566,000.00 pesos on or before October 31, 1994 and the remaining balance will be paid soon as the titles of the properties shall have been transferred to respondents Cobile. However, respondents Cobile fail to pay the amount 566,000.00 pesos due to October 31, 1994 and they paid 354,596.28 as representing a partial payment through Arturo Aurea. Petitioners Orden informed respondents Cobile that if respondents Cobile fail to pay the remaining balances dated March 11, 1995, petitioners Orden will contract other interested investors. Since respondents Cobile did...
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...SUBJECT MATTER OF SALE 1. MELLIZA vs CITY OF ILOILO (23 SCRA 477) Facts: Juliana Melliza during her lifetime owned, among other properties, 3 parcels of residential land in Iloilo City (OCT 3462).Said parcels of land were known as Lots Nos. 2, 5 and 1214. The total area of Lot 1214 was 29,073 sq. m. On 27 November 1931she donated to the then Municipality of Iloilo, 9,000 sq. m. of Lot 1214, to serve as site for the municipal hall. The donation was however revoked by the parties for the reason that the area donated was found inadequate to meet the requirements of the development plan of the municipality, the so-called “Arellano Plan.” Subsequently, Lot 1214 was divided by Certeza Surveying Co., Inc. into Lots 1214-A and 1214-B. And still later, Lot 1214-B was further divided into Lots 1214-B-1, Lot 1214-B-2 and Lot1214-B-3. As approved by the Bureau of Lands, Lot 1214-B-1, with 4,562 sq. m., became known as Lot 1214-B; Lot 1214-B-2,with 6,653 sq. m., was designated as Lot 1214-C; and Lot 1214-B-3, with 4,135 sq. m., became Lot 1214-D. On 15 November1932, Juliana Melliza executed an instrument without any caption providing for the absolute sale involving all of lot 5, 7669 sq.m. of Lot 2 (sublots 2-B and 2-C), and a portion of 10,788 sq. m. of Lot 1214 (sublots 1214-B2 and 1214-B3) in favor of the Municipal Government of Iloilo for the sum of P6,422; these lots and portions being the ones needed by the municipal government for the construction of avenues, parks and City hall...
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...[G. R. No. 127094. February 6, 2002] ALEJANDRIA PINEDA and SPOUSES ADEODATO DUQUE, JR., and EVANGELINE MARY JANE DUQUE, petitioners, vs. COURT OF APPEALS and SPOUSES NELSON BAÑEZ and MERCEDES BAÑEZ, respondents. FACTS: Appellees Nelson Bañez and Mercedes Bañez are the original owners of a parcel of land together with its improvements located at 32 Sarangaya St., White Plains, Quezon City while Ms. Alejandria Pineda is the owner of a house located at 5224 Buchanan St., Los Angeles, California. “On January 11, 1983, the appellees and Alejandria Pineda, together with the latter’s spouse Alfredo Caldona, executed an ‘Agreement to Exchange Real Properties’ . In the agreement, the parties agreed to: 1) exchange their respective properties; 2) Pineda to pay an earnest money in the total amount of $12,000.00 on or before the first week of February 1983; and 3) to consummate the exchange of properties not later than June 1983. It appears that the parties undertook to clear the mortgages over their respective properties. At the time of the execution of the exchange agreement, the White Plains property was mortgaged with the Government Service Insurance System (GSIS) while the California property had a total mortgage obligation of $84,000.00. “In the meantime, the appellees were allowed to occupy or lease to a tenant Pineda’s California property and Pineda was authorized to occupy appellees’ White Plains property . Pursuant to the exchange agreement, Alejandria Pineda paid the appellees...
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...DEED OF DECLARATION THIS DEED OF DECLARATION made on this _________day of____________ TWO THOUSAND FOURTEEN.(2014) A.D. SMT. SANDHYA RANI CHAKRABARTY wife of late Durga Prasad Chakrabarty, by Religion Hindu, by Occupation House Wife, by Nationality Indian, residing at F.C. Salt Lake City, Police Station ______________, Kolkata 700064, District South 24 Parganas, West Bengal, hereinafter called and referred to as the VENDOR/FIRST PARTY (which terms or expression shall unless excluded by or repugnant to the subject or context be deemed to mean and include his/her legal heirs, executors, administrators, legal representatives and assigns) of the ONE PART. AND SMT. SABITRI DEVI wife of Sri. Fulchand Shah, by Religion Hindu, by Occupation House Wife, by Nationality Indian, residing at R 208, Cotton Mill Lane, Police Station Maheshtala, Kolkata 700044, District South 24 Parganas, West Bengal, hereinafter called and referred to as the VENDEE/PURCHASER/OPPOSITE PARTY (which terms or expression shall unless excluded by or repugnant to the subject or context be deemed to mean and include his/her legal heirs, executors, administrators, legal representatives and assigns) of the OTHER PART. WHEREAS the VENDOR/FIRST PARTY mentioned herein above in the “PARTIES TO THE DEED” i.e, SMT. SANDHYA RANI CHAKRABARTY was the sole and absolute owner of the land measuring about 15 Cotthas, 9 Chittacks, 34 Square feet, be the same little...
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...claims. Gaite executed a deed of assignment in favor of a single proprietorship owned by him. For some reasons, Fonacier revoked the agency, which was acceded to by Gaite, subject to certain conditions, one of which being the transfer of ores extracted from the mineral claims for P75,000, of which P10,000 has already been paid upon signing of the agreement and the balance to be paid from the first letter of credit for the first local sale of the iron ores. To secure payment, Fonacier delivered a surety agreement with Larap Mines and some of its stockholders, and another one with Far Eastern Insurance. When the second surety agreement expired with no sale being made on the ores, Gaite demanded the P65,000 balance. Defendants contended that the payment was subject to the condition that the ores will be sold. Issue: (1) Whether the sale is conditional or one with a period (2) Whether there were insufficient tons of ores Held: (1) The shipment or local sale of the iron ore is not a condition precedent (or suspensive) to the payment of the balance of P65,000.00, but was only a suspensive period or term. What characterizes a conditional obligation is the fact that its efficacy or obligatory force (as distinguished from its demandability) is subordinated to the happening of a future and uncertain event; so that if the suspensive condition does not take place, the parties would stand as if the conditional obligation had never existed. A contract of sale is normally commutative and...
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...of interests, called estates, in real property. The type of estate is generally determined by the language of the 5 deed, lease, bill of sale, will, land and grant through which the estate was acquired. Estates are distinguished by the varying property rights that vest in each, and that determine the duration and transferability of the various estates. A party enjoying an estate is called a "tenant." There are several different ways a party can own an interest in real property. There are possessory types of interests and non-possessory types of interests. This lesson explains the main types of real property ownership. Possessory Interests When we talk about ownership interests in real property, we're actually talking about many different types of ownership. Ownership interests come in various forms and, depending on the type of interest, a landowner's rights may be limited. Let's start by exploring some of the possessory interests possible when owning land. A possessory interest is the intent and right of a party to occupy or exercise control over a particular plot of land. This is the type of ownership most of us think about when we think about land ownership. There are three main types of possessory interests: fee simple absolute, life estate, and leasehold. Let's start with the greatest possible interest in land. Fee Simple Absolute A fee simple absolute is an ownership interest that includes all rights in the land. Just as the name suggests, this type of estate...
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...Rights and Duties of Parties Prior to Foreclosure Theories of Mortgages 1) Title Theory of Mortgages: a. Mortgagee holds legal title to land until the debt is satisfied. Equitable title remains in borrower. When mortgage is paid off, lender loses legal title. b. Significance: With legal title, lender has superior claim to the rents over anybody else’s interest that arises later. The lender has the right to take possession upon foreclosure, and doesn’t need ancillary remedies. 2) Lien Theory of Mortgages (restatement) a. Mortgagee retains legal and equitable title to the land when a mortgage is executed. Lender has a lien. The lender has no claim on possession or rents (unless the borrower mortgaged the rents). 3) Intermediate Theory a. Lien theory until default and title theory thereafter. As a practical matter, these states are really title theory states because nothing happens until default anyways in a title theory state. Ancillary Remedies (available to lender before foreclosure) 1) Mortgagee taking possession a. Takes possession & manages property; includes collecting rents & profits b. Lender must use legal process & cannot use self-help, even if so stated in mortgage or contract. c. Not available in lien theory states, unless: i. MR abandons property (public policy) ii. Consent of MR iii. Result of Good faith invalid foreclosure ...
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...This is a 2-hour exam; one essay and 20/25 questions CHECKLIST Do the questions first; then spend the rest of the time on the essay. Things grader looks for: Need a nice IRAC; issue spotting; I. Land Acquisition – TWO or more people fighting over property A. Adverse possession: To constitute adverse possession, there must be actual possession which is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period. Possession for a statutory period of time can ripen into title. 1. Elements: COAH a. Actual Possession: Actual means that the possession must be such that the community would reasonably regard the adverse possessor as the owner; the possessor must show an actual entry that gives exclusive possession of the land and does not have the owner’s permission to be there. The possessor’s subjective state of mind is irrelevant. b. Uninterrupted: Continuity of possession may be established although the land is used regularly for only a certain period each year. It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity. Thus, summer occupancy only of a summer beach home does not destroy the continuity of possession required. c. Open and Notorious: The acts of the adverse possessor are...
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...ATENEO de Manila LAW SCHOOL LAW ON SALES OUTLINE [1] Dean Cesar L. Villanueva First Semester, SY 2011-2012 Atty. Alexander C. Dy Atty. Ray Paolo J. Santiago I. The Nature of Sale A. Definition (Art. 1458) Sale is a contract whereby one of the contracting parties [the seller] obligates himself to transfer the ownership[2] and to deliver the possession, of a determinate thing, and the other party [the buyer] to pay therefor a price certain in money or its equivalent. xCruz v. Fernando, 477 SCRA 173 (2005).[3] 1. Elements of Sale Elements of sale: (a) consent or meeting of the minds; (b) determinate subject matter; and (c) price certain in money or its equivalent. xNavarra v. Planters Dev. Bank, 527 SCRA 562 (2007).[4] Sale being a consensual contract, its essential elements must be proven. xVillanueva v. CA, 267 SCRA 89 (1997). Absence of any essential elements negates a sale xDizon v. CA, 302 SCRA 288 (1999),[5] even when earnest money has been paid. xManila Metal Container Corp. v. PNB, 511 SCRA 444 (2006). But once all elements are proven, a sale’s validity is not affected by a previously executed fictitious deed of sale. xPeñalosa v. Santos, 363 SCRA 545 (2001); and the burden is on the other party to prove otherwise. xHeirs of Ernesto Biona v. CA, 362 SCRA 29 (2001). ...
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...Property Outline 1. Concept of Property a. Res = a thing or object, a piece of property b. 6 theories used to Justify the private property system i. The Economic Theory 1. Private rights arise in property based on external cost factors seeking to maximize societal efficiency ii. The Occupation Theory 2. Occupation or Possession of a thing justifies legal protection iii. The Labor Theory 3. Moral right to ownership or control over things produced from one’s labor iv. The Contract Theory 4. Private property is a result of contracts between individuals and the community v. The Natural Rights Theory 5. “natural law” dictates the recognition of private property vi. The Social Utility Theory 6. The law should promote the maximum fulfillment of human needs and aspirations, and private property is on of those needs c. The Bundle of Rights (D.U.P.E.D) vii. Property consists of the following rights in regards to a “res” or thing 7. Right to Dispose of property (alienate/transfer) 8. Right to Use how you want 9. Right to Possess how you want 10. Right to Exclude others from your property 11. Right to Damages from others who violate your bundle viii. The more of the above rights that one has in regards to a res, the greater the significance of...
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...Supreme Court of the Philippines Batas.org G.R. No. 109125 EN BANC G.R. No. 109125, December 02, 1994 ANG YU ASUNCION, ARTHUR GO AND KEH TIONG, PETITIONERS, VS. THE HON. COURT OF APPEALS AND BUEN REALTY DEVELOPMENT CORPORATION, RESPONDENTS. DECISION VITUG, J.: Assailed, in this petition for review, is the decision of the Court of Appeals, dated 04 December 1991, in CA-G.R. SP No. 26345 setting aside and declaring without force and effect the orders of execution of the trial court, dated 30 August 1991 and 27 September 1991, in Civil Case No. 87-41058. The antecedents are recited in good detail by the appellate court thusly: "On July 29, 1987 a Second Amended Complaint for Specific Performance was filed by Ann Yu Asuncion and Keh Tiong, et al., against Bobby Cu Unjieng, Rose Cu Unjieng and Jose Tan before the Regional Trial Court, Branch 31, Manila in Civil Case No. 87-41058, alleging, among others, that plaintiffs are tenants or lessees of residential and commercial spaces owned by defendants described as Nos. 630-638 Ongpin Street, Binondo, Manila; that they have occupied said spaces since 1935 and have been religiously paying the rental and complying with all the conditions of the lease contract; that on several occasions before October 9, 1986, defendants informed plaintiffs that they are offering to sell the premises and are giving them priority to acquire the same; that during the negotiations, Bobby Cu Unjieng offered a price of P6-million while...
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...Chapter 17 | | respondeat superior | Latin for “let the master respond.” A doctrine under which a principal or an employer is held liable for the wrongful acts committed by agents or employees while acting within the course and scope of their agency or employment. | agency | A relationship between two parties in which one party (the agent) agrees to represent or act for the other (the principal). | apparent authority | Authority that is only apparent, not real. In agency law, a person may be deemed to have had the power to act as an agent for another party if the other party’s manifestations to a third party led the third party to believe that an agency existed when, in fact, it did not. | disclosed principal | A principal whose identity is known to a third party at the time the agent makes a contract with the third party. | e–agent | A computer program that by electronic or other automated means can independently initiate an action or respond to electronic messages or data without review by an individual. | equal dignity rule | In most states, a rule stating that express authority given to an agent must be in writing if the contract to be made on behalf of the principal is required to be in writing. | fiduciary | As a noun, a person having a duty created by his or her undertaking to act primarily for another’s benefit in matters connected with the undertaking. As an adjective, a relationship founded on trust and confidence. | independent contractor...
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...Question | Answer | A break in the chain of title is considered a serious title defect | True | A common owner can waive his or her right to partition | True | A common owner cannot waive his or her right to partition | False | A corporate seller should provide the purchaser with a corporate resolution | True | A deed need not have consideration to be valid | False | A deed that covenants only against the lawful claims of people claiming by, though, or under the grantor is a limited warranty deed | True | A default by a landlord under the lease generally gives the tenant the right to | Sue the landlord for performance | A determination as to whether property is located in a flood hazard zone is made by the title examiner | False | A farm owner who gives a person permission to fish in his lake gives the person | License | A fee simple absolute estate has a potential infinite duration and unrestricted inheritability | True | A fee simple on condition subsequent estate automatically expires on the happening or nonhappening of the event stated in the deed of conveyance or the will creating the estate | False | A fixture is classified as real property | True | A foreign person affidavit is for the benefit of the purchaser | True | A foreign person affidavit is for the benefit of the seller | False | A foreign person affidavit is signed by the purchaser | False | A foreign person affidavit is signed by the seller | True | A hazard waste indemnity found...
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...Provisions Common to Pledge and Mortgage(PM) 2085. Requisites 1. They are created to secure a principal obligation. 2. The pledgor or mortgagor must be the absolute owner of the thing. 3. Persons constituting pledge or mortgage must have a free disposal of thing or have legal authority. Note: Characteristics: 1. Real - perfected by delivery of thing 2. Accessory- can’t stand on its own. It follows principal. 3. Unilateral- obligation of creditor to return thing upon fulfilment of principal obligation. 4. Subsidiary- 2087. When principal obligation becomes due, creditors may ALIENATE the thing. (alienate-foreclosure; not disposal) 2088. Creditors can’t appropriate/dispose/sell thing. Stipulation to contrary is null and void, and this is known as “pactum commissorium.” 2089. Pledge or mortgage is considered indivisible even though debt may be divided. * If debtor’s heir paid part of debt, there is no partial release/extinguishment of pledge or mortgage until it is fully paid. * Creditor’s heir who received his share of debt can’t return the thing or cancel mortgage. * Exception: Partial release of obligation is possible when each of the thing guarantees only a determinate portion of the obligation. 2090. Pledge and mortgage is still indivisible even if obligation is joint or solidary. 2091. PM can secure all kinds of obligations (voidable or unenforceable)(pure or subject to suspensive or resolutory condition) ...
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