SUBSEQUENT REGISTRATION

VOLUNTARY DEALINGS
WITH REGISTERED LAND
 Voluntary v. Involuntary

• A voluntary instrument is a willful act of the registered owner of

the land to be affected by registration, while an involuntary
instrument is one pertaining to a transaction affecting lands in
which the registered owner’s cooperation is not needed and
which transaction may even be done against his will.
(Auto Group v CA GR 157553 Sept 8, 2004)
 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.
• The act of registration shall be the operative act to convey or
affect the land insofar as third persons are concerned xx
•Sec 53. Presentation of Owner’s Duplicate
upon entry of New Certificate
•Need to cancel the certificate

•Sec 54. Dealing less than ownership

•Contract which does not transfer ownership
•Memorandum of encumbrance
Dealings less than ownership, how
registered.

Example :

Mortgage Agreement

Mortgage Agreement

brief memorandum
Sale, Donation and other conveyances
 Formal Details required of voluntary
Instruments (Sec. 55)
• Full name
• Nationality
• Civil status
• If married, the name of spouse
• Residence/postal address
• If corporation or association, qualified to acquire land
 [ Sec. 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. x x x

Entered at Cadlan, Pili, Camarines Sur,

Philippines,
[ Sec. 56 ]``1`1` on the 20th day of July in the year
q1`1q

two thousand eight at 11:01 a.m.

 Section 59. Carry over of encumbrances 

• If, at the time of any transfer, subsisting encumbrances or

annotations appear in the registration book, they shall be carried
over and stated in the new certificate or certificates; except so far
as they may be simultaneously released or discharged.
MORTGAGE & FORECLOSURE

Atty. LEO V. CAINTO

WHAT IS A MORTGAGE?

◻ Mortgage is a contract whereby property is given as

a collateral to secure the performance or fulfillment
of a principal obligation (Art. 295, New Civil Code)
REQUISITES OF A MORTGAGE

◻ 1. Constituted to secure a principal obligation

◻ 2. Mortgagor be the absolute owner
◻ 3. Must have free disposal or legally authorized
◻ 4. Registered to bind third parties
◻ 5. foreclosed property must be sold in a public
auction and may not just be appropriated
Section 61. Registration

◻ Upon presentation for registration of the deed of

mortgage or lease together with the owner's
duplicate, the Register of Deeds shall enter upon
the original of the certificate of title and also upon
the owner's duplicate certificate a memorandum
thereof, the date and time of filing and the file
number assigned to the deed, and shall sign the said
memorandum.
Section 62. Discharge or cancellation

◻ A mortgage or lease on registered land may be

discharge or canceled by means of an instrument
executed by the mortgage or lessee in a form
sufficient in law, which shall be filed with the
Register of Deeds who shall make the appropriate
memorandum upon the certificate of title.
REAL ESTATE MORTGAGE VS CHATTEL
MORTGAGE

REAL ESTATE CHATTEL

MORTGAGE MORTGAGE

COVERAGE REAL PROPERTY OR CHATTEL OR

REAL RIGHTS PERSONAL
PROPERTY

FORMALITY CONSTITUTED BY A MAY BE

PUBLIC INSTRUMENT CONSTITUTED IN A
PRIVATE DOCUMENT

FORECLOSURE RIGHT OF NO RIGHT OF

REDEMPTION IS REDEMPTION
AVAILABLE
REAL ESTATE MORTGAGE VS PACTO DE RETRO
SALE

REAL ESTATE PACTO DE RETRO

MORTGAGE

NATURE ACCESSORY PRINCIPAL AND

CONTRACT INDEPENDENT
CONTRACT

TITLE TITLE IS RETAINED POSSESSION IS

BY THE MORTGAGOR DELIVERED TO THE
VENDEE A RETRO

RIGHT TO MORTGAGEE PURCHASER MAY

APPROPRIATE CANNOT DISPOSE AS SOON AS
APPROPRIATE TO RIGHTS OF
HIMSELF DOMINION ARE
CONSOLIDATED
REAL ESTATE MORTGAGE VS ANTICHRESIS

REAL ESTATE ANTICHRESIS

MORTGAGE

POSSESSION MORTGAGOR CREDITOR TAKES

RETAINS POSSESSION OVER POSSESSION

FRUITS MORTGAGOR CREDITOR COLLECTS

GATHERS FRUITS OF THE FRUITS &
PROPERTY APPLIES VALUE AS
PAYMENT
REALTY TAX RESPONSIBILITY OF CREDITOR
PAYMENT THE MORTGAGOR
VOID STIPULATIONS IN MORTGAGE

◻ PACTUM COMMISSORIUM – a stipulation which

authorizes the mortgagee to APPROPRIATE the property as
his own automatically upon default of the mortgagor.
◻ PACTUM DE NON ALIENDO – a stipulation which
PROHIBITS the mortgagor from ALIENATING or SELLING
the property during the term of the mortgage.
◻ TIPO or UPSET PRICE - A stipulation in the contract fixing a
tipo or upset price at which the property will be sold at the
foreclosure proceeding is null and void.
 FORECLOSURE
◻ Section 63. Foreclosure of Mortgage. (a) If the
mortgage was foreclosed judicially, a certified copy
of the final order of the court confirming the sale
shall be registered with the Register of Deeds. If no
right of redemption exists, the certificate of title of
the mortgagor shall be canceled, and a new
certificate issued in the name of the purchaser.
 Foreclosure
◻ Foreclosure of mortgage is the process by which a
property covered may be subjected to sale to pay
demand for which mortgages stand as security (Pacific
Commercial Co. v. Alvarez, 38 OG 758)

Grounds for foreclosure:

◻ Non-payment of the principal obligation that is due
◻ Non-compliance or violation of any condition of the mortgage
contract
Note: Demand is necessary to make the obligation due and
demandable
◻ Kinds of Foreclosure:
◻ Judicial Foreclosure – Rule 68 Rules of Court

◻ Extrajudicial Foreclosure – Act 3135 as amended

by Act 4118, Sec 63 PD 1529, SC AM
No.99-10-05-0
Example of power of Attorney inserted in the mortgage
contract..

◻ … the Pag-IBIG Fund or its assignee/transferee is hereby appointed

as BORROWER/BORROWER and CO-BORROWER’s
Attorney-in-Fact, with full power of substitution and authority to
perform such acts that may be necessary to dispose of Mortgaged
Property in accordance of the provision of Act. 3135, as amended,
and pending such disposition to perform all other acts of
administration and management …Extrajudicial foreclosure may be
undertaken by the Sheriff, Special Sheriff or by Notary Public, at
the option of Pag-IBIG Fund. The latter hereby reserves its right to
bid at appropriate public auction.
PROCESS OF JUDICIAL FORECLOSURE (JF)

• Mortgagee files complaint or petition for foreclosure

• Where: RTC in the city or province where property is
located
• Hearing to ascertain the amount due to mortgagee

• RTC orders mortgagor to pay amount due

• When: to pay within 90 days - 120 days

• If mortgagor fails to pay, RTC orders the sale of property

• To whom: highest bidder at public auction
FLOW OF JUDICIAL FORECLOSURE

• Mortgagor may exercise equity of redemption

• How: pay the debt within 90 -120 days after the
judgment becomes final, or even after foreclosure sale, but
prior to its confirmation

• Sheriff issues certificate of sale

• RTC issues order confirming the sale

• Purchaser consolidates the ownership in his name

FLOW OF EXTRAJUDICIAL FORECLOSURE
(EJF)

• Mortgagee files petition for extrajudicial foreclosure to

the Executive Judge thru Ex-Officio Sheriff
• Where: RTC which has jurisdiction over the property

• Posting of notice of auction sale

• Where: at least 3 public places of Municipal/City

• Publication of notice of auction sale

• Where: newspaper of general circulation in
city/municipality where property is located
EXTRAJUDICIAL FORECLOSURE (EJF)

• Sheriff or Notary Public to conduct public auction sale

• Where: RTC/Provincial /Municipal/City Hall

• Sheriff or Notary Public to issue certificate of sale to

the highest bidder
• Registration of cert of sale

• 1 year redemption period is given to the mortgagor

• When: To begin after the certificate is registered with
the Register of Deeds
◻ Equity of redemption - the right given to the
mortgagor to redeem the mortgage property from
the order of foreclosure up to, but not after, the
confirmation of the sale. (Anderson v Reyes, 54
Phil 944)
◻ Right of redemption – the period of redemption
shall be at anytime within one (1) year from the
date of registration of the certificate of title. (Rule
39 Sec 28)
PERIOD OF REDEMPTION

◻ Right of redemption 1 year

◻ Equity of redemption 90-120 days
◻ General Banking Act RA 8791
(mortgagor is an individual) 1 year
(mortgagor is a juridical person) 3 months
◻ Rural Bank Act (RA 720)
property is covered by TCT 1year
homestead/agri free patent 2 years
◻ Public Land Act (CA 141) 5 years
Special Laws Governing Ownership

Batas Pambansa Blg. 185

◻ Law allows the former Filipino to be a transferee
of a private land.
◻ Purpose of Acquisition: For residence only.
◻ (Maximum Area:
◻ 1,000 square meters for URBAN land or
◻ 1 hectare for RURAL land
◻ Republic Act 9225
◻ (Citizenship Retention and Re-acquisition Act of 2003)
◻ Dual Citizenship
◻ Sec. 3, RA 9225
xxx natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason of
their naturalization as citizens of a foreign country
are hereby deemed to have re-acquired Philippine
citizenship upon taking the prescribed oath of
allegiance to the Republic.
◻ Thank you