Saturday, September 04, 2010

What are the Rights of a Foreign National Buying Real Property in the Philippines

What are the rights of a Foreign National who acquired land vs. Filipina Girlfirend in whose name the TCT property deeds were placed under

This is the issue discussed by the Supreme Court in the case of Borromeo vs. Descallar, G.R. No. 159310, February 24, 2009.

The facts as stated in the decision are:

Jambrich, an Austrian arrived in the Philippines in 1983 being assigned in the country and was transferred to Cebu and met and fell in love with a separated Filipina [herein referred to as respondent], with two kids and who had no means of livelihood. Thereafter they bought their house and lots but the Register of Deeds refused registration of the Deed of Absolute Sale on the ground that Jambrich was an alien and could not acquire alienable lands of the public domain and therefore his name was erased and the titles issued in the name of the Filipina.

In 1986, Jambrich sold his rights and interests in the said property to a Filipino buyer, Borromeo, [the petitioner in this case] to pay for his debt but when Borromeo sought to register the deed of assignment, he discovered that the titles to the lots have been transferred in the name of the Filipina and that the same had been mortgaged.

The buyer, Borromeo then filed a complaint for recovery of the properties. The Filipina girlfriend claimed that she bought it with her own funds and that Jambrich being a foreigner was not entitled to own land in the Philippines. The Regional Trial Court rendered a decision in favor of the buyer and declared him to be the owner of the properties since the facts show that the Filipina had no means of livelihood or funds to have bought the property.

The Filipina appealed and the decision was reversed by the Court of Appeals stating that the foreigner, Jambrich, could not have acquired land being a foreigner.

The buyer, Borromeo, appealed by way of petition to the Supreme Court which stated the issues :

Who purchased the subject properties?

What is the effect of registration of the properties in the name of the Filipina?

In upholding the decision of the lower court, the Supreme Court stated:

The evidence presented showed that Jambrich had all the authority to transfer all his rights, interests and participation in the subject properties by virtue of the Deed of Assignment to the buyer, Borromeo, as it was shown that the funds to purchase the properties came from Jambrich, who was therefore the true buyer of the property, and,

“Further, the fact that the disputed properties were acquired during the couple’s cohabitation does not help respondent. The rule that co-ownership applies to a man and a woman living exclusively with each other as husband and wife without the benefit of marriage, but are otherwise capacitated to marry each other does not apply. In the instant case, the respondent was still legally married to another when she and Jambrich lived together. In such adulterous relationship, no co-ownership exists between the parties. It is necessary for each of the partners to prove his or her actual contribution in the acquisition of property in order to be able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution does not apply.”

As to the registration of the properties in the name of the Filipina, the Supreme Court said,

“It is settled that registration is not a mode of acquiring ownership. It is only a means of confirming the fact of its existence with notice to the world at large. Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property x x x x x x This is the situation in the instant case. Respondent did not contribute a single centavo in the acquisition of the properties. She had no income of her own at that time, nor did she have any savings. She and her two sons were then fully supported by Jambrich.”

As to the capacity of Jambrich, being an alien, to acquire land, the Supreme Court said,

‘ xxxx the transfer of land xxx to Jambrich, who is an Austrian, would have been declared invalid if challenged, had not Jambrich conveyed the properties to petitioner who is a Filipino citizen. xxxxxx

The rationale behind the Court’s ruling in United Church Board for World Ministries, as reiterated in subsequent cases, is this – since the ban on aliens is intended to preserve the nation’s land for future generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization or those transfers made by aliens to Filipino citizens. As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there would be no more public policy to be protected. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved.”

Philippine Property Ownership Laws. Foreign Nationals beware of buying land

Foreign Nationals can only own Philippine Real Estate through the purchase of Condominium Units or Townhouses constituted under the Condominium principle with Condominium Certificates of Title

In the Philippines, Foreign Nationals can only buy condominium units under Republic Act 4726, otherwise known as the Condominium Act. The law provides that no condominium unit can be sold without at the same time selling the corresponding amount of rights, shares or other interests in the condominium management body (The Condominium Corporation), and no one can buy shares in a condominium corporation without at the same time buying a condominium unit. Now the Condominium Act of the Philippines, R.A. 4726, expressly allows foreigners to acquire condominium units and shares in condominium corporations up to not more than 40 % of the total and outstanding capital stock of a Filipino owned or controlled corporation.

• Right To Own Philippine Real Property

Under the pertinent provisions of the Philippine Constitution only Filipino citizens and corporations or partnerships at least 60% Philippine owned are entitled to acquire LAND in the Philippines. As an exception to this rule, foreign acquisition of Philippine real estate is allowed in the following cases. Acquisition before the 1935 constitution. Acquisition thru hereditary succession if the foreign national is a legal heir. Purchase of not more than 40% interest as a whole in a condominium project. Purchase by a former natural born Filipino citizen subject to the limitations prescribed by law. A Filipino who is married to an alien retains their Philippine citizenship, unless by their act or omission they are deemed to have renounced their Philippine citizenship. [Please see notes on the Philippine Dual Citizenship Law].

• Foreign Ownership as a Philippine Corporation

Another way for foreign nationals to invest in Philippine real estate is for the foreign national or foreign corporation to create a Philippine corporation to hold title. This allows the Philippine corporation of a foreign national or foreign corporation less investment risk and more control of their Philippine real estate investment, and other Philippine investment assets. Foreign nationals and corporations may 100% own a Philippine condominium or town home.

For private land, residential home with land lot and or commercial building with land lot ownership the foreign national and or corporation forms a Philippine Corporation to take ownership of the property. On paper, a Philippine Corporation by Philippine law will be a maximum of 40% foreign owned, and a minimum of 60% Filipino owned with a minimum of five incorporators. The Philippine corporation by law shall have a main bank account tied to it before and upon incorporation. A foreign national may be the sole person on the Philippine corporation bank account once after the Philippine corporation has been created and power of attorney has been handed over to the foreign investor at the time of incorporation. Thus allowing the foreign national total control over the funds derived and paid out from the Philippine Corporation and from the income or sale of the asset or real estate property.

• New Dual Citizenship Laws Affecting Property Ownership

Dual citizenship is now newly available under Philippine Law. Dual citizenship means having two citizenships and passports from two different countries. Former Philippine citizens born in the Philippines, but that have immigrated to another country and obtained citizenship of that country. A foreign spouse married to a Philippine citizen. Dual citizenship allows the citizenship holder full rights of possession of Philippine real estate property.

* Philippine's Embraces Dual Citizenship [September 19, 2003]

In a landmark bill, the Philippine Government enacted Citizenship Retention and Reacquisition Act. With this act, the decades-old ban on dual Philippine citizenship was thrown away. The Philippine Congress recognized that in today's world, Filipinos have dispersed around the world and have even taken on the nationality of their new home countries while maintaining their strong ties to the Filipino community, heritage and families.

Unfortunately, prior to this act, a Filipino who naturalized in another country, such as the U.S. lost Filipino citizenship. The Philippine Congress recognized that this seriously affected the unity of Filipinos overseas with those in the Philippines. It also had drastic consequences with prior Filipinos losing interest in investing in the Philippines.

The new act allows all prior Filipinos who lost their Philippine citizenship because they became citizens of another country to regain Philippine citizenship. It also allows Filipinos who want to naturalize in another country, like the United States for example, to keep their Philippine citizenship. Reacquiring and retaining citizenship allows dual national Filipinos to vote and run for elected office.

The children of Filipinos who reacquire citizenship are also affected. Those unmarried children, under the age of 18 will also be considered to be citizens of the Philippines. This includes legitimate, adopted, and illegitimate children.

The reacquisition of Philippine citizenship is not automatic. Filipinos who lost Philippine citizenship when they became citizens of anther country must swear an oath of allegiance. The oath is found in the text of the act, and in the coming months the Philippine Department of Justice will provide rules on the administration of the oath. One can envision that former Filipinos overseas need appear at their local Consulate to take oath and apply for Philippine passport.

The new act accepts back, with open arms, Filipinos who lost their citizenship. It embraces dual citizenship and recognizes that in today's day and age dual citizenship is a desirable factor for Filipinos who maintain their allegiance to their homeland.

• Foreigner Married to a Philippine Citizen

If holding title as an individual, a typical situation would be that a foreigner married to a Philippine citizen would hold title in the Philippine spouses name. The foreign spouse name cannot be on the property Title but can be on the contract to buy the property. As a foreign investor caution should be taken upon considering taking title to real estate in this manner.

• Condominium Residential Commercial Development Ownership Law

Presidential Decree No. 957, which regulates the sale of subdivision and condominium developments. The National Housing Authority has exclusive jurisdiction to regulate real estate trade and business, a function, which is presently exercised by the Housing and Land Use Regulatory Board (HLURB). Certain conditions are required before a license to sell condominium development units and or subdivision development lots and homes is issued to a Filipino or Foreign owned individual or corporation. The requirements include a certificate of registration, a performance bond, and an approval of the building plans and specifications.

Hereunder is a copy of the Supreme Court ruling and current jurisprudence relative to a Foreign National illegally claiming ownership of the land in the Philippines.


- versus -
August 29, 2006
x ----------------------- x



This petition for review on certiorari[1] assails the February 26, 2001 Decision[2] of the Court of Appeals in CA-G.R. CV No. 59321 affirming with modification the August 12, 1996 Decision 3] of the Regional Trial Court of Quezon City, Branch 86 in Civil Case No. Q-94-21862, which terminated the regime of absolute community of property between petitioner and respondent, as well as the Resolution[4] dated August 13, 2001 denying the motion for reconsideration.

The facts are as follows:

Petitioner Elena Buenaventura Muller and respondent Helmut Muller were married in Hamburg, Germany on September 22, 1989. The couple resided in Germany at a house owned by respondent's parents but decided to move and reside permanently in the Philippines in 1992. By this time, respondent 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.

Due to incompatibilities and respondent's alleged womanizing, drinking, and maltreatment, the spouses eventually separated. On September 26, 1994, respondent filed a petition[6] for separation of properties before the Regional Trial Court of Quezon City.

On August 12, 1996, the trial court rendered a decision which terminated the regime of absolute community of property between the petitioner and respondent. It also decreed the separation of properties between them and ordered the equal partition of personal properties located within the country, excluding those acquired by gratuitous title during the marriage. With regard to the Antipolo property, the court held that it was acquired using paraphernal funds of the respondent. However, it ruled that respondent cannot recover his funds because the property was purchased in violation of Section 7, Article XII of the Constitution. Thus –

However, pursuant to Article 92 of the Family Code, properties acquired by gratuitous title by either spouse during the marriage shall be excluded from the community property. The real property, therefore, inherited by petitioner in Germany is excluded from the absolute community of property of the herein spouses. Necessarily, the proceeds of the sale of said real property as well as the personal properties purchased thereby, belong exclusively to the petitioner. However, the part of that inheritance used by the petitioner for acquiring the house and lot in this country cannot be recovered by the petitioner, its acquisition being a violation of Section 7, Article XII of the Constitution which provides that "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." The law will leave the parties in the situation where they are in without prejudice to a voluntary partition by the parties of the said real property. x x x

x x x x

As regards the property covered by Transfer Certificate of Title No. 219438 of the Registry of Deeds of Marikina, Metro Manila, situated in Antipolo, Rizal and the improvements thereon, the Court shall not make any pronouncement on constitutional grounds.[7]

Respondent appealed to the Court of Appeals which rendered the assailed decision modifying the trial court's Decision. It held that respondent merely prayed for reimbursement for the purchase of the Antipolo property, and not acquisition or transfer of ownership to him. It also considered petitioner's ownership over the property in trust for the respondent. As regards the house, the Court of Appeals ruled that there is nothing in the Constitution which prohibits respondent from acquiring the same. The dispositive portion of the assailed decision reads:

WHEREFORE, in view of the foregoing, the Decision of the lower court dated August 12, 1996 is hereby MODIFIED. Respondent Elena Buenaventura Muller is hereby ordered to REIMBURSE the petitioner the amount of P528,000.00 for the acquisition of the land and the amount of P2,300,000.00 for the construction of the house situated in Antipolo, Rizal, deducting there from the amount respondent spent for the preservation, maintenance and development of the aforesaid real property including the depreciation cost of the house or in the alternative to SELL the house and lot in the event respondent does not have the means to reimburse the petitioner out of her own money and from the proceeds thereof, reimburse the petitioner of the cost of the land and the house deducting the expenses for its maintenance and preservation spent by the respondent. Should there be profit, the same shall be divided in proportion to the equity each has over the property. The case is REMANDED to the lower court for reception of evidence as to the amount claimed by the respondents for the preservation and maintenance of the property.


Hence, the instant petition for review raising the following issues:





Petitioner contends that respondent, being an alien, is disqualified to own private lands in the Philippines; that respondent was aware of the constitutional prohibition but circumvented the same; and that respondent's purpose for filing an action for separation of property is to obtain exclusive possession, control and disposition of the Antipolo property.

Respondent claims that he is not praying for transfer of ownership of the Antipolo property but merely reimbursement; that the funds paid by him for the said property were in consideration of his marriage to petitioner; that the funds were given to petitioner in trust; and that equity demands that respondent should be reimbursed of his personal funds.

The issue for resolution is whether respondent is entitled to reimbursement of the funds used for the acquisition of the Antipolo property.

The petition has merit.

Section 7, Article XII of the 1987 Constitution states:

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.

Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public domain. Hence, they are also disqualified from acquiring private lands.[9] The primary purpose of the constitutional provision is the conservation of the national patrimony. In the case of Krivenko v. Register of Deeds,[10] the Court held:

Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of public agricultural land, shall not be alienated," and with respect to public agricultural lands, their alienation is limited to Filipino citizens. But this constitutional purpose conserving agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to prevent this result that section 5 is included in Article XIII, and it reads as follows:

"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining avenue through which agricultural resources may leak into aliens' hands. It would certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all, they may be freely so alienated upon their becoming private agricultural lands in the hands of Filipino citizens. x x x

x x x x

If the term "private agricultural lands" is to be construed as not including residential lots or lands not strictly agricultural, the result would be that "aliens may freely acquire and possess not only residential lots and houses for themselves but entire subdivisions, and whole towns and cities," and that "they may validly buy and hold in their names lands of any area for building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes that are not, in appellant's words, strictly agricultural." (Solicitor General's Brief, p. 6.) That this is obnoxious to the conservative spirit of the Constitution is beyond question.

Respondent was aware of the constitutional prohibition and expressly admitted his knowledge thereof to this Court.[11] He declared that he had the Antipolo property titled in the name of petitioner because of the said prohibition.[12] His attempt at subsequently asserting or claiming a right on the said property cannot be sustained.

The Court of Appeals erred in holding that an implied trust was created and resulted by operation of law in view of petitioner's marriage to respondent. Save for the exception provided in cases of hereditary succession, respondent's disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of the fraud. [13] To hold otherwise would allow circumvention of the constitutional prohibition.

Invoking the principle that a court is not only a court of law but also a court of equity, is likewise misplaced. It has been held that equity as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be done directly.[14] He who seeks equity must do equity, and he who comes into equity must come with clean hands. The latter is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue.[15]

Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the property despite the constitutional prohibition.

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. 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.

As already observed, the finding that his wife had used her own money to purchase the property cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out to militate, on high constitutional grounds, against his recovering and holding the property so acquired, or any part thereof. And whether in such an event, he may recover from his wife any share of the money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal funds is not now inquired into; that would be, in the premises, a purely academic exercise. (Emphasis added)

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Decision dated February 26, 2001 of the Court of Appeals in CA-G.R. CV No. 59321 ordering petitioner Elena Buenaventura Muller to reimburse respondent Helmut Muller the amount of P528,000 for the acquisition of the land and the amount of P2,300,000 for the construction of the house in Antipolo City, and the Resolution dated August 13, 2001 denying reconsideration thereof, are REVERSED and SET ASIDE. The August 12, 1996 Decision of the Regional Trial Court of Quezon City, Branch 86 in Civil Case No. Q-94-21862 terminating the regime of absolute community between the petitioner and respondent, decreeing a separation of property between them and ordering the partition of the personal properties located in the Philippines equally, is REINSTATED.


[1] Rollo, pp. 31-50.
[2] Id. at 8-13. Penned by Associate Justice Juan Q. Enriquez, Jr. and concurred in by Associate Justices Ruben T. Reyes and Presbitero J. Velasco, Jr. (who is now a Member of this Court).
[3] Id. at 98-101. Penned by Judge Teodoro A. Bay.
[4] Id. at 22.
[5] Id. at 58.
[6] Id. at 52-57.
[7] Id. at 100-101.
[8] Id. at 12.
[9] Ong Ching Po v. Court of Appeals, G.R. Nos. 113472-73, December 20, 1994, 239 SCRA 341, 346.
[10] 79 Phil. 461, 473, 476 (1947).
[11] Rollo, p. 114.
[12] TSN, April 18, 1995, p. 12.
[13] Morales v. Court of Appeals, G.R. No. 117228, June 19, 1997, 274 SCRA 282, 299.
[14] Frenzel v. Catito, 453 Phil. 885, 905 (2003).
[15] University of the Philippines v. Catungal, Jr., 338 Phil. 728, 743-744 (1997).
[16] G.R. No. 74833, January 21, 1991, 193 SCRA 93, 103-104.

For further information please do not hesitate to contact the undersigned.

Beth Collingz
Director - PLC International Marketing Networks
Pacific Concord Properties, Inc., Head Office Manila
Shaw Boulevard Corner Samat St.,
Mandaluyong City. Metro Manila
Philippines 1552.
Tel: [63-2] 717 1958 [Direct Line]
Cell phone: [63] 916-568-3537

Pacific Concord Properties, Inc., Cebu Office
Lapu-Lapu City. Mactan. Cebu
Tel: [63-32] 340 0721 [Direct Line]
Web: [Condotel Forum]
Web: [Condotel Investments]

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