PROPERTY OF MOTHER WHO IS STILL LIVING CANT BE SOLD BY HER CHILDREN

Dear PAO,
My parents are not married. Through the years. my mother was able to purchase a small lot in Tagaytay,
the title of which appears under her name. My brother and I are thinking of selling it. What do we need
in case we want to pursue the sale of that lot?
Panqui

Dear Panqui,
You did not mention whether your mother is still living. To address your concerns adequately, allow us
to qualify our answer. If your mother is still living, then the right to sell the small lot in Tagaytay rests
only upon her being, as you have mentioned in your letter, the owner thereof. This is in accordance with
Article 428 of the New Civil Code of the Philippines, wherein it is clearly provided that it is the owner of
the property who possesses the right to enjoy and dispose of the thing he owns, without other
limitations than those established by law.

Nevertheless, your mother may empower you and/or your brother to sell the property in her behalf
through a contract of agency. Under this contract, a person, commonly known as an agent, binds himself
to render some service or to do something in representation or on behalf of another, with the consent
or authority of the latter. (Article 1868, Id.)

Corollary, if your mother is willing to sell the subject property as well as to constitute you and/or your
brother as her agent/s, then it is essential for her to execute a Special Power of Attorney or SPA in order
for you and/or your brother to validly represent her in such transaction. This is in consonance with
Article 1878 of the New Civil Code of the Philippines which provides, Special powers of attorney are
necessary in the following cases: x x x (5) To enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously or for valuable consideration; x x x

On the other hand, if your mother has already passed away, you and your brother as well as the other
heirs of your mother, if there still be any, must first settle her estate in order to vest full ownership
under you and your brothers name and, eventually, enable the two of you to transact said property,
such as in a contract of sale. This may be done through an extrajudicial settlement of estate provided
that your mother left no will and no debt, and her heirs are all of age, or the minors are represented by

their judicial or legal representatives duly authorized for the purpose. Accordingly, a public instrument
reflecting the settlement in favor of you and your brother must be executed and filed before the office
of the register of deeds of the place where your mother last resided (Section 1, Rule 74, Rules of Court).
Such settlement shall be published in a newspaper of general circulation once a week for three
consecutive weeks. No extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof. (Section 1 in relation to Section 2, Rule 74, Id.)

Should the settlement be in order, a new title will be issued under your and your brothers names. From
that time on, you may enjoy and dispose of the property, which includes selling the same.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely
on the facts you have narrated and our appreciation of the same. Our opinion may vary when other
facts are changed or elaborated.