Dear Atty. Duran-Schulze,
I am a widower, 82 years old, with two children, a daughter and a son, both on their own already.
When my wife, their mother, died intestate on July 28, 2010, I made a self-adjudication on our conjugal partnership land titles, on the advice of a lady expert recommended by the free legal assistance of the local city hall.
I told this lady expert that I wanted to make us three: papa, daughter, son to become co-owners of the land titles, she advised that better just make a self-adjudication by which I would have all land titles in my name alone: because as co-owners my kids might sooner than later get the idea that they would want to obtain each one’s 1/3 portion of the worth of our combined properties. That would then be bad for me, for I would end up with only 1/3 worth of my land properties.
So, that is why and how I got all TCTs in my name alone, and my two kids, already adults, did not know about TCTs or transfer of TCTs whatsoever – at that point in time.
Notwithstanding the self-adjudication, I told my two kids time and again to determine by themselves what and how they would agree to divide their parents’ combined properties between them two, before when I would depart from life – as I do not want to have them complain that I favored one more than the other.
In the latter part of 2017 my daughter asked me whether they could sell the house, I told her, yes. She asked me in whose name would the payment check of the sale price be paid to – she wanted it to be in her name, I told her no because I am the owner.
That was the beginning of our strained relationship, and she has become harsh toward me.
My daughter found an attorney who gave her the idea of an adverse claim, on her inheritance from her mother’s intestate estate, against me.
Now, Pag-Ibig will not entertain loan applications for those wanting to buy the house & lot we are trying to sell, owing to the adverse claim covering the titles to these partitions.
It would seem that the attorney contracted by my daughter failed to inform my daughter that the adverse claim will in effect discourage attention from prospective buyers, it will also stop any loan from Pag-Ibig.
My concern: What ways and means will convince the attorney of my daughter to retract the adverse claim she filed on behalf of my daughter, for the adverse claim is signed by my daughter, while the attorney is the master-mind. If the attorney had any good sense to procure the peace and trust between my daughter and me, she should have contacted me, prior to throwing with undue haste, the adverse claim against me.
Dear writer,
The conjugal property left by your wife should be divided into the following shares: ½ to you, being the co-owner of the conjugal property, and the other ½ should be divided into 3: between you and your two children.
Based on your facts, there was no mention as to when the property was transferred under your name, and it is only in 2018 when the adverse claim was annotated on the title. Section 70 par. 2 of PD 1529 provides that an adverse claim is effective for 30 days from the date of registration. After the lapse of 30 days, the annotation of the adverse claim may be cancelled upon filing of a verified petition by the party in interest. Note that a hearing is still necessary for its cancellation.
We are assuming that the basis of the adverse claim is the exclusion of the other heirs from the title. Section 4 of Rule 74 of the Rules of Court provides for a prescriptive period for the liability of distributees of the estate within a period of two years. Outside this prescriptive period, the person who filed the adverse possession must file an action before the proper courts to cancel the title and issue another one in favor of the 3 heirs – you and your 2 children.
Also, given that you have put the legal title of the said properties under your name, an implied trust has been formed in favor of your son and daughter. Article 1451 of the New Civil Code provides that “When land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner.” Thus, a reconveyance of the rightful share of property to the heirs is proper.
In order to convince your daughter to cancel the adverse claim, you can tell her that you will give her appropriate share of the property, by having the property partitioned and by causing the transfer of the property’s legal title under her name. If that does not work, your second remedy is that you pay your daughter the money equivalent of her share in the property instead.
We hope we are able to answer your query. Please be informed that the foregoing legal opinion is based solely on the facts that you have provided us and our appreciation of the same. In case you need further assistance, our firm is open and ready to assist you. Thank you.
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