Land Titles Ma

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

CHAPTER 1: BACKGROUND, BASIC CONCEPTS & GENERAL PRINCIPLES LAND TITLE – evidence of the owner’s right or extent of interest, by which he can maintain control and as a rule assert right to exclusive possession and enjoyment of property DEED – instrument in writing by which any real estate or interest therein is created, alienated, mortgaged or assigned or by which title to any real estate may be affected in law or equity 1. Grantor 4. Description of Property 2. Grantee 5. Signature of grantor 3. Words of grant 6. Witnesses TYPES OF ESTATES: 1. FREEHOLD ESTATE – indicates title of ownership a. Fee simple – absolute title; conferred without limitation, qualification or restriction b. Fee tail – pass title to grantee & his heirs c. Life state – held for duration of life of grantee

2. LESS THAN FREEHOLD ESTATE – a right short of title a. Estate for years – lease for a period agreed upon, lessor retains ownership of land b. Tenancy from period to period – lease running from month to month or year to year with automatic renewal c. Tenancy at will – person is permitted to occupy land of another without stipulation as to period 3 STAGES OF DEVELOPMENT OF LEGAL SYSTEM OF T RANSFERRING T ITLES: 1. Production & delivery of deed by grantor to grantee without registration 2. Recording of deed of conveyance to bind 3rd persons 3. Registration of title REGISTRATION guarantees the title but RECORDING does not; need to examine other docs PURPOSE OF REGISTRATION:

1. Serve as constructive notice 2. Prevent fraudulent claims 3. Protect interest of strangers to transaction

MODES OF ACQUIRING LAND T ITLES: 1. Title by public grant – conveyance of public land by government to a private individual 2. Title by acquisitive prescription – open, continuous, exclusive, notorious possession of a property 3. Title by accretion – alluvium 4. Title by reclamation – filling of submerged land by deliberate act and reclaiming title thereto; government 5. Title by voluntary transfer – private grant; voluntary execution of deed of conveyance 6. Title by involuntary alienation – no consent from owner of land; forcible acquisition by state 7. Title by descent or devise – hereditary succession to the estate of deceased owner 8. Title by emancipation patent or grant – for purpose of ameliorating sad plight of tenantfarmers; not transferable except by hereditary succession Chapter 2: TORRENS SYSTEM – ORIGIN, NATURE & GENERAL CHARACTERISTICS ADVANTAGES: 1. Abolishes endless fees 2. Eliminates repeated examination of titles 3. Reduces records enormously 4. Instantly reveals ownership 5. Protects against encumbrances not noted on the Torrens certificate 6. Makes fraud almost impossible 7. It assures. 8. Keeps up the system without adding to burden of taxation; system’s beneficiaries pay the fees 1

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

9. Eliminates tax titles 10. Gives eternal title as state ensures perpetuity 11. Furnishes state title insurance rather than private title insurance 12. Makes possible the transfer of titles or loans within hours instead days PURPOSE OF T ORRENS LAW: quiet title to land – once registered, owner might rest secure PERSONS BOUND WHEN T ITLE NOT REGISTERED: 1. Grantor 2. Heirs & devisees 3. Persons with actual notice PROCEDURE IN LAND REGISTRATION CASE: 1. Survey of land by Bureau of Lands or duly licensed private surveyor 2. Filing of application for registration by applicant 3. Setting of date of initial hearing of application by RTC 4. Clerk of court to transmit to Land Registration Authority (LRA) the application, date of initial hearing & other pertinent docs 5. Publication of notice of filing of application, date & place of hearing – in OG and in newspaper of general circulation 6. Service of notice – contiguous owners, occupants & those who have interest in property 7. Filing of answer or opposition to application 8. Hearing of case by RTC 9. Promulgation of judgment by court 10. Issuance of decree by RTC – decision; Instruct LRA to issue decree of confirmation & registration 11. Entry of decree of registration in Land Titles Administration 12. Sending of copy of decree to Register of Deeds (ROD) 13. Transcription of decree of registration in registration book & issuance of the owner’s duplicate original certificate of title of the applicant by the LRA - upon payment of prescribed fees CHAPTER 3: APPLICATION IN ORDINARY REGISTRATION PROCEEDINGS WHO MAY APPLY: 1. Those in open, continuous, exclusive, notorious possession of patrimonial property of state under bona fide claim of ownership since June 12, 1945 or earlier 2. Those who acquired ownership of private land by prescription 3. Those who acquired ownership of private lands by right of accretion 4. Those who acquired ownership in any manner provided for by law LIMITATION TO OWNERSHIP OF LAND BY CORPORATION: 1. PRIVATE LANDS a. At least 60% Filipino to acquire private land b. Restricted as to extent reasonably necessary to enable it to carry out purpose which it was created c. If engaged in agricultural – restricted to 1,024 ha. 2. PATRIMONIAL PROPERTY OF STATE a. Lease for 25 years renewable b. Limited to 1,000 ha. c. Apply to both Filipinos & foreign cos. FORM & CONTENTS OF APPLICATION 1. In writing & signed by applicant or person duly authorized 2. Description of land 3. Citizenship 4. Civil status 5. Full names & address of occupants & adjoining owners WHAT TO ACCOMPANY APPLICATION: 1. Tracing cloth plan duly approved by the Director of Lands 2. 3 copies of technical descriptions 3. 3 copies of surveyor’s certificate 2

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

4. All original muniments of title 5. 4 copies of certificate by city/provincial treasurer of assessed value of land AMENDMENTS ALLOWED & NOT ALLOWED 1. Substantial change in boundaries or increase in area - new technical description necessary – need new publication & notice 2. Substitution of name of new owner – file motion with court 3. Decrease the area – file motion in court MUNIMENT OF TITLE – instruments or written evidence which applicant hold or posses to enable him to substantiate & prove title to his estate TRANSACTION T OOK PLACE BEFORE ISSUANCE OF DECREE: 1. Record instrument in ROD in same manner as if no application was made 2. Present instrument to RTC, motion praying that same be considered in relation to the pending application TRANSACTION T OOK PLACE AFTER ISSUANCE OF DECREE: • Register directly with ROD for purpose of canceling such title & issuing a TCT CHAPTER 4: PUBLICATION, ANSWER & DEFAULT NOTICE IN CONSPICUOUS PLACE IN LAND & BULLETIN BOARD OF MUNICIPALITY – 14 days before hearing HEARING – within 7 days after publication in OG – not less than 45 not more than 90 days from date of order TO WHOM NOTICE MUST BE SENT: 1. City/municipal mayor & provincial governor 2. Department of Agrarian Reform, Solicitor General & Director of Lands, Director of Fisheries, Director of Mines 3. Adjoining owners & those who have rights or interest thereto REQUISITES OF OPPOSITION:

1. Set forth objections to the application 2. State interest claimed by oppositor

GENERAL DEFAULT is when no person appears and answers within time prescribed while SPECIAL DEFAULT is when a party appears at initial hearing without having filed an answer and asks court for time to file answer but failed to do so within period allowed CHAPTER 5: HEARING & EVIDENCE WHO CONDUCTS HEARING: 1. RTC 2. Refer to Referee - Commissioner PROCEEDINGS FOR ORDINARY REGISTRATION (LAND REGISTRATION ACT) /PROCEEDING OF IMPERFECT TITLE UNDER THE PUBLIC LAND ACT • There exist a title to be confirmed • Land applied for belongs to the state • Court may dismiss without prejudice to file new application • Dismiss with prejudice • Risk to have application denied without losing land • Risk involves loss of land

FOR JUDICIAL CONFIRMATION

CHAPTER 6: JUDGMENT & DECREE DECREE – issued by LRA containing technical description of land; issued after finality of judgment 1. Decrees dismissing application 2. Decrees of confirmation and registration • Final 1 year after decree, unless there is an innocent purchaser for value • Subject only to appeal • Once final, cannot be subject to attack and is deemed conclusive against the world 3. Put end to litigation 4. Purpose of Torrens system is protected 3

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

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Amendment after 1 year is allowed - creation or extinguishment of new rights; inclusion of new owners not allowed

JUDGMENT– decision of court constituting its opinion after taking into consideration the evidence submitted WRIT OF POSSESSION – order to sheriff to deliver the land to the successful party litigant; no prescription 1. Against loser 2. Against anyone unlawfully & adversely occupying WHEN WRIT MAY NOT ISSUE: when party entered into property after issuance of final decree, is not an oppositor in registration proceeding, and is in possession of land for at least 10 years MEANS TO RECOVER POSSESSION: 1. Forcible entry 2. Unlawful detainer 3. Accion publiciana 4. Accion reindivicatoria RES JUDICATA: 1. Former judgment must be final 2. Rendered by court having jurisdiction over subject matter & parties 3. Judgment on merits 4. Identity of parties, subject matter and causes of action REMEDIES AVAILABLE TO AGGRIEVED PARTY IN REGISTRATION PROCEEDINGS: 1. MOTION FOR NEW TRIAL - must be brought within 15 days from notice of judgment a. Fraud, accident, mistake, excusable negligence which ordinary prudence could not have guarded b. Newly discovered evidence which could not be discovered & produced at trial c. Evidence insufficient to justify decision, decision is against the law 2. APPEAL – must be brought 15 days from notice of judgment 3. REVIEW OF DECREE OF REGISTRATION – available to party deprived of day in court; became non-party due to misrepresentation; invoke actual fraud; before expiration of 1 year; specific acts intended to deceive; will no longer prosper if already transferred to innocent purchaser for value a. Plaintiff is owner of land registered in name of defendant b. Registration procured through actual fraud c. Property has not issued to innocent purchaser for value d. Action is filed within 1 year after issuance of decree of registration 4. RELIEF FROM JUDGMENT – 60 days – 6 months after entry of order; available to party to case, FAME; after judgment; person deprived of right is party to case 5. RECONVEYANCE – action in personam; available so long as property not yet passed to innocent purchaser for value; bad faith or with notice of defect 6. RECOVERY FOR DAMAGES a. Person is wrongfully deprived of his land by registration in name of another – actual or constructive fraud b. No negligence on his part c. Barred/ precluded from bringing an action d. Action for compensation has not prescribed CHAPTER 7: CERTIFICATE OF TITLE TORRENS TITLE – certificate of ownership issued under the Torrens System of registration by the government through road naming & declaring owner in fee simple of property described therein free from all liens except those expressly noted PROCESS: 1. Within 15 days from finality of order of judgment directing registration of title – court to order LRA to issue decree of registration and certificate of title 2. Clerk of court will send order of court & copies of judgment 3. Administrator to issue decree of registration & original & duplicate of OCT – signed by Administrator, entered & file decree of registration in LRA 4. Send to ROD – original & duplicate of title & certificate for entry in his registration book 4

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

5. Enter in record book, dated, signed, numbered & sealed – take effect upon date of entry 6. ROD to send notice to registered owner ready for delivery after payment of fees 7. ROD shall send duplicate & note on each certificate of title to whom it is issued 8. Original copy to be filed in ROD; bound in consecutive order ACTION FOR PARTITION, SPLITTING OR CONSOLIDATION OF T ITLES: 1. Splitting or consolidation – ordinary – ROD level, no court involved 2. Subdivision plan – approval of NHA, final approval of LRA, then ROD to issue memorandum that streets not to be disposed except by way of donation to govt. shall be effected without approval of NHA ANNOTATIONS AT BACK OF CERTIFICATE – need court order, otherwise null & void CHAPTER 8: VOLUNTARY DEALINGS WITH REGISTERED LAND OPERATIVE ACT – registration by owner; if deed is not registered, it is binding only between parties PROCESS OF REGISTRATION: 1. File instrument creating or transferring interest and certificate of title with ROD a. Owner’s duplicate b. Payment of fees & documentary stamp tax c. Evidence of full payment of real estate tax d. Document of transfer – 1 copy additional for city/provincial assessor 2. ROD shall make a memorandum on the certificate of title, signed by him 3. Issue TCT VOLUNTARY DEALINGS: need to present title to record the deed in registry & to make memorandum on title while in INVOLUNTARY DEALINGS: No presentation required; annotation in entry book is sufficient FORMAL REQUISITES OF A DEED 1. Full name 2. Nationality 3. Place of residence 4. Postal address of grantee or other persons acquiring or claiming interest 5. Civil status 6. Whether or not corporation

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1. ROD to keep an entry book – day book 2. Enter in order of reception all deeds & voluntary instruments, write & processes re land -year, month, day, time, minute of reception of instrument; Registered from time of entry 3. Fees of 5 pesos per document to be paid within 15 days 4. Note memorandum & sign & issuance of certificate 5. Documents are numbered & indexed & indorsed with reference to certificate of title– public records 6. Subject to reasonable regulation Cost borne by vendor

CHAPTER 9: REAL ESTATE MORTGAGE REAL ESTATE MORTGAGE – real property/real rights secures fulfillment of an obligation KINDS: 1. Conventional – agreed upon by parties 2. Legal – created by operation of law 3. Judicial – results from a judgment 4. Equitable – pacto de retro in form but mortgage in essence ESSENTIAL REQUISITES: 1. Constituted to secure fulfillment of principal obligation 2. Mortgagor be absolute owner of thing mortgaged 3. Person constituting mortgage has free disposal of property

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

SPECIAL CHARACTERISTICS: 1. Subject matter is realty 2. Real right – attaches to property wherever it is & whoever holds it 3. Accessory – presupposes existence of valid principal obligation; cannot stand alone 4. Indivisibility – even if debt is divisible; mortgage is not 5. Inseparability – mortgage lien is inseparable from property 6. Retention of possession - mortgagor retains possession PACTO DE RETRO – EQUITABLE MORTGAGE 1. Price of sale with right to repurchase is usually inadequate 2. Vendor remains in possession as lessee or otherwise 3. Upon or after expiration of right to repurchase, another instrument extending period /granting new period is executed 4. Purchaser retains a part of the purchase price 5. Vendor binds himself to pay taxes on thing sold 6. Real intention of parties is that transaction shall secure payment of debt or fulfillment of other obligation Real Mortgage Subject matter is real property Public document only Right of redemption for 1 year Deficiency can be recovered

Chattel Mortgage Subject matter is movable May be in private document provided there is affidavit of good faith No right of redemption Deficiency cannot be recovered

EXECUTION & REGISTRATION 1. Execution of deed in a form sufficient in law (public instrument) 2. Registration with ROD where the land lies & take effect upon registration a. Present deed of mortgage together with owner’s duplicate b. Payment of fees c. ROD shall enter upon original certificate of title & upon duplicate a memorandum – date, time of filing, signature, file number assigned to deed d. ROD to note on deed the date & time of filing & reference to volume & page of registration book in which it was registered 3. No duplicate need be issued SUBJECT MATTER • Real property plus all its accessions unless contrary is stipulated • Future property – without legal effect • Future improvements – deemed included • Fruits & rents of mortgaged property deemed included • Continuing credit secured by mortgage valid FORMS: 1. Private document – void & inexistent 2. Public instrument but not recorded – binding between parties but not 3rd persons without notice 3. Public document & registered – valid & binding to 3rd parties MAY MORTGAGE BE REGISTERED WITHOUT DUPLICATE T ITLE: Yes • If being withheld by the owner, ROD notifies by mail within 24 hours to registered owner: 1. Stating that mortgage has been registered 2. Requesting that owner’s duplicate be produced so that memorandum be made thereof • Owner refuses to comply within reasonable time; ROD to notify court & court may enter order requiring owner to produce certificate SUBSEQUENT DEALINGS IN MORTGAGED PROPERTY 1. May be further alienated – stipulation to contrary is void

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

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Assignment must also be registered since registration is operative act to affect land • If not recorded – valid as to parties but not to 3rd parties, right not protected against somebody who registers & procures better right 2. May be further mortgaged – stipulation to contrary is void • No need to secure permission of mortgagee • Understood unless prohibited in contract 3. Pactum commisorium – not allowed a. Property is mortgaged b. There is stipulation for automatic appropriation 4. Discharge • Execute public document canceling or releasing mortgaged in form prescribed by law • Present instrument with ROD where land lies together with owner’s duplicate for registration • Memorandum of cancellation is annotated on duplicate & original WHEN MORTGAGOR DIES 1. Abandon security & prosecute his claim by sharing in general distribution of assets of the estate 2. Foreclose mortgage by making executor party defendant 3. Foreclose it in due time PARTIES IN FORECLOSURE SUIT: all persons claiming interest subordinate in right to mortgagee ACTION TO FORECLOSE: Prescribes in 10 years (written contract) VENUE: Per stipulation or in absence thereof, where the property lies FORECLOSURE 1. JUDICIAL a. Mortgagee to petition in court for foreclosure b. Court to render order for debtor to pay sum due within 90 days and if not paid from date of service, property be sold at public auction c. Notice & Publication d. Public auction: sale to highest bidder e. Sheriff to issue certificate confirming judicial foreclosure f. File with ROD final decree of court confirming sale g. Memo entered in certificate of title h. If right of redemption exist, certificate of title of mortgagor not to be cancelled but memorandum shall be entered upon the certificate duplicate & original i. After expiry of 1 year redemption period & no redemption, title is consolidated to new owner j. Purchaser to be entitled to new certificate of title & memorandum endorsed on mortgage deed k. If there is redemption, memorandum to be annotated on certificate of title 2. EXTRA-JUDICIAL • Allowed only if stipulation between party authorizes extra-judicial foreclosure • Cannot be made legally outside of city where land lies • Publication required: post notices for 20 days in 3 public places where property lies & if property is more than P400.00, publication must be for 3 consecutive weeks in news paper of general circulation • If foreclosure by rural banks, exempt from publication in newspaper for loans not exceeding 3,000.00 • Registration of sale in ROD: a. Deed of sale must be supported by certificate of sheriff that said sale was conducted accordingly stating the date, time, place of sale, names of creditor & debtor, description of property, name of highest bidder, selling price b. Present in ROD where land lies c. Memorandum on back of certificate is made

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

d. After expiration of 1 year of redemption period – title is consolidated if no redemption exercised: purchaser to file with ROD the deed of sale & sworn statement attesting to fact that there is no redemption e. New certificate of title issued in favor of vendee f. If redeemed – notice of redemption shall be registered & accomplished by way of memorandum on proper certificate of title RIGHT OF REDEMPTION • Payment of purchase price plus 1% per month plus taxes if paid by purchaser • To be exercised within 1 year after registration of sale RIGHT TO DEFICIENCY – allowed CHAPTER 10: CHATTEL MORTGAGE CHATTEL MORTGAGE – personal property is registered with ROD to secure performance of an obligation SUBJECT MATTER: movables DEED OF MORTGAGE: requires only description to enable parties & other persons to identify the subject matter REGISTRATION OF CHATTEL MORTGAGE 1. Execution of document 2. Payment of fees 3. ROD enters in DAY BOOK in strict order of their presentation chattel mortgages & other instruments relating thereto (primary process) 4. ROD thereafter enters in a more detailed form the essential contents of the instrument in the Chattel Mortgage Register (complementary process) EFFECT OF REGISTRATION: 1. Creates a lien – attaches to the property whoever holds it; binding on subsequent purchasers 2. Constructive notice SALE OF CHATTEL WITHOUT CONSENT OF MORTGAGEE – void; criminal act EFFECT OF FAILURE TO REGISTER: • Valid between parties but void against 3rd persons • If instead of registration, it is delivered – it shall be a pledge & not chattel mortgage (if no chattel mortgage deed executed) • Actual knowledge is same effect as registration AFFIDAVIT OF GOOD FAITH: Statement That – 1. Mortgage is made to secure obligation specified 2. Valid & just obligation 3. Not entered into for purpose of fraud EFFECT OF ABSENCE OF AFFIDAVIT OF GOOD FAITH: • Vitiates mortgage as against creditors & subsequent encumbrances • Valid as between parties • No need to be in public document ASSIGNMENT OF MORTGAGE: No need to be registered, permissive only & not mandatory CANCELLATION OF CHATTEL MORTGAGE: Mortgagee to execute a discharge of the mortgage in manner provided by law FORECLOSURE OF MORTGAGE • There must first be non-payment & at least 30 days have elapsed since then • Alternatives: 1. Judicial 2. Extra-judicial – only if there is stipulation/authority

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

PROCEDURE IN FORECLOSURE 1. Notice posted for 10 days in at least 2 public places in municipality where property is to be sold designating the time, place and purpose of sale 2. Mortgagor is notified in writing at least 10 days before sale 3. Public auction 4. 30 days after sale, officer makes a return & file with ROD where mortgage has been recorded 5. Officer’s return operates as a discharge of the lien created by the mortgage 6. Proceeds to be applied: a. Cost of sale b. Amount of obligation c. Subsequent mortgages d. Balance – mortgagor RECOVERY OF DEFICIENCY: Allowed CHAPTER 11: LEASE LEASE - one of the parties deliver possession of property to another who is obliged to pay rent for use of such property REGISTRATION OF LEASE 1. File with ROD the instrument creating lease together with Owner’s Duplicate of certificate of title 2. ROD to register by way of memorandum upon certificate of title 3. No new certificate shall be issued WHEN THERE IS PROHIBITION IN MORTGAGED PROPERTY Leasehold cannot be registered in the title thereof

AS REGARDS

SUBSEQUENT CONVEYANCES,

ETC .:

EFFECT OF REGISTRATION: 1. Creates a real right but without prejudice to rights of 3rd persons 2. If not registered – valid as between parties but not to 3rd persons without notice REGISTRATION – lessor not required to initiate; lessee shall initiate ALIENS: 1. May be granted temporary rights for residential purposes 2. Limit: 25 years, renewable for another 25 years WHO ELSE MAY REGISTER: Builder in Good Faith CHAPTER 12: TRUSTS & POWERS OF ATTORNEY TRUST – obligation of a person to whom legal title to property is transferred to hold the property according to confidence reposed in him 2 KINDS: 1. Expressed – need to be in writing; cannot be proved by parole evidence 2. Implied – exist by operation of law; can be proved by parole evidence a. Property is bought but paid by another party b. Donation is made but donee have no beneficial interest thereon c. Price of sale of property is loaned & conveyance is made to lender to secure fulfillment of loan d. Land passes by succession to a person but legal title is put in another’s name e. 2 persons purchase property but placed only in one’s name f. Guardian uses funds of ward to buy property g. Property is acquired thru mistake or fraud POWER OF ATTORNEY – authority granted to a person to dispose one’s property TRUST DIFFERENTIATED FROM POWER OF ATTORNEY 1. Trust has 3 parties while power of attorney has 2 parties 2. Trust is for benefit of 3rd party while power of attorney is for benefit of principal

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

REGISTRATION OF T RUST 1. Sworn statement claiming interest by reason of an implied trust with description of land & reference to number of certificate shall be registered in ROD 2. Provided not prohibited to do so by instrument creating the trust APPOINTMENT OF T RUSTEE BY COURT • Certified copy of decree shall be presented to ROD & surrender duplicate certificate • Cancel duplicate & new certificate shall be entered by ROD ACTION FOR RECONVEYANCE BASED ON IMPLIED T RUST • Prescribes in 10 years • If acknowledged in written form – becomes express trust – prescribes upon repudiation CHAPTER 13: INVOLUNTARY DEALINGS WITH REGISTERED LAND INVOLUNTARY DEALINGS – transactions affecting land in which cooperation of registered owner is not needed: it may even be against his will ATTACHMENT • A writ issued at the institution or during progress of an action commanding the sheriff to attach the property, rights, credits or effects of the defendant to satisfy demands of the plaintiff • Kinds: a. Preliminary b. Garnishment c. Levy on execution REGISTRATION OF ATTACHMENT/OTHER LIENS 1. Copy of writ in order to preserve any lien, right or attachment upon registered land may be filed with ROD where land lies, containing number of certificate of title of land to be affected or description of land 2. ROD to index attachment in names of both plaintiff & defendant or name of person whom property is held or in whose name stands in the records 3. If duplicate of certificate of title is not presented: a. ROD shall within 36 hours send notice to registered owner by mail stating that there has been registration & requesting him to produce duplicate so that memorandum be made b. If owner neglects or refuses – ROD shall report matter to court c. Court after notice shall enter an order to owner to surrender certificate at time & place to be named therein 4. Although notice of attachment is not noted in duplicate, notation in book of entry of ROD produces effect of registration already EFFECT OF REGISTRATION OF ATTACHMENT: 1. Creates real right 2. Has priority over execution sale 3. But between 2 attachments – one that is earlier in registration is preferred 4. If not registered – actual knowledge is same as registration DUTY OF ROD • Basically ministerial but may refuse registration in ff circumstances: 1. Title to land is not in the name of defendant 2. No evidence is submitted to show that he has present or possible future interest in land 3. Unless: heir PROPERTIES EXEMPT FROM EXECUTION: Family Home ATTACHMENT – How continued, reduced or discharged • Any method sufficient in law • Document to be registered 1. EXECUTION SALE

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

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To enforce a lien of any description on registered land, any execution or affidavit to enforce such lien shall be filed with ROD where land lies Register in registration book & memorandum upon proper certificate of title as adverse claim or as an encumbrance To determine preferential rights between 2 liens: priority of registration of attachment

2. TAX SALE • Sale of land for collection of delinquent taxes and penalties due the government • In personam (all persons interested shall be notified so that they are given opportunity to be heard) • Notice to be given to delinquent tax payer at last known address • Publication of notice must also be made in English, Spanish & local dialect & posted in a public & conspicuous place in place wherein property is situated & at main entrance of provincial building • Sale cannot affect rights of other lien holders unless given right to defend their rights: due process must be strictly observed • Tax lien superior to attachment • No need to register tax lien because it is automatically registered once the tax accrues • But sale of registered land to foreclose a tax lien need to be registered PROCEDURE OF REGISTRATION OF T AX SALE: 1. Officer’s return shall be submitted to ROD together with duplicate title 2. Register in registration book 3. Memorandum shall be entered in certificate as an adverse claim or encumbrance 4. After period of redemption has expired & no redemption (2 years from registration of auction sale) cancellation of title & issuance of new one 5. Before cancellation, notice shall be sent to registered owner: to surrender title & show cause why it shall not be cancelled ACTUAL KNOWLEDGE IS EQUIVALENT TO REGISTRATION OF ADVERSE CLAIM 1. Make a statement in writing setting forth alleged interest, from whom acquired, how acquired, no. of certificate of land, name of registered owner, description of land in which right/interest is claimed – signed & sworn to 2. Statement shall be entitled to registration as adverse claim on certificate of title 3. Effective for 30 days from date of registration 4. After 30 days, may be cancelled by filing of verified petition by party in interest • Any party may petition in court to cancel adverse claim • Court to grant speedy hearing • If adverse claim is adjudged invalid – may be cancelled 5. No 2nd adverse claim based on same ground shall be registered by same claimant CHAPTER 14: REGISTRATION OF LIS PENDENS PURPOSE: keep subject matter within the power of the court until the entry of final judgment --therefore creates merely a contingency & not a lien EFFECT OF REGISTRATION: 1. Impossibility of alienating the property in dispute during the pendency of the suit – may be alienated but purchaser is subject to final outcome of pending suit 2. ROD duty bound to carry over notice of lis pendens on all new titles to be issued CANCELLATION OF LIS PENDENS: 1. Before final judgment – court may order cancellation after showing that notice is only for purpose of molesting an adverse party or it is not necessary to protect rights of party who caused it to be registered 2. ROD may also cancel by verified petition of party who caused such registration 3. Deemed cancelled when certificate of clerk of court stating manner of disposal of proceeding is registered

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

NOTICE OF LIS PENDENS IS AN INVOLUNTARY T RANSACTION • Sufficient that there is entry in day book OTHER PARTIES WHO NEED TO REGISTER: 1. ASSIGNEE IN INVOLUNTARY PROCEEDING FOR INSOLVENCY • Duty of the officer serving notice to file copy of notice to ROD where the property of debtor lies • Assignee elected or appointed by court shall be entitled to entry of new certificate of registered land upon presentment of copy of assignment with bankrupt’s certificate of title (duplicate) • New certificate shall not state that it is entered to him as assignee or trustee in insolvency proceedings JUDGMENT/ORDER VACATING INSOLVENCY PROCEEDINGS • Order shall also be registered • Surrender title issued in name of assignee & debtor shall be entitled to entry of new certificate 2. GOVERNMENT IN EMINENT DOMAIN • Copy of judgment file in ROD which states description of property, certificate number, interest expropriated, nature of public use • Memorandum shall be made or new certificate of title shall be issued CHAPTER 15: TRANSMISSION BY DESCENT AND DEVISE WHEN OWNER OF PROPERTY DIES – testate or intestate, • Administrator shall file with ROD registration of property in his name to be vested with ownership as trustee so he can sell, etc, convey, etc • Not necessary if already empowered in the will WHEN JUDICIAL PROCEEDING NOT NECESSARY • Heirs may partition estate immediately & no need to be burdened with cost/expenses of an administrator 1. In absence of debts 2. Heirs are all of legal age PARTITION/SETTLEMENT OF ESTATE 1. JUDICIAL • After entry of final judgment of partition, copy certified by clerk of court to be filed with ROD • Each owner to give separate certificate of title (duplicate) • If ordered to be sold, purchaser shall be entitled to a certificate of title entered in his name upon presentment of order confirming sale 2. EXTRAJUDICIAL a. Decedent died intestate b. No debts c. Heirs are all of legal age, or minors represented by guardian • Heirs to execute public instrument to be filed with ROD • If disagree with each other, file in court ordinary action for partition • If there is only 1 heir, may adjudicate to himself entire estate via affidavit to be filed with ROD • If there are movables involved, bond to be filed equivalent to value of property as certified under oath by parties conditioned upon payment if any just claim which may be filed by creditor within 2 years after distribution • Publication in newspaper of general circulation for 3 weeks; not binding to those without notice • Final after 2 years

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

ORAL PARTITION, WHEN DEEMED VALID • In provinces when person dies leaving property not covered by Torrens system – to avoid legal expenses, heirs make a list of property, pay off debts & assign to each • Statute of frauds – do not operate because it is not a conveyance but a separation of property and designation of part which belongs to them WILLS AND LETTERS OF ADMINISTRATION • Executor required to file with ROD a certified copy of his letters of administration or the will if there is a will in order that ROD may register upon certificate a memorandum with reference to file no & date of filing COURT AUTHORITY NEEDED IN ORDER TO SELL 1. May be dispensed with if will empowers him sell 2. Without authority first secured, heir may sell subject to result of pending administration CHAPTER 16: ASSURANCE FUND • State creates a fund for the compensation of persons injured by divesting/cutting off of rights due to the indefensibility of title; following that act of registration is operative act by which State transfers title; created to relieve innocent persons from harshness of doctrine that certificate of title is conclusive evidence of an indefeasible title to land. •

Upon entry of certificate in name of owner or TCT, ¼ of 1% shall be paid to ROD based on assessed value of land – as contribution to assurance fund; if no assessment yet, sworn declaration of 2 disinterested persons subject to determination by court.

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Money shall be under custody of the National treasurer; invest it until principal plus interest aggregates to 500,000, excess shall be paid to the Assurance Fund; annual report of Treasurer to Secretary of Budget

WHO IS ENTITLED: 1.

2. 3. 4.

Claimant must be owner, purchaser or encumbrancer in good faith who suffered actual damage by loss of land; in short – he is deprived of his land or interest therein No negligence attributable to him Claimant is barred from filing action to recover said land Action to recover from assurance fund has not prescribed

LOSS/DAMAGES SHOULD NOT BE DUE TO FOLLOWING REASONS: 1. Breach of trust 2. Mistake in resurvey resulting in expansion of area in certificate of title LOSS/DAMAGES SHOULD BE DUE TO THE FOLLOWING REASONS: 1.

2. 3.

Omission, mistake, misfeasance of ROD or clerk of court Registration of 3rd persons as owner Mistake, omission, misdescription in certificate of title,

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

4.

duplicate or entry in books Cancellation

AGAINST WHOM ACTION IS FILED: 1. Action due to deprivation of land due to mistake, negligence, omission of ROD, etc – ROD and National Treasurer as defendants; Sol-Gen must appear 2. Private persons involved – should also be impleaded LIABILITY: 1. Satisfy claims from private persons first 2. When unsatisfied – secondary liable is the National Treasurer who shall pay thru assurance fund; thereafter Government shall be subrogated to rights of plaintiff to go against other parties or securities MEASURE OF DAMAGES: • Based on amount not greater than fair market value of land • Amount to be recovered not limited to 500,000 which is maintained as standing fund • If fund is not sufficient, National Treasurer is authorized to make up for deficiency from other funds available to Treasury even if not appropriated WHERE AND WHEN TO FILE ACTION AGAINST ASSURANCE FUND: 1. Any court of competent jurisdiction – RTC in city where property lies or resident of plaintiff 2. Action prescribes in 6 years from time plaintiff actually suffered loss 3. If plaintiff is minor, insane or imprisoned – has additional 2 years after disability is removed to file action notwithstanding expiration of regular period CHAPTER 17: PETITIONS AND MOTIONS AFTER ORIGINAL REGISTRATION 1. LOST DUPLICATE CERTIFICATE • Sworn statement that certificate is lost to be filed by person in interest with ROD • Petition to court for issuance of new title • After notice and hearing – court to order issuance of new title with memorandum that it is issued in place of lost certificate (duplicate) • If false statement: complex crime of estafa thru falsification of public document 2. ADVERSE CLAIM IN REGISTERED LAND • Whoever claims a better right or interest in a land adverse to the registered owner shall make written statement alleging his right, how and when acquired with description of land • Statement to be signed and sworn to • Entitled to registration as adverse claim – noted on certificate of title • If there is petition – speedy hearing, determine validity of adverse claim • May be cancelled without court order; effective only for 30 days • After cancellation, no adverse claim on same ground may be registered by same claimant: Adverse to registered owner Arises after original registration Cannot be registered under the land registration act • To be made on original certificate, to the duplicate is not necessary because no access to latter • Contracts of lease, contract to sell but prescription & money claims not allowed • Purpose: measure designed to protect the interest of a person over a property where registration is not provided for by the land registration act; serve as notice and warning to persons subsequently dealing on said land • Different with lis pendens: permanent; can only be removed after hearing is done but adverse claim is only for 30 days: lis pendens – notice that property is in litigation; adverse claim; somebody is claiming better right • Recent ruling: adverse claim can only be removed upon court order 3. PETITION SEEKING SURRENDER OF DUPLICATE TITLE 14

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

• •

In voluntary and involuntary conveyances – when duplicate cannot be produced, petition in court may be filed to compel surrender of certificate of title duplicate to ROD After hearing, may order issuance of new certificate and annul the old certificate; new certificate shall contain annotation re annulment of old certificate

4. AMENDMENT AND ALTERATION OF CERTIFICATE OF TITLE • A certificate of title cannot be altered, amended except in direct proceeding in court; summary proceeding • Entries in registration books not allowed to be altered except by order of court • Grounds: 1. New interest not appearing on the instrument have been created 2. Interest have terminated or ceased 3. Omission or error was made in entering certificate 4. Name of person on certificate has been changed 5. Registered owner has married 6. Marriage has terminated 7. Corporation which owner registered land has dissolved and has not conveyed the property within 3 years after its dissolution • What corrections are permitted in title (which does not include lands included in original; technical description as long as original decree of registration will not be reopened and rights or interest of persons not impaired; old survey was incorrect; substitution of name of registered owner) 1. Alterations which do not impair rights and 2. Alterations which impair rights – with consent of all parties 3. Alterations to correct obvious mistakes 5. RECONSTITUTION OF ORIGINAL CERTIFICATE OF TITLE • As consequence of war – records have been destroyed • When reconstituted – have same validity as old title • Can only be done judicially by filing a petition for reconstitution with RTC • To be published in OG for 2 consecutive issues and on main entrance of municipality at least 30 days before hearing • In rem proceedings • Court to order reconstitution if it deemed fit; issue order to ROD • Lack of essential data fatal 6. TRANSACTION EVIDENCED BY LOST DOCUMENT – HOW REGISTERED • ROD forbidden to effect registration of lost or destroyed documents • Steps by interested parties: 1. Procure authenticated copy of lost or destroyed instrument 2. Secure an order from court CHAPTER 18: FEES, OFFENSES, PENALTIES • In connection with original and subsequent registration of lands – payable to Clerk of court, ROD, sheriff • Full payment of fees prerequisite to registration: at least the entry fee of 5.00, rest of the fees due payable within next 15 days OFFENSES: 1. Larceny 2. Perjury – false statement under oath 3. Fraudulent procurement of certificate: fine of not more than 10,000 or imprisonment of 5 years or both in discretion of court 4. Forgery: fine of not more than 10,000 or imprisonment of 10 years or both in discretion of court a. Forging of seal in ROD, name, signature or handwriting of any officer of court of ROD b. Fraudulent stamping or assistance in stamping c. Forging of handwriting, signature of persons authorized to sign

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

d. Use of any document which an impression of the seal of the ROD is forged 5. Fraudulent sale: sale of mortgaged property under the misrepresentation that it is not encumbered; deceitful disposition of property as free from encumbrance: imprisonment of 3 years or fine not exceeding 2,00 or both at discretion of court CHAPTER 19: REGISTRATION OF PUBLIC LANDS PUBLIC LANDS – all lands owned by the government • Inalienable and alienable • Inalienable – public domain: timber and miner lands • Alienable/ Disposable - public agricultural land PUBLIC LAND MAY BE ALIENATED, CONVEYED TO PRIVATE PERSON. PROCEDURE: 1. Official issuing instrument of conveyance to issue instrument 2. File instrument with ROD 3. Instrument to be entered in books and owner’s duplicate to be issued 4. Instrument – only contract between Government and private person and does not take effect as conveyance if unregistered, it is registration which is operative act of conveying land; evidence of authority for ROD to register 5. Fees to be paid by grantee 6. After issuance of certificate of title, land is deemed registered land within the purview of the Torrens system NATURE OF T ITLE TO PUBLIC LANDS CONVEYED: INDEFEASIBLE AND CONCLUSIVE • In absence of registration, title to public land is not perfected and therefore not indefeasible • In case of 2 titles obtained on same date – one procured through decree of registration is superior than patent issued by director of lands • 2 titles procured by one person – one from homestead patent, one from judicial decree & sold to 2 different persons, one who bought it for value and in good faith & one who register first shall have preference CLASSIFICATION OF LAND OF PUBLIC DOMAIN: • Classification is exclusive prerogative of executive & not by judiciary • Anyone who applies for confirmation of imperfect title has burden of proof to overcome the presumption that the land sought to be registered forms part of public domain (Regalian doctrine) UNDER THE CONSTITUTION: 1. Agricultural – only one subject to alienation 2. Forest or timber 3. Mineral lands 4. National park UNDER THE PUBLIC LAND ACT: 1. Alienable/disposable a. Agricultural b. Residential, commercial, industrial c. Educational, charitable d. Town sites and for public and quasi-public uses 2. Timber lands - inalienable 3. Mineral lands inalienable • If patent or title is issued – void ab initio for lack of jurisdiction • Not subject to acquisitive prescription; even if in possession for long time, will not ripen into ownership • Except: mineral lands and forest lands acquired before inauguration of Commonwealth in November 15, 1935; vested rights which are protected

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

FISHPONDS Before: included in definition of agriculture, conversion of agricultural land to fishponds does not change character of land Now: restricted meaning; fishponds have a distinct category; cannot be alienated but may be leased from government. DIRECTOR OF LANDS • Quasi-judicial officer • Findings of fact conclusive on higher court with absence of fraud, mistake other than error of judgment; but not with regards to finding of law • Empowered to alienate and dispose lands MODES OF ALIENATING PUBLIC LANDS: 1. Homestead settlement 2. Sale 3. Confirmation of imperfect or incomplete title a. Judicial legalization b. Administrative legalization •

Lease not included since lease does not transfer ownership; free-title grant: free distribution of public lands to encourage people to cultivate; government furnishes the applicant with tolls plus cash allowance to enable him to cultivate

CONFIRMATION OF IMPERFECT T ITLE: 1. Last extension granted by Government was until December 31, 1987 2. Right made available to person qualified to acquire alienable and disposable public land thru open, continuous, exclusive, notorious (OCEN) possession under bonafide claim of ownership since June 12, 1945. a. Prior to transfer of sovereignty from Spain to US, have applied for purchase but did not receive title, without default on their part provided they have occupied since their application b. In OCEN possession since June 12, 1945 or earlier c. Members of cultural minorities in OCEN who has claim of ownership for at least 30 years MAXIMUM LAND THAT CAN BE APPLIED: 144 hectares • In case of foreigner, sufficient that he is already Filipino citizen at the time of his application • Corporation who has less 60% Filipino ownership cannot apply confirmation of imperfect title; can only lease PERSONS COMPETENT TO QUESTION LAND GRANT • Persons who obtained title from State or through persons who obtained title from State PATENT WHEN GOVERNMENT GRANT DEEMED ACQUIRED BY OPERATION OF LAW: 1. Deed of conveyance issued by government patent/grant 2. Registered with ROD – mandatory: operative act to convey & transfer title 3. Actual physical possession, open & continuous • Land ceased to be part of public domain & now ownership vests to the grantee • Any further grant by Government on same land is null & void • Upon registration, title is indefeasible TITLE ISSUED PURSUANT TO REGISTRATION OF PATENT 1. Indefeasible – when registered, deemed incorporated with Torrens system; 1 year after issuance of patent 2. May not be opened one year after entry by LRA; otherwise, confusion, uncertainty & confusion on government system, of distribution of public lands may arise & this must be avoided Except: annullable on ground of fraud, may be reopened even after 1 year because registration does not shield bad faith

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

•

Court in exercise of equity jurisdiction may direct reconveyance even without ordering cancellation of title

AIM OF HOMESTEAD PATENT: • Benevolent intention of government to distribute disposable agricultural land to destitute citizens for their home and cultivation • As a matter of public policy, may be repurchased even if after 5 years provided not for profit • Right of repurchase not allowed if sold within family & not for cultivating or living but for speculation purpose RESTRICTIONS: 1. Cannot be alienated within 5 years after approval of application for patent 2. Cannot be liable for satisfaction of debt within 5 years after approval of patent application 3. Subject to repurchase of heirs within 5 years after alienation when allowed already 4. No corporation, partnership, association may acquire unless solely for commercial, industrial, educational, religious or charitable purpose or right of way subject to consent of grantee & approval of Secretary of Natural resources EXCEPTIONS: 1. Action for partition because it is not a conveyance 2. Alienations or encumbrances made in favor of the government ERRED HOMESTEADER NOT BARRED BY PARI DELICTO • Pari delicto rule does not apply in void contract • Violation of prohibition results in void contract • Action to recover does not prescribe HOMESTEADER • If he dies, succeeded by heirs in the application LEGAL RESTRICTION IN DISPOSITION BY NON-CHRISTIANS (CULTURAL MINORITIES) • Conveyance is valid if able to read and can understand language where deed is written • Otherwise, not valid unless approved by Commission on National Integration • Safeguard is to protect them against fraud/deceit CHAPTER 20: CADASTRAL REGISTRATION PROCEEDINGS PURPOSE: • Another means to bring lands under operation of Torrens System • Ordinary registration is slow for lack of initiative on part of landowners, innovation was conceived to hasten and accelerate registration • Government initiates that all lands within a stated region are up for registration – whether or not owners are interested to settle their titles NATURE OF PROCEEDINGS: • In rem • No defendant & no plaintiff • Compulsory PROCEDURE: 1. CADASTRAL SURVEY • In opinion of Phil president pursuant to requirement of public interest, title of land within a specified area needs to be settled and adjudicated • Order Director of Lands to make survey and plan • Director gives notice to persons claiming interest in lands & to gen public of day of survey – published in OG and posted in conspicuous place on lands to be surveyed • Geodetic engineers commences survey 18

CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

•

During survey, boundaries are marked by monuments

2. FILING OF PETITION • After survey and plot been made, Director represented by Sol Gen institutes cadastral proceeding by filing petition in court against holders, claimants, possessors, occupants • Parcel of lots given their cadastral numbers 3. PUBLICATION OF NOTICE OF HEARING • Court to order date of hearing • LRA to notify public by publishing notice 1x in OG and 1x in newspaper of general circulation & copy mailed to person whose address is known & other copies posted in conspicuous place designated by law 4. FILING OF ANSWER • Any person claiming interest in any part of lands subject to petition is required to file answer • Answer must give the ff details: a. Age of claimant b. Cadastral number of lot claimed c. Name of barrio or municipality where lot is located d. Name of owners of adjoining lots e. If in possession & without grant – no of years in possession f. If not in possession – state interest claimed g. If assessed of taxation – assessed value h. Any encumbrances affecting said lots 5. HEARING OF CASE • In any convenient place where land lies • Like an ordinary RTC trial • Conflicting claims are determined • Lots claimed are awarded to persons entitles – if they could prove title • If none could prove title – land is declared public domain

6. DECISION •

Claimants are notified of decision

7. ISSUANCE OF DECREE AND CERTIFICATE OF TITLE • Upon order of court, LRA to enter decree of registration • Decree made basis for issuance of OCT • Decree is now being directly prepared and issued on regulation forms of such certificate NATURE OF T ITLE COVERED BY 2 ACTS: • Title in good faith & for value • Errors in plan do not annul decree of registration • Cancellation & correction are permitted LAND ALREADY REGISTERED • Jurisdiction is limited only to correction of technical errors • Court cannot issue decree on land already decreed • Revision of decree allowed when substantial rights are not impaired; what is prohibited is registered land to be registered again in name of another • Jurisdiction subsists to all incidental matters

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CIVIL LAW (LAND TITLES) MEMORY AID BAR OPERATIONS 2002

CADASTRAL PROCEEDING COMPARED TO ORDINARY REGISTRATION CADASTRAL ORDINARY Party Initiating Government Private Individual Subject Matter Private and Public Private Lands Ownership Government does not assert Ownership is Asserted ownership Interested only in settlement of titles Survey Government undertakes survey On account of owner and advances expenses I In absence of successful Applicant has another chance to claimant, property goes to claim is dismissal is without government prejudice WHEN CAN CADASTRAL PROCEEDINGS MAY BE OPENED • 10 years up to Dec 31, 1968 • Persons claiming title but were unable to file their claim even while in possession are granted right to petition for reopening of proceedings provided such were not alienated, leased or disposed by government CADASTRAL COURT DOES NOT AWARD DAMAGES, BUT MAY DIRECT SHERIFF TO DELIVER POSSESSION • Provisions of land registration act applicable to cadastral proceedings CHAPTER 21: SYSTEM OF REGISTRATION FOR UNREGISTERED LANDS • System of registration for unregistered land under the Torrens System (ACT 3344) • Before: covers voluntary dealings, now includes involuntary dealings • Effect if prospective; binds 3rd persons after registration but yields to better rights of 3 rd person prior to registration (limited effect to 3rd parties) • Reason: no strict investigation involved • Subsequent dealings – also valid if recorded • ROD keeps day book & a register; index system is also kept • Procedure: 1. Presentment of instrument dealing in unregistered land 2. If found in order – registered 3. If found defective – registration is refused writing his reason for refusal

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