Osmeña: Real statute of fraud

Tuesday, January 20, 2009

Antonio V. OsmeñaEstatements

THROUGHOUT the history of title recording, means and ways have been sought to make transfer of real property as simple and safe as the procedures related to other properties; doing away, if possible, with the repeated search and examination of titles.

The search for some permanent form of title registration is still prompted by the tedious and often difficult and cumbersome method by which title changes and, in addition, by the ever present fear that ownership of farm or home may be invalidated by the court because of faulty or illegal property transfer somewhere in the chain of title grantors.

To illustrate, let’s consider a certain tract of land in Inayawan, Cebu City with a land area of 443,553 square meters, which is the subject of legal claim by the Abangan clan. The property in question is in the name of Anastacia Abangan with
certificate of title no. OCT-0-1754 and cadastral lot no. 3616 Cebu CAD.

The Abangan clan filed a case in court as the legal heirs of Anastacia Abangan. The property in question was acquired by Anastacia Abangan sometime in 1918 wherein a decree was issued in her favor (Decree No. N-226189, Cadastral Case No. 14, (GLRO) LRA Cadastral Record No. 9470). Unfortunately, the Abangan clan learned of such property only two years ago by accident of information. Obviously, the property in question has now been overlapped with another title totaling 285,793 square meters with 55 individual transfer certificate of titles (TCTs) and another 203,235 square meters with individual tax
declarations in the name of 73 individuals or new owners totaling 128 individuals and entitles.

The Abangan clan will be facing a tremendous legal obstacle in canceling the over-lapped titles and tax declarations. No land developer in his right mind would touch this property until the overlapping of ownership is first settled in court.

A research made in the archive in Manila revealed that the said property was sold by Anastacia Abangan to Eleuteria Abangan on Oct. 30, 1920. Eleuteria sold it to Adelaida Basay on March 9, 1952. Consequently, in the early 1970s, Basay sold the said lot to a certain local realty corporation.

Although in the US the development and perfection of title insurance has hastened the search and transfer of titles, particularly in urban areas, the necessity to re-establish and re-check the chain of ownership and title encumbrances every time a sale takes place still impedes the use of realty as a readily transferable, liquid asset or form of investment.

Under present operation of the recording acts, deeds and other instruments affecting rights or property in realty are placed on public record. In early days, far fewer instruments were on record; it was, therefore, possible to examine a title with fair speed, and consequent reasonable time and expense.

Now, the more active countries have such voluminous records that the operation has become slow, time-consuming and expensive. This condition is becoming worse as time passes and as more instruments are recorded. Yet, theoretically, it is necessary for each title examination to go back and study the records from the earliest recorded instrument.

As for lot 3616, titles and tax declarations that overlapped Original Certificate of Title No. 0-1754 issued to Anastacia Abangan in 1918 indicate the corrupt practice of government agencies concerned in issuing land titles. The anomaly was done by using a different reference point for the existing lot title.

Obviously, the presence of other claimants of idle titled lots is due to the negligence of absentee lot owners. The failure of the deceased landowner to leave intestate to immediate members of family also encourages other claimants to use statute of fraud over the said land.

The law of real property is complicated and technical. The average person dealing in real estate has no knowledge of these rules and neither has the time to examine the title. In Cebu there are only a few title examiners.

As the records in the country and other offices grow in size and complexity, it is safe to have searches made by someone familiar with them. It is important that title searches be done by people who make a specialty of making up abstracts and supply these to lawyers on order. The lawyer then reads the abstract and certifies the title.

In Cebu, the abstract of the title company is the Osmeña Realty Corp.