OWNERSHIP & RIGHTS
In general, foreign individuals or corporations cannot privately own land in the Philippines. However, foreign investors can acquire up to 40% of the equity in a domestic company that owns land in the Philippines. Foreigners are also allowed to purchase a condominium unit, provided that total foreign ownership of the condominium corporation does not exceed 40%. Under the Investors' Lease Act of 1993, foreign investors may lease land for certain industrial and agricultural projects for a straight period of 50 years, renewable for another 25 years.
The buying procedure for an off-plan property is in general as follows:
1. Reserve the property
Once you have chosen your ideal property, a reservation agreement is to be signed with the seller and a reservation deposit needs to be paid (will form part of the purchase price).
2. Due Diligence
Before signing the preliminary purchase contract (off-plan property) or property sale and purchase contract, it is important that to carry out a due diligence check on the seller as well as the subject property. The due diligence checklist may include:
the company registration certificate (if the seller is an entity) or proof of seller's identity (if the seller is a private individual)
proof of a personal who is duly authorised to sign all legal documents (if the seller is an entity or an attorney of the seller)
the title certificate for the land
the planning permission/consent (off-plan property)
the building licence (off-plan property)
all other relevant permissions for the commencement of the project (off-plan property)
any lien, debt, development finance, or encumbrances against the land and/or the project
at least one of bank guarantee, insurance and/or assurance ensure the completion of the project or an escrow system to provide security for the buyer's property payments (off-plan property)
an independent quantity surveying (QS) system during the construction period (off-plan property)
The above due diligence check is more appropriate to be done through a local law firm or conveyancing lawyer.
3. Exchange Contract
Before singing preliminary purchase contract, buyers are suggested to consult a local conveyancing lawyer on analyse the risk, any unfavourable terms of the contract. Upon signing of the contract, first instalment/payment is often required.
4. Deed of Sale
Deed of sale is to be ratified by notary public.
4.1 Paying Taxes
a. Obtain a certified true copy of latest tax declaration from the Assessor's Office
b. Payment of Documentary Stamp Tax and Capital Gains Tax at an authorized bank
c. Obtain tax clearance (or Certificate Authorizing Registration) from the Bureau of Internal Revenue
d. Obtain a tax clearance certificate of Real Estate Taxes from the Treasurer's Office of Manila
e. Payment of transfer tax at the Treasurer's Office
f. Apply with the Assessor's Office for the issuance of a new tax declaration over the building in the name of buyer10
4.2 Apply for registration with the register of deeds, title transfer
In the Philippines, the Department of Environment and Natural Resources (DENR) through the Lands Management Bureau (i.e. Lands Management Services), is mandated to administer and manage public lands, government owned lands and all other lands not placed under other government agencies by virtue of Comprehensive Agrarian Reform Law.
There are two processes of acquiring title, judicial and administrative. In judicial titling there are two proceedings, one is ordinary judicial proceeding (governed by Property Registration Decree, Presidential Decree 1529) and the cadastral proceedings (governed by the Cadastral Act, Act 2259). In both cases, it is the Court that issues order of registration.
There are two types of Cadastral System in the Philippines, one is Graphical Cadastre and the other is Numerical or Regular Cadastre. All lands within a Cadastral Survey Project, in the absence of titles are presumed public lands.11