Is a survey plan necessary for identification of land?

In recovering a parcel of land, it is essential that the property must be identified.

This is in consonance with Article 434 of the New Civil Code of the Philippines which states that: "In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant's claim. (n)"

The certificate of title containing the technical description may not be sufficient to prove the identity of your land. This finds support in the case of Gemina vs. Heirs of Espejo Jr. (GR 232682, Sept. 13, 2021) where the Supreme Court stated that:

"If only to shed light on a few questions of law to serve as guide, Article 434 of the Civil Code is controlling in this case. It provides that '[i]n an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant's claim.' It is hornbook doctrine that the entitlement to the possession of real property belongs to its registered owner. However, the registered owner must seek proper judicial remedy and comply with the requisites of the chosen action in order to recover possession of a real property from the occupant who has actual and physical possession thereof. Furthermore, it must be emphasized that the plaintiff must not bank on the weakness of the defendant's title, hence, must establish his title and the identity of the property because of the possibility that neither the plaintiff nor the defendant is entitled or even more the true owner of the property in dispute.

"It appears on record that the identity of the subject property was ascertained by the trial court and the appellate court based on the technical description stated in TCT 93309 and the Judicial Affidavit of Ma. Teresa R. Espejo which merely identified TCT 93809 as one registered in the names of Gerardo and Nenafe. To our mind, the technical description that provides for the metes and bounds of a parcel of land cannot stand alone, much more be considered as foolproof evidence exactly pointing to the subject property. The identity of the disputed land sought to be recovered or of the subject property in this case may be established through a survey plan of the said property. Absent such evidence or any other proof to such effect. We cannot subscribe hook, line and sinker to the conclusion that the subject property had been sufficiently identified."

Applying the above-cited decision, the technical description as reflected in the certificate of title (Torrens Title) which provides for the metes and bounds of the land cannot stand alone in an action for recovery of the same. The identity of the land may be established through a survey plan of the property.

Source: Manila Times

What do you do when your land titles are lost?

In the Philippines, land titles are issued under the Torrens System. The Torrens system of registration governs the issuance of titles covering real properties in the Philippines.

These include privately owned land of whatever kind – agricultural land, commercial land, industrial land, and other real properties that can be privately owned. Condominium units are also issued titles under the same system as other real properties.

The importance of this piece of paper cannot be underscored enough. The Supreme Court, in numerous occasions, ruled that a Torrens title is the best evidence or proof of ownership of real property.

Land titles issued under the Torrens system are printed in security paper, with many security features to avoid tampering and fraud. The fact that it is printed in paper is, in itself an indication, that the document is not likely to last. As will all documents printed on paper (including money), land titles are not perpetual. Despite all efforts to keep its integrity, this very important piece of documentation is also susceptible of getting misplaced, lost, or even destroyed.

What do you do when a land title is lost, destroyed, or cannot be found? The answer lies in Section 109 of Presidential Decree No. 1529. It provides:

“Sec. 109. Notice and replacement of lost duplicate certificate. – In case of loss or theft of an owners duplicate certificate of title, due notice under oath shall be sent by the owner or by someone in his behalf to the Register of Deeds of the province or city where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or destroyed, or cannot be produced by a person applying for the entry of a new certificate to him or for the registration of any instrument, a sworn statement of the fact of such loss or destruction may be filed by the registered owner or other person in interest and registered.

Upon the petition of the registered owner or other person in interest, the court may, after notice and due hearing, direct the issuance of a new duplicate certificate, which shall contain a memorandum of the fact that it is issued in place of the lost duplicate certificate, but shall in all respects be entitled to like faith and credit as the original duplicate, and shall thereafter be regarded as such for all purposes of this decree.”

First, in the cited provision, the owner of the land must execute a Notice of Loss, received by the Registry of Deeds of the province, city or municipality, that has jurisdiction over the property identified by the lost title. Obviously, the land title must be actually lost, and not in possession of another, such as a buyer or a mortgagee bank.

In fact, in the case of Camitan vs. Court of Appeals, G.R. No. 128099, 20 December 2006, the Supreme Court held:

“… Thus, before a duplicate certificate of title can be replaced, the petitioner under the foregoing provision must establish that the duplicate certificate was lost or destroyed. This Court has consistently held that a trial court does not acquire jurisdiction over a petition for the issuance of a new owner’s duplicate certificate of title, if the original is in fact not lost but is in the possession of an alleged buyer. In other words, the fact of loss of the duplicate certificate is jurisdictional.”

Since the Notice of Loss must be annotated in the title itself, the concerned Registry of Deeds must have the duplicate original of the title itself on file in their records. Otherwise, a different procedure altogether must be used to secure a new Owner’s Duplicate Original of the lost title.

These, together with a Certified True Copy of the lost title itself, must be presented in a Petition filed with the Court, having jurisdiction over the property covered by the lost title.

When the petition is heard, the court will of course inquire how the title was lost, and will require the registered owner to testify and prove his or her ownership and other matters to justify the claim.

If the proceedings are successful, the court will render judgment ordering that a new Owner’s Duplicate Original of the lost, missing or destroyed title, be issued. Note that the new title that will be exactly the same as the lost document. Hence, a prayer for the issuance of the lost title in the name of another person, or for the correction of certain errors or mistakes in the lost title, cannot generally be made in the same case.

What is the the meaning of "free patent"?

The answer is found in the provisions of Act 141, otherwise known as the "Public Land Act" and Republic Act 10023, otherwise known as the "Residential Free Patent Act of 2009." Succinctly, Section 11 of the Public Land Act indicates that free patent is a mode of disposition of public agricultural land whereby an incomplete or imperfect title over a parcel of land is administratively legalized. For brevity, Section 11 of the afore-mentioned law reads:

"SECTION 11. Public lands suitable for agricultural purposes can be disposed of only as follows, and not otherwise:

"(1) For homestead settlement

"(2) By sale

"(3) By lease

"(4) By confirmation of imperfect or incomplete titles:

"(a) By judicial legalization

"(b) By administrative legalization (free patent)." (Emphasis and underscoring supplied)

Pursuant to the Residential Free Patent Act of 2009, free patent can now be applied to public agricultural lots zoned as residential land.

Consequently, in order to qualify for residential free patent, the requirements under Section 1 and Section 3 of the Residential Free Patent Act must be satisfied, viz.:

"Section 1. Qualifications. - Any Filipino citizen who is an actual occupant of a residential land may apply for a Free Patent Title under this Act: Provided; That in highly urbanized cities, the land should not exceed two hundred (200) square meters; in other cities, it should not exceed five hundred (500) square meters; in first class and second class municipalities, it should not exceed seven hundred fifty (750) square meters; and in all other municipalities, it should not exceed one thousand (1,000) square meters; Provided, further, That the land applied for is not needed for public service and/or public use.

"Section 3. Application. - The application on the land applied for shall be supported by a map based on an actual survey conducted by a licensed geodetic engineer and approved by the Department of Environment and Natural Resources (DENR) and a technical description of the land applied for together with supporting affidavit of two (2) disinterested persons who are residing in the barangay of the city or municipality where the land is located, attesting to the truth of the facts contained in the application to the effect that the applicant thereof has, either by himself or through his predecessor-in-interest, actually resided on and continuously possessed and occupied, under a bona fide claim of acquisition of ownership, the land applied for at least ten (10) years and has complied with the requirements prescribed in section 1 hereof."

Thus, applying the preceding provisions of law, a Filipino citizen who is in actual possession/occupation for at least 10 years of an alienable and disposable public land zoned as residential lots may submit an application for the issuance of free patent. In this connection, a qualified applicant with a complete application may file before the Community Environment and Natural Resources Office (Cenro) whose jurisdiction covers the area where the parcel of land subject of the application is situated (See Section 2.17 of DENR Administrative Order 12-10).

Source: The Manila Times