Saturday, May 22, 2021

Contract to sell - no transfer of ownership yet

See -

"x x x.

It is important to emphasize that the contract you entered with a realty is a “contract to sell.” There is no transfer of ownership yet because ownership is transferred only to the buyer upon delivery or the execution of a Deed of Sale, and there is full payment of the total consideration. This is in consonance with the New Civil Code of the Philippines which state that:

“Article 1496. The ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee. (n)

“Article 1477. The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. (n)

“Article 1478. The parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price. (n)”

Since the owner of the unit is the developer, the latter may furnish the same as a guaranty for its loan. This finds support in the decision of the court in Philippine National Bank vs Dee, et al. (GR 182128, Feb. 19, 2014), where the Supreme Court, speaking through Associate Justice Bienvenido Reyes, stated that:

“It must be stressed that the mortgage contract between PEPI and the petitioner is merely an accessory contract to the principal three-year loan takeout from the petitioner by PEPI for its expansion project. It need not be belaboured that [a] mortgage is an accessory undertaking to secure the fulfillment of a principal obligation, and it does not affect the ownership of the property as it is nothing more than a lien thereon serving as security for a debt.

“Note that at the time PEPI mortgaged the property to the petitioner, the prevailing contract between respondents PEPI and Dee was still the Contract to Sell, as Dee was yet to fully pay the purchase price of the property. On this point, PEPI was acting fully well within its right when it mortgaged the property to the petitioner, for in a contract to sell, ownership is retained by the seller and is not to pass until full payment of the purchase price. In other words, at the time of the mortgage, PEPI was still the owner of the property.

Thus, in China Banking Corporation v [s] Spouses Lozada, the Court affirmed the right of the owner/developer to mortgage the property subject of development, to wit: [Presidential Decree]…957 cannot totally prevent the owner or developer from mortgaging the subdivision lot or condominium unit when the title thereto still resides in the owner or developer awaiting the full payment of the purchase price by the installment buyer. x x x”

Applying the above-quoted decision in your situation, a realty is still the owner of the property which is the object of the contract to sell. The owner has the right to mortgage the same even without your consent, however, the mortgage is subject to the approval of the Housing and Land Use Regulatory Board.

x x x."