Hatian ng Lupa

[puswekster]

Mga Sirs, sana matulungan nyo ako..
My grandfather passed away last year. My father has 4 other siblings, 1 of which is from the US. Ung apat including my father is currently occupying/using most of the parcels of land. Sa tatay ko is in a commercial area around 500- 1000 sq.m. Ung sa 3 magkakapatid are agricultural land on the average of 10 hectares or more.

Lately dumating ung eldest sibling ng tatay ko with the "purpose" of consolidating all the properties left by my grandparents and to subdivide it equally to the five of them. She has already asked the 3 other sibling to grant her the ability to process the papers for the said purpose.

The problem is this.
1. When she found out the assesed value of the commercial land currently leased by my father to several tenants, she has decided without consulting my father to evict the tenants and put up a new building to serve as her residential/commercial building by the end of this year.
2. The other lots occupied by the other siblings will not be touched since according to her the lands that are currently occupied/ used will not be touched.

The questions are these:
1. Does she have the authority to do this to my father based solely with the written permission of their 3 other siblings to do this?
2. what are our possible course/s of action in this regard. should we wait for her to actually do the eviction and construction of the building?

I know this sounds a little bit complicated and more detailed study of a lawyer is needed but for now that we are still trying to raise money for paying one,any advise would help.

Thanks in advance.

[karlkutu]

RULE 74

Summary Settlement of Estate

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filled in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the nest succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

Section 2. Summary settlement of estate of small value. — Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interest persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their

guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

Section 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance with the provisions of the preceding section, my require the distributees, if property other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

Section 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.

Section 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.

[karlkutu]

Pwede po paghati hatiian extrajudicially, pero sa tingin ko dpo pwede sa kwento nyo. kaya pwede po ang solusyon ay an action for partion. Wag po nyo hintayin na mag construct sya ng kung anu ano kasi po meron tayong principle sa possession na ibig sabihin ang presumption po na  nagmamay ari ng lupa ay kung sinu ang nakaposition. at kung sa mga kaso po ng partion kinokonsider po ng korte yung mga dati nang nakatayo or improvement or mga dati nang nakapag patayo ng bahay na more or less mag maliit yung damage kung sakaling kailngang gibain kung anu mang inintroiduce na improvement.

[puswekster]

Maraming salamat po.. In case po sa letter authorizing her to consolidate the lands for subdivision/distribution na pirmado ng iba nilang mga kapatid,binding po ba ito sa tatay ko considering that hindi sya nakapirma?

[karlkutu]

yes kasi majority ng heirs ay pumirma. i think hindi yun ang issue, diba kung sakali man sya ang administartor at hindi favorable yung father mo sa plan of partition pwede parin nya file ng action for partition.
at kung sya ang administrator at hinati nya yung estate at gusto ng father mo no prob db.

[puswekster]

maraming salamat po sa tulong sir memento mori...

[charliehouse]

Did your father leased the property or is it the tenants who leased it? Is the leased registered?

1. Yes, kasi majority lang ang kailangan though your father can object.
2. No, kasi it might prejudice your father later on.

[puswekster]

Hi Sir Charlie,

It is the tenants who leased it.

Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)

2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?

[karlkutu]

Hi Sir Charlie,

It is the tenants who leased it.

Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)

2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?

Sir, lahat po ng will kailangang ma probate. At hindi po ibig sabihin pwede nila sabihin lang na ganun. Dinala po ba nila sa korte yung will? pag hindi nila dinala sa korte pwede nating pilitin na ipa probate nila yan.

[charliehouse]

Hi Sir Charlie,

It is the tenants who leased it.

Another few questions pa po pala..
1. Since his other siblings has appointed their eldest sister as the consolidator/administrator of the properties, does it remove my father's right to continue administering/ the property even though yun lng ang only property that she overtook since yung mga ricelands na sinasaka ng iba nilang kapatid will continue to be managed/administered by the ones who currently "own" it? (I might be paranoid, but the way I see it is that, she just wants to remove the current tenants and construct her own building so that she could claim that she is the one who made improvements on the said lot thereby depriving my father of getting income from the said property.)

2. They are claiming, that the said property was given to the eldest sibling by mother who died over 20 years ago based on a will. My question is, if the sharing is inequitable, can we question the will's legitimacy?

Is the leased registered?

may proof ba sila ng will? a will or a donation (i.e those who donated everything they have para lang di nila maipamana sa kanilang itinakwil na anak) should not undermine or prejudice the compulsory share given by law to the descendants.

My advice to you is that you should file a judicial settlement of estates para ang korte na ang magtatakda sa shares.

[karlkutu]

Tama si sir charlie. Will man yan or donation dapat sundin nila proseso. May provision sa batas na tamang hatian sir kahit pa may will. Meron tayong tinatawag na legitime.

[puswekster]

Is the leased registered?

may proof ba sila ng will? a will or a donation (i.e those who donated everything they have para lang di nila maipamana sa kanilang itinakwil na anak) should not undermine or prejudice the compulsory share given by law to the descendants.

My advice to you is that you should file a judicial settlement of estates para ang korte na ang magtatakda sa shares.

Sir Charlie,

Ano po yung ibig sabihin na registered yung lease? Meaning po ba nun eh kung my notarized contract ung lease?

[karlkutu]

Sir Charlie,

Ano po yung ibig sabihin na registered yung lease? Meaning po ba nun eh kung my notarized contract ung lease?

Sir Charlie sagutin ko na ha...pag ang lease contract po ay tatakbo sa isang taon or higit pa kaylangan po ito ipagerister. Ito po ay ipanotaryo at iattach sa titulo ng lupa sa register of deeds. Ibig sabihin po real property po ang subject ng lease contract.

[puswekster]

Maraming salamat Sir Memento Mori and Sir Charlie sa advices.. Will follow this up with my father and come back in case there are things that needs to clarify pa..

[charliehouse]

Maraming salamat Sir Memento Mori and Sir Charlie sa advices.. Will follow this up with my father and come back in case there are things that needs to clarify pa..

Welcome sir, Pag may iba ka pang katanungan sir post mo agad hehe