Introduction

In Philippine real estate practice, people often use the phrase “authority to sell” to refer to anything from a broker’s listing authority to a full-blown Special Power of Attorney (SPA) empowering someone to sign a deed of absolute sale and receive the purchase price. These are not the same.

At the core, Philippine law asks three questions before a buyer can sleep peacefully:

Who has the right to sell (or dispose) of the property?
If the seller is acting through another person, is that person properly authorized (usually through an SPA)?
Are the documents executed in the proper form—especially notarization—so they are valid, enforceable, and registrable?

This article explains the legal rules and the practical “deal-proofing” requirements under Philippine law.

1) “Authority to Sell” is an Umbrella Term

A. Authority to Sell as a Listing/Marketing Authority

This is the common “Authority to Sell” signed by an owner in favor of a licensed real estate broker (and sometimes a salesperson under the broker). Its purpose is typically to:

authorize the broker to market the property,
look for buyers,
negotiate within limits,
and earn a commission if a sale closes.

Important: A listing/marketing authority does not automatically authorize the broker (or anyone) to sign the deed of sale or transfer ownership on the owner’s behalf. For that, you generally need an SPA (or the owner’s personal signature on the deed).

B. Authority to Sell as Legal Authority to Dispose

This is the authority that matters for transferring title. It may come from:

ownership (registered owner signs),
co-ownership authority (all co-owners sign, or someone authorized by all),
marital property rules (spousal consent),
estate settlement authority (heirs/administrator/executor),
corporate authority (board resolution/authorized signatory),
judicial authority (court approval or guardian authority),
agency through an SPA.

2) Baseline: Who Can Validly Sell Real Property?

A. The Registered Owner (Best Case)

The strongest setup is when the registered owner(s) on the Transfer Certificate of Title (TCT) / Condominium Certificate of Title (CCT) personally sign the deed.

B. Co-Ownership

If property is co-owned (e.g., siblings, business partners):

As a rule, disposition of the entire property requires consent of all co-owners.
A co-owner may sell only their undivided ideal share, not a specific portion, unless partitioned.

C. Marital Property (Family Code)

If the property is part of the Absolute Community or Conjugal Partnership (common for married couples depending on marriage date and regime):

Disposition generally requires spousal consent.
A sale without the required spousal consent (or court authority when applicable) is commonly treated as void under the Family Code provisions on administration and disposition of community/conjugal property.

Practical consequence: Even if one spouse signs a deed or issues an SPA alone, the transaction may be legally defective if the property is community/conjugal.

D. Estate/Inherited Property

If the registered owner is deceased:

Before heirs can validly sell the whole property, authority depends on the status of settlement:
- Executor/administrator may need court authority for certain dispositions in judicial settlement.
- In extrajudicial settlement, all heirs generally must participate or validly authorize an agent.
An heir may sell their hereditary rights/ideal share, but buyers must understand this is not the same as buying a clean, partitioned, titled property in the buyer’s name.

E. Minors / Incapacitated Persons

Selling property belonging to a minor or incapacitated person typically involves:

a legal guardian and
often court approval (depending on circumstances). A simple SPA signed by a parent may be insufficient where court authority is legally required.

F. Corporations / Partnerships / Associations

For corporate-owned real estate:

authority to sell typically comes from the board of directors (or as provided in bylaws),
proven by board resolution and a secretary’s certificate,
with the deed signed by the authorized officer.

3) When an SPA is Required (and What “Special” Means)

A. The Key Rule: Authority Must Be in Writing

Under the Civil Code, an agent’s authority to sell real property must be in writing (commonly referenced in practice as the “written authority” requirement for land sales by agents). Without written authority, the sale made through an agent is legally vulnerable (often treated as unenforceable against the principal unless properly ratified, depending on the defect and facts).

B. Why “Special” Power?

A general statement like “I authorize X to transact” is risky. The Civil Code concept of Special Power of Attorney requires that certain acts—especially selling real property—must be expressly conferred.

Bottom line: If the agent will sign a deed of sale, you want an SPA that clearly and specifically authorizes:

selling the identified property,
signing the deed of absolute sale (and related documents),
receiving the purchase price (or specifying limits),
and handling registration/taxes if needed.

C. SPA vs Deed of Sale

SPA = authority document (principal → agent)
Deed of Absolute Sale / Contract to Sell = the sale contract itself

A buyer should treat the SPA as foundational: if it’s defective, the deed signed by the agent may collapse.

4) Formal Validity of the Sale: Consent, Object, Cause, and Form

A. Essential Elements of a Valid Sale (Civil Code)

A sale is built on:

Consent (freely given, by someone with capacity and authority)
Object (the property must be determinate or determinable)
Cause/Consideration (price certain in money or its equivalent)

If consent is missing (e.g., forged signature, fake SPA, no authority), the deed is void and transfers nothing.

B. Form: Is a Public Instrument Required?

A sale of real property is generally valid even if not notarized as between the parties if the essential elements exist, but form affects:

enforceability under the Statute of Frauds (for certain executory agreements),
the ability to register the deed,
the ability to bind third persons,
evidentiary strength and presumptions.

For practical real estate transfers in the Philippines, notarization is functionally indispensable because registration with the Registry of Deeds requires a notarized (public) instrument and supporting requirements.

C. Delivery and Transfer of Ownership

Even with a valid sale contract, ownership typically transfers upon delivery (actual or constructive). A notarized deed often serves as constructive delivery, but this presumes the deed is valid and executed by an authorized person.

5) Notarization: What It Does—and What It Does Not Do

A. What Notarization Does

A properly notarized document becomes a public document, which:

is admissible without further proof of authenticity,
carries presumptions of due execution,
is generally required for registration of land transfers,
helps prevent fraud (in theory) through identity verification and personal appearance requirements.

B. What Notarization Does Not Do

Notarization does not cure:

lack of authority (e.g., agent had no valid SPA),
lack of spousal consent where required,
forged signatures,
incapacity,
prohibited or void transactions.

A beautifully notarized deed signed by someone unauthorized can still be invalid.

C. Core Notarial Requirements (Philippine Practice)

Philippine notarial rules require, among others:

personal appearance of the signatory before the notary,
competent evidence of identity (typically government-issued IDs),
signing in the notary’s presence (or acknowledgment procedures),
proper notarial entries and seal.

If these are not followed, notarization may be attacked as defective—downgrading the document to a private instrument and raising serious authenticity questions.

D. Defective Notarization: Typical Effects

A defective notarization can lead to:

the document treated as private (loss of public document status),
difficulty or refusal in registration,
higher risk of being invalidated if fraud/forgery is proven,
administrative/criminal exposure for the notary and participants.

6) SPA Validity: The Most Common Deal-Killers

A. Insufficient Specificity

SPAs fail when they do not clearly grant authority to:

sell a specific property, or
sign a deed of sale, or
receive the price (if the agent will receive funds).

Best practice: State property details (TCT/CCT number, location, technical description or lot/unit identifiers) and include clear powers.

B. Missing Required Consents (Spouse / Co-Owners / Heirs)

Even if an SPA is notarized, it can be useless if:

only one spouse executed it for community/conjugal property,
only one co-owner authorized the sale of the whole,
not all heirs participated or validly authorized the sale of estate property.

C. Expired or Revoked Authority

Agency can end by:

revocation by the principal,
death of principal/agent (general rule),
accomplishment of purpose,
expiration (if time-limited),
other legal causes.

Buyers should verify the principal is alive at signing/closing and that the SPA has not been revoked.

D. “Two Levels of Authority” Problems

If an “agent” appoints a sub-agent, check whether:

the SPA allows delegation,
and whether the sub-agent’s authority is properly documented.

E. Forged SPA / Fake Notarization

This is a major risk area in Philippine real estate fraud. Red flags include:

principal supposedly abroad but no consular/apostille authentication when expected,
questionable notary details,
inconsistent signatures,
rushed closing without presenting original SPA.

7) SPA Notarized Abroad: Apostille and Consularization (Practical Rules)

When an SPA is executed outside the Philippines, common acceptable routes include:

Executed before a Philippine Consulate (Philippine consul notarizes). This is typically straightforward for Philippine use.
Notarized by a foreign notary and apostilled (where the Apostille Convention applies between the place of execution and Philippine acceptance). The apostille authenticates the foreign notarization for use in the Philippines.
Notarized and consularized/authenticated (older route used where apostille is not applicable or where specific offices still require consular authentication in certain scenarios).

Practical note: Requirements can vary by Registry of Deeds and transaction context. In real deals, parties often conform to what the Registry of Deeds, banks, and the BIR will accept.

8) Registration and Third-Party Protection: Why Form Matters

A. Registration Is Not Just Bureaucracy

For titled land, registration:

protects the buyer against many third-party claims,
is crucial in disputes like double sales,
strengthens good faith protections (depending on the facts).

B. Double Sale Risk (Civil Code Concept)

If the same property is sold to two buyers, priority often turns on:

registration in good faith (for immovables),
or possession/title as rules apply.

This is why buyers insist on registrable documents and timely registration.

9) Transaction Structures and Authority Implications

A. Contract to Sell vs Deed of Absolute Sale

Contract to Sell: seller retains ownership until conditions are met (often full payment). Authority to sign still matters.
Deed of Absolute Sale: intended to transfer ownership upon delivery/registration.

If an agent signs either, the SPA must match the act being done.

B. Installment Sales / Financing

If bank financing is involved, banks often impose stricter standards:

updated SPA language,
identity verification,
sometimes requiring the principal to appear or to provide stronger authentication.

C. Authority to Receive Payment

If the agent will receive money, the SPA should clearly state:

whether the agent may receive full payment,
issue receipts,
deposit funds,
and sign tax and transfer documents.

Absent clear authority, principals may later deny receipt.

10) What a “Good” SPA to Sell Usually Contains

A robust SPA for sale of real property commonly includes:

Full names, citizenship, civil status, addresses of principal and agent
Clear property identification:
- TCT/CCT number
- location
- lot/unit identifiers
- technical description reference (or attach as annex)
Express authority to:
- negotiate and finalize sale
- sign the deed of absolute sale / contract to sell
- sign ancillary documents (acknowledgments, undertakings, clearances)
Price authority:
- fixed price or minimum floor price
- authority to accept offers within a range
Payment authority:
- receive payment (or limit it)
- issue receipts
Tax/registration authority:
- represent before BIR, LGU, Registry of Deeds, assessor, HOA/condo corp
Time validity (optional but helpful)
Substitution/delegation clause (only if intended)
Specimen signature (helpful in practice)
Proper notarization, with correct details and attachments (IDs, etc. as needed)

11) Buyer Due Diligence Checklist (Authority-Focused)

Before paying substantial money, a buyer should verify:

Title authenticity (certified true copy from Registry of Deeds)
Registered owner identity matches seller/principal
Marital status and spousal consent (if applicable)
Co-owner/heir participation (if applicable)
SPA authenticity:
- original or certified true copy
- proper notarization/consular/apostille route if executed abroad
- confirm notary commission details (practically done through reasonable verification steps)
Principal is alive and SPA not revoked near closing
Tax declarations, real property tax status, and encumbrances
Possession and occupancy (who is actually in control)
IDs and signature matching
Payment controls (escrow, manager’s check payable to principal where possible)

12) Common Scenarios and Legal Outcomes

Scenario 1: Broker has an “Authority to Sell” but no SPA; broker signs the deed

High risk. A listing authority is typically not enough to sign the deed. Without a valid written authority specifically empowering the signing of a deed of sale, the deed can be attacked as unauthorized.

Scenario 2: Agent has an SPA, but it’s not notarized

The SPA may still evidence authority as between principal and agent, but:

registrability and acceptance by institutions become problematic,
authenticity is easier to challenge,
many Registries of Deeds will require a notarized SPA (or consular/apostilled equivalent).

Scenario 3: SPA is notarized, but spouse never consented

If the property is community/conjugal and spousal consent is legally required, the sale can be void despite notarization.

Scenario 4: Heirs sell without settlement/authority

If not all heirs participate/authorize, the transfer of the whole property is vulnerable. Buyer may end up with litigation or only rights against the sellers, not clean title.

Scenario 5: Forged deed or forged SPA

Forgery means no consent; the deed is generally void and conveys nothing. Notarization does not validate forgery.

13) Practical Drafting Tips (To Avoid Future Lawsuits)

Put the TCT/CCT number and property identifiers in the SPA, not just “my property in ____.”
Specify price authority to prevent disputes (“not lower than PHP ___”).
State whether the agent can receive money and issue receipts.
If principal is married, address spousal consent explicitly.
For inherited properties, resolve heirship/settlement and document authority cleanly.
Avoid “open-ended” SPAs that invite abuse; use time limits and scope limits where appropriate.
Use payment methods that reduce fraud: checks payable to the principal, escrow, and document release protocols.

14) Quick FAQ

Is notarization required for a valid sale of real property?

A sale can be valid between parties if essential elements exist, but notarization is practically required for registration and strong enforceability against third parties, and it provides evidentiary advantages.

Is an SPA always required to sell real property?

Only if someone is signing on behalf of the owner. If the owner signs personally, no SPA is needed.

Can a broker sell without an SPA?

A broker can market and negotiate if authorized, but signing the deed and transferring title generally requires an SPA (or the owner’s signature).

Does a notarized SPA guarantee legitimacy?

No. Notarization helps, but it does not cure missing consents, lack of authority, or forgery.

Can an SPA be revoked?

Yes, generally, unless coupled with an interest in certain contexts. Buyers should treat revocation risk seriously and close/record promptly.

Closing Note

In Philippine real estate, the difference between a clean transfer and a legal disaster often lies in authority and form: the right person must sign, with the right permissions, in a registrable and verifiable way. The safest transactions are those where the chain of authority is simple, documented, and consistent with marital, co-ownership, estate, and corporate rules—supported by proper notarization and timely registration.