In the Philippines, the death of a property owner often leaves heirs wondering how to formalize their ownership, especially when the land in question is "untitled"—meaning it is not yet registered under the Torrens System (no Original Certificate of Title or Transfer Certificate of Title).
The short answer is yes. You can execute an Extrajudicial Settlement (EJS) for untitled land, provided specific legal requirements are met.
Understanding "Untitled" Land
"Untitled" does not mean "unowned." In the Philippine context, this usually refers to land covered only by a Tax Declaration. While a Tax Declaration is not conclusive proof of ownership, it is a "strong indicia of possession" and serves as the basis for the government to recognize a person’s claim over a property for taxation purposes.
Because the land is not yet registered, the process involves settling the rights and interests of the deceased over that specific parcel of land.
Requirements for an Extrajudicial Settlement
Under Rule 74, Section 1 of the Rules of Court, heirs may settle an estate without going to court if the following conditions are met:
- No Will: The deceased left no last will and testament.
- No Debts: The deceased left no outstanding debts (or all debts have been paid).
- Agreement: All heirs are of legal age (or represented by judicial/legal guardians) and are in total agreement on how the property will be divided.
- Public Instrument: The settlement must be written in a public instrument (notarized) and filed with the Register of Deeds.
The Process for Untitled Land
1. Preparation of the Deed
The heirs must draft a Deed of Extrajudicial Settlement of Estate. This document must specifically describe the untitled land, citing its boundaries, area, and the Tax Declaration number. If the heirs decide to waive their shares in favor of one person, the document becomes a Deed of Extrajudicial Settlement with Waiver of Rights.
2. Payment of Estate Tax
Before the settlement can be legally recognized or the Tax Declaration transferred, the heirs must settle the Estate Tax with the Bureau of Internal Revenue (BIR).
- The BIR will require the Deed of EJS, the Death Certificate, and the Tax Declaration.
- Once paid, the BIR will issue a Certificate Authorizing Registration (CAR). This is a vital document; without it, the Register of Deeds cannot process any transfer.
3. Publication Requirement
Even for untitled land, the law requires that the settlement be published in a newspaper of general circulation once a week for three consecutive weeks. This serves as notice to any creditors or unknown heirs who might have a claim against the estate.
4. Filing with the Register of Deeds
The notarized Deed, the Affidavit of Publication, and the BIR CAR must be filed with the Register of Deeds (ROD) where the land is located. For untitled land, the ROD maintains a "Primary Entry Book" for unregistered lands under Act No. 3344.
5. Transfer of Tax Declaration
Once the ROD has recorded the EJS, the heirs go to the Assessor’s Office of the municipality or city to cancel the old Tax Declaration in the name of the deceased and issue a new one in the name of the heirs.
Important Considerations
The "Two-Year" Rule (Section 4, Rule 74)
Any extrajudicial settlement is subject to a two-year lien. This means that for two years after the settlement, any heir or creditor who was excluded or deprived of their lawful participation in the estate may come forward and contest the settlement. A notation regarding this lien is usually placed on the document or the new tax record.
Why Settle an Untitled Land?
Settling the EJS for untitled land is a prerequisite for Titling. You cannot apply for a Free Patent or Judicial Titling (Original Registration) in your own name if the underlying claim (the Tax Declaration) is still in the name of a deceased person. The EJS bridges the "chain of authorization" from the deceased owner to the current claimant.
Risk of Overlapping Claims
Since untitled land lacks a technical description verified by a court-ordered survey (Torrens Title), there is a higher risk of boundary disputes or overlapping claims. Heirs should ensure a survey is conducted by a licensed Geodetic Engineer before finalizing the partition to avoid future litigation with neighbors.
Summary Table
| Requirement | Description |
|---|---|
| Document | Notarized Deed of Extrajudicial Settlement |
| Taxation | Settlement of Estate Tax and issuance of BIR CAR |
| Notice | Publication in a newspaper for 3 consecutive weeks |
| Registration | Filing under Act 3344 (Unregistered Land) at the ROD |
| Final Step | Issuance of a new Tax Declaration at the Assessor's Office |