Executing a Deed of Sale for an Unsurveyed Land Portion in the Philippines

A practical, end-to-end legal guide (Philippine context)

Quick definition. A “sale of an unsurveyed portion” means the owner is selling only a part of a larger parcel, but that part has no approved technical description (no metes-and-bounds, no DENR-approved subdivision plan) at the time of sale. This is common when carving out a backyard lot, roadside strip, or carve-outs for heirs.

1) First principles: what the law requires for land sales

Form of the contract. A sale of real property must be in a public instrument (notarized deed) to be valid against third persons and registrable. Delivery is effected by execution and registration; between the parties, the sale is perfected by consent on the thing and the price.
Registrability vs. validity. You may validly bind each other with a detailed, notarized Deed of Sale even before the portion is surveyed, but transfer of title (or tax declaration) will not be completed until the portion exists on paper as its own lot with a technical description.
Torrens vs. unregistered land.
- If the mother land is titled, the Register of Deeds (ROD) will require an approved subdivision plan to issue a new title for the child lot.
- If the land is untitled but privately owned (tax-declared), LGU offices can transfer the tax declaration on the basis of a survey and notarized deed; judicial or administrative original registration is a separate step.
Public domain & restricted titles. Land still forming part of the public domain (no patent/free patent, no private title) is not saleable. Some patents (e.g., homestead, residential/agricultural free patents) and CLOA lands carry non-alienation periods and other DAR/NCIP restrictions; check title annotations and special laws before proceeding.

2) Core due diligence (buyer and seller)

Run these before drafting any deed:

Identify the property
- Get a copy of the Owner’s Duplicate Title & latest Certified True Copy (if titled), or Tax Declaration(s) and Lot Sketch/Plan (if untitled).
- Engage a Licensed Geodetic Engineer (GE) to locate the boundaries of the intended portion and the mother lot.
Encumbrances & capacity to sell
- Review encumbrances (mortgages, adverse claims, liens, tenancies).
- Verify spousal consent (community/conjugal property; family home).
- If the seller is a corporation, secure Board Resolution/Secretary’s Certificate.
- If the property is agricultural, check DAR rules (retention/land size limits, conversion, DAR clearance).
- For ancestral domains/lands, check NCIP requirements.
- If acquired via patent/CLOA, confirm no inalienability period and DAR/ROD permit to transfer.
Access & easements
- If the portion will be landlocked, plan for a right-of-way.
- Respect legal easements (along rivers, shorelines) and utility easements.
Taxes & valuations
- Obtain BIR zonal values and assessor’s fair market value (to anticipate CGT/CWT, DST, LGU transfer tax).
- Ensure TIN of both parties.
- Get Real Property Tax (RPT) clearance and the last OR.

3) Why a survey (and which one) is non-negotiable

You cannot transfer a “floating” part. You need a DENR-approved plan and technical description:

Subdivision Survey (most common): carves the mother lot (e.g., Lot 123-A) from Lot 123; results in a Psd/Prs/… plan, bearings & distances, area.
Parcellary/Consolidation-subdivision: if joining or re-carving multiple lots.
Relocation: re-establishes corners of an already defined lot; not sufficient when creating a new portion.

Process with a Geodetic Engineer (GE)

Ground survey of the mother lot and the intended portion.
Draft the proposed subdivision plan, technical descriptions, and lot data computations.
Secure owner’s consent and submit to DENR/LMB/CENRO (and ROD, if needed) for approval.
Receive approved plan bearing the official survey number and stamped technical description.

Pro tip: If timing is tight, execute a Contract to Sell (not a deed) or a Deed of Conditional Sale with Undertaking to Subdivide and Register, making survey approval and issuance of eCAR/title conditions for final payment/transfer.

4) Document paths: titled vs. untitled

A) Mother land is Titled (Torrens)

Target output: a new separate title (TCT/OCT) for the buyer’s portion.

Typical sequence

Subdivision plan approved by DENR (with technical descriptions).
Notarized Deed of Sale describing the portion by its approved lot name/number and technical description.
BIR One-Time Transaction (ONETT): pay CGT (generally 6% of higher of price or zonal value for capital assets) or CWT (if seller’s ordinary asset), DST (generally 1.5%), secure eCAR.
LGU Transfer Tax (commonly 0.5% province / up to 0.75% highly urbanized cities) and RPT update.
ROD: present owner’s duplicate title, approved subdivision plan, technical description, deed, tax clearances, eCAR, transfer tax, DST receipts, and other ROD checklist items.
New title issued to buyer for the child lot; residual title remains with seller for the remainder.

B) Land is Untitled (tax-declared/private)

Target output: (i) transfer of tax declaration for the portion, and (ii) optional original registration (judicial or administrative) if buyer wants Torrens title.

Typical sequence

Subdivision survey approved (portion gets its own technical description).
Notarized Deed of Sale with full metes-and-bounds; attach plan and GE cert.
BIR ONETT (CGT/CWT, DST) and eCAR issuance (BIR still taxes sales of real property whether titled or not).
Assessor/Treasurer: issue new tax declaration for buyer’s portion; update RPT.
If desired, commence original registration case (separate process; evidentiary requirements apply—open, continuous, exclusive, notorious possession, etc.).

Caution: A tax declaration is not a title. It is evidence of possession and assessment for tax purposes. If you need marketable title, plan for original registration.

5) Tax & fee overview (high-level)

Capital Gains Tax (CGT): generally 6% of the higher of stated price or zonal/assessed value (for capital assets).
Creditable Withholding Tax (CWT): applies when the seller holds property as an ordinary asset (e.g., real estate dealer/corporation); rates vary.
Documentary Stamp Tax (DST): generally 1.5% of the higher of consideration or fair market value.
Local Transfer Tax: typically 0.5% (province) up to 0.75% (HUCs).
Registration fees: per ROD schedule (varies by value).
Incidental: GE professional fees, notarization, certified copies, annotation fees, possible zoning or DAR/NCIP clearances.

Who pays? By default rules, seller pays CGT/CWT, buyer pays DST, transfer tax, and registration, but the parties may re-allocate in the deed.

6) Drafting the Deed (unsurveyed portion → best practice)

Because registrability hinges on survey approval, use one of these structures:

Option 1: Contract to Sell (survey first, deed later)

Buyer pays earnest money or deposit.
Seller undertakes subdivision survey and approvals within a fixed period.
Closing (full payment and Deed of Absolute Sale) upon delivery of eCAR-ready documents (approved plan, technical descriptions, tax clearances).

Option 2: Deed of Conditional Sale (single document)

Sale is subject to conditions precedent: approval of subdivision, BIR eCAR issuance, ROD acceptance.
Provide escrow/holdback tied to milestones (e.g., release 40% on BIR eCAR, balance on issuance of new title).
Include automatic rescission or penalties if conditions fail within the time frame.

Option 3: Deed of Sale of a Portion (with attached approved plan)

Use when the approved plan is already in hand.
The description section must mirror the technical description verbatim and cite the survey number and mother title.

Key clauses to include (whichever option you choose)

Property description
- Mother title details (OCT/TCT No., registry, area).
- Identification of the portion by lot number and technical description (or, if pending, by a survey sketch + GE’s certification, with a covenant to replace with the approved technical description for registration).
Purchase price & payment schedule
- Clear milestones (survey approval, eCAR, new title).
- Escrow/holdback mechanics.
Warranties & disclosures
- Ownership, authority, no hidden liens, possession free from tenancies.
- Compliance with DAR/NCIP/zoning laws and absence of alienability restrictions.
Taxes & fees allocation
- Who pays CGT/CWT, DST, transfer tax, registration, GE fees.
Turnover & possession
- When buyer takes possession; whether structures/trees are included.
Right-of-way / access
- If needed, grant/constitute an easement with metes-and-bounds and width.
Conditions precedent & long-stop date
- Exact documents required; drop-dead date after which either party may rescind with defined remedies.
Default & remedies
- Liquidated damages, forfeiture/return of deposit consistent with civil code rules on penal clauses and earnest money.
Special consents
- Spousal consent; mortgagee/lienholder consent; HOA/condo corp if applicable.
Notarization & registration covenant
- Parties agree to cooperate in BIR/ROD/LGU processing and to sign additional documents as needed.

7) Notarization, authority, and execution hygiene

Notary competence. A deed must be notarized by a commissioned notary public within the same city/province of execution or where any party resides.
Identity & capacity. Bring government IDs; ensure the signatories are of legal age and authorized.
Agents & SPAs. If signing by attorney-in-fact, present a notarized SPA; if executed abroad, it should be apostilled/consularized.
Witnesses. Not strictly required for a deed of sale, but prudent—especially for untitled property or when attaching hand-drawn sketches pending approval.
Annexes. Attach approved subdivision plan, technical description, GE certificate, mother title copy/CTC, tax receipts, and any consents/clearances you cite.

8) BIR, LGU, and ROD processing checklist (portion sales)

BIR (ONETT/eCAR)

Notarized deed (or conditional sale/contract to sell with closing deed later).
TINs of both parties; IDs.
Owner’s duplicate title (CTC if needed) or tax declaration (for untitled).
Approved subdivision plan & technical descriptions (or GE interim docs if allowed at your RDO, though eCAR typically requires the approved plan for the specific lot).
Proof of value (zonal value printout, assessor’s certification).
Tax clearances and latest RPT OR.
Payment of CGT/CWT and DST → issuance of eCAR.

LGU

Transfer tax payment.
Update tax declaration for the new lot; cancel old TD for area sold (or reduce area for seller’s remainder).

ROD (for titled land)

Owner’s duplicate title; approved subdivision plan; technical descriptions.
Deed + eCAR + DST/transfer tax receipts.
Clearances/consents (mortgagee, DAR/NCIP, etc.).
Pay registration fees; secure new TCT/OCT for the buyer’s lot and amended title for the seller’s remainder.

9) Special land types & red flags

Agricultural land: Observe minimum lot sizes (zoning), tenancy rights, DAR clearance, possible conversion requirements.
CLOA/EP lands: Transfer often needs DAR approval; many titles have strict alienation prohibitions for a period.
Free patents (residential/agricultural): Beware of 5-year (or more) non-alienation clauses and use restrictions.
Ancestral lands/domains: Transactions with ICCs/IPs require NCIP processes and FPIC in some cases.
Tenanted properties: Selling a portion occupied by tenants may require compliance with agrarian or rent laws.
Right-of-way: Selling a landlocked piece without a constituted ROW invites disputes.
“Sketch-only” sales: A deed that says “the northern portion” without metes-and-bounds is litigation bait.
Estate property: If the registered owner is deceased, sale requires proper settlement of estate (extrajudicial or judicial) and estate taxes first.

10) Model structures (sample language you can adapt)

Property Description (pending approval) “The SELLER agrees to sell and the BUYER agrees to purchase a portion of the parcel covered by TCT No. ______, situated in ******, with a total mother area of ______ sq.m., which portion is identified in the Survey Sketch prepared by [Name], Licensed Geodetic Engineer No. ___, dated [date], with an approximate area of ******** sq.m. and tentative boundaries as shown on said sketch, and which shall, upon subdivision approval by the DENR-LMB, be designated as Lot [_] of Subdivision Plan [Psd-__] with the final technical description to control for purposes of transfer and registration.”

Condition Precedent & Escrow “Within 90 days from signing, SELLER shall cause the approval of the subdivision plan and obtain the DENR-stamped technical description of the subject portion. The parties appoint [Escrow Agent]; BUYER deposits ₱[amount] upon signing; [xx%] is released upon BIR eCAR, balance upon issuance of the new title. If approvals are not obtained within [long-stop date] through no fault of BUYER, BUYER may rescind and recover all deposits.”

Right-of-Way (if needed) “Simultaneously, SELLER grants BUYER a perpetual right-of-way [__] meters wide, over [describe strip with metes-and-bounds], in favor of the buyer’s lot, at no additional cost, to be annotated on the titles.”

Tax Allocation “SELLER shall pay CGT/CWT; BUYER shall pay DST, transfer tax, and registration fees; geodetic and subdivision approval fees shall be for [party].”

11) Practical timeline (realistic sequencing)

Week 0–1: Due diligence; engage GE; draft deal terms.
Week 1–6+: GE fieldwork → DENR approval (timeline varies by office/workload).
Upon approval: Execute final Deed of Absolute Sale (if not already), process BIR ONETT → eCAR.
Next: LGU transfer tax and Assessor updates.
Finally: ROD registration → issuance of new title (titled land) or new tax declaration (untitled).

12) Buyer & seller checklists

Buyer

Certified copy of mother title / tax declaration
GE engagement letter; survey sketch; approved plan & technical description
Lien/encumbrance check; DAR/NCIP/zoning clearances if applicable
Payment proof; escrow; official receipts
BIR eCAR; DST; LGU transfer tax; ROD receipts
Right-of-way constituted (if needed)

Seller

Spousal consent / corporate authority
RPT receipts; tax clearance
Mortgagee/third-party consents (if encumbered)
Compliance with patent/CLOA/DAR/NCIP restrictions (if any)
Cooperation covenant for BIR/ROD/LGU processing

13) Common pitfalls—and how to avoid them

Vague descriptions → attach the approved plan and technical description; avoid “northern portion” phrasing.
Skipping survey → you’ll stall at BIR/ROD; do it early and tie payments to milestones.
Ignoring agrarian/ancestral limitations → vet with DAR/NCIP first.
No access → bake in a right-of-way now, not later.
SPA defects (non-apostilled, expired, or too narrow) → cure before filing.
Post-closing surprises (tenants, liens) → demand seller warranties and indemnities.

14) Final take

You can contract for the sale of an unsurveyed portion, but the survey and subdivision approval are the keystone for taxation and registration. Structure the deal to protect both sides: (i) clear conditions precedent, (ii) escrowed payments, (iii) precise descriptions, and (iv) complete regulatory compliance. Done right, you’ll end with a clean new title (or tax declaration) for the carved-out lot—and far fewer headaches.

This article is for general information in the Philippine context and is not a substitute for tailored legal advice on a specific property or transaction.