Introduction

In the Philippine legal system, a Deed of Sale (DOS) is a fundamental document used to transfer ownership of property, particularly real estate, from one party (the seller or vendor) to another (the buyer or vendee). An "open" Deed of Sale typically refers to a document that has been drafted and possibly signed by the parties but has not yet been notarized or acknowledged before a notary public. This lack of notarization renders it a private instrument rather than a public document, limiting its enforceability, especially against third parties, and preventing its registration with the Registry of Deeds.

Notarizing an old open Deed of Sale in the present day involves converting this private document into a public one through acknowledgment or ratification before a notary public. This process is governed by Philippine civil law, notarial rules, and relevant jurisprudence. While notarization enhances the document's probative value and allows for registration, attempting to notarize an outdated or "old" deed presents unique challenges, including issues of authenticity, consent, prescription, and the status of the parties involved. This article explores the legal basis, procedural steps, potential obstacles, remedies, and implications of notarizing such a document in the contemporary Philippine context.

Legal Framework Governing Deeds of Sale and Notarization

Nature of a Deed of Sale

Under Article 1458 of the Civil Code of the Philippines, a contract of sale is perfected upon the meeting of minds between the seller and buyer on the object and price. A Deed of Sale serves as the written embodiment of this contract. For movable property, a simple written agreement may suffice, but for immovable property (real estate), the law imposes stricter formalities.

Article 1358 of the Civil Code requires that contracts involving the sale of real property or an interest therein must appear in a public document to be enforceable against third persons. However, between the contracting parties, even an unnotarized deed can be binding if it meets the requisites of a valid contract (consent, object, cause).
The Property Registration Decree (Presidential Decree No. 1529) mandates that deeds affecting registered land must be notarized to be registrable. Registration is crucial for protecting the buyer's title against subsequent claims.

An "old open" Deed of Sale implies the document was executed years ago but left unnotarized, perhaps due to oversight, cost concerns, or incomplete transactions. Over time, circumstances may change—properties appreciate, parties relocate or pass away, or disputes arise—prompting the need to formalize it now.

Notarization Requirements

Notarization in the Philippines is regulated by the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC), as amended. Notarization involves:

Acknowledgment: The act by which the signatories declare before a notary public that they have executed the instrument as their free and voluntary act. For an old deed, this requires the personal appearance of all parties (or their authorized representatives) to affirm the document's authenticity.
Ratification: If the original deed was signed but not acknowledged, parties may ratify it by executing a new acknowledgment or a separate ratification document, which is then notarized.

Notaries must verify identities through competent evidence (e.g., government-issued IDs) and ensure no vitiation of consent. The notary affixes their seal, signature, and notarial details, transforming the deed into a public document admissible in court without further proof of authenticity (Rule 132, Section 30 of the Rules of Court).

For deeds executed abroad, consularization or apostille (under the Apostille Convention, effective in the Philippines since 2019) may be required if involving foreign elements.

Procedural Steps to Notarize an Old Open Deed of Sale

Review and Verify the Document:
- Examine the original deed for completeness: It should include details like the parties' names, property description (technical description for land), consideration (price), terms, and signatures.
- Check for any alterations, erasures, or signs of forgery. If the deed is undated or lacks essential elements, it may need amendment via a supplemental deed.
- Confirm the property's status through a certified true copy of the title from the Registry of Deeds to ensure no annotations (e.g., liens, adverse claims) that could invalidate the sale.
Secure Consent of All Parties:
- All original signatories (seller, buyer, witnesses) must appear before the notary. If a party is unavailable (e.g., deceased, abroad), alternatives like powers of attorney or court intervention may be needed.
- For corporate parties, board resolutions authorizing the acknowledgment are required.
Prepare for Notarization:
- Draft a ratification clause if necessary, stating that the parties reaffirm the deed's contents as of the original date but acknowledge it now.
- Pay notarial fees (typically based on the property's value or a fixed rate) and documentary stamp tax (DST) under Section 188 of the Tax Code, computed on the higher of the selling price or zonal value.
Appear Before a Notary Public:
- Parties present themselves with valid IDs. The notary interviews them to confirm voluntariness and understanding.
- The notary executes the acknowledgment certificate, which includes the date, place, and parties' details.
Post-Notarization Steps:
- Register the notarized deed with the Registry of Deeds within the jurisdiction of the property. This involves paying registration fees, capital gains tax (CGT) if applicable, and transfer taxes.
- Secure a new Transfer Certificate of Title (TCT) or Original Certificate of Title (OCT) in the buyer's name.
- If the sale involves agricultural land, obtain clearances from the Department of Agrarian Reform (DAR).

The entire process can take weeks to months, depending on bureaucratic delays.

Challenges and Potential Issues

Notarizing an old deed is not straightforward and often encounters hurdles:

1. Death or Incapacity of Parties

If the seller has died, their heirs must ratify the deed via an extrajudicial settlement of estate (under Rule 74 of the Rules of Court) or judicial partition. The deed cannot be notarized in the deceased's name; instead, a new deed from the heirs may be executed.
Jurisprudence, such as in Heirs of Spouses Balite v. Lim (G.R. No. 152168, 2004), emphasizes that unnotarized deeds bind heirs if proven valid, but notarization requires living parties or representatives.

2. Prescription and Laches

Actions to enforce a sale prescribe after 10 years for written contracts (Article 1144, Civil Code). If the deed is over 10 years old, the buyer may face defenses of prescription if the seller refuses to acknowledge.
Laches (unreasonable delay) may bar enforcement, as in Catholic Bishop of Balanga v. CA (G.R. No. 112519, 1996), where long inaction voided claims.

3. Tax Implications

Notarizing now triggers current tax rates: CGT at 6% of the gross selling price or fair market value, DST at P15 per P200, and local transfer taxes (up to 0.75%).
If the original sale was undeclared, penalties for late payment apply under the Bureau of Internal Revenue (BIR) rules. Amnesty programs (e.g., under RA 11213, Tax Amnesty Act) may offer relief if applicable.

4. Fraud or Forgery Concerns

Notaries must guard against antedating (backdating) to evade taxes, which is illegal under the Notarial Rules and punishable by disbarment or fines.
If the deed's authenticity is questioned, it may require judicial confirmation via an action for specific performance or quieting of title.

5. Third-Party Rights

Intervening rights (e.g., subsequent sales) may have accrued. Under the Torrens system, a registered buyer in good faith prevails (PD 1529). An old unnotarized deed yields to registered titles, per Leung Yee v. Strong Machinery (G.R. No. L-11658, 1918).

6. COVID-19 and Modern Adaptations

Post-pandemic, remote notarization via audio-video technology is allowed under RA 11930 (Remote Notarization Act of 2022), but only for certain documents and with safeguards. However, real property deeds generally require physical presence.

Remedies and Alternatives

If direct notarization is impossible:

Execute a New Deed: Parties can draft a new Deed of Absolute Sale, referencing the old one, and notarize it afresh. This avoids prescription issues but may incur higher taxes based on current values.
Judicial Ratification: File a petition for notarial confirmation or reformation of instrument in the Regional Trial Court (RTC) under Rule 63 of the Rules of Court.
Adverse Claim Annotation: The buyer can annotate an adverse claim on the title to protect interests pending resolution (Section 70, PD 1529).
Quiet Title Action: To remove clouds on title arising from the old deed.

Jurisprudence and Practical Insights

Philippine courts have addressed similar issues:

In Tapuroc v. Loquellano (G.R. No. 152737, 2007), the Supreme Court upheld an unnotarized deed as valid between parties but stressed notarization for third-party effect.
Dalion v. CA (G.R. No. 78903, 1991) ruled that belated registration does not retroact to prejudice innocent third parties.
Practically, consult a lawyer or notary experienced in real estate to navigate BIR clearances and avoid common pitfalls like incomplete property descriptions leading to registration denials.

Conclusion

Notarizing an old open Deed of Sale in the present is a viable way to formalize past transactions, secure property rights, and enable registration. However, it demands careful compliance with civil, notarial, and tax laws to overcome challenges like party unavailability, prescription, and fiscal obligations. Success hinges on thorough preparation and, often, legal assistance. For property owners or buyers dealing with such documents, prompt action is advisable to preserve rights in an evolving legal landscape where delays can lead to irreversible losses.