Special Power of Attorney for the Purchase of Real Property in the Philippines
A comprehensive legal guide for principals, attorneys-in-fact, and practitioners
1. What Is a Special Power of Attorney (SPA)?
A Special Power of Attorney is a written, notarised mandate in which one person (the principal) confers upon another (attorney-in-fact or agent) the authority to do one or more specifically-described acts on the principal’s behalf. In Philippine practice:
| Type of power | Coverage | Citation |
|---|---|---|
| General Power of Attorney | All acts of administration | Art. 1877, Civil Code |
| Special Power of Attorney | A single act or series of expressly-named acts | Art. 1878, Civil Code |
Because buying, selling, leasing for more than one year, or otherwise encumbering real property is deemed an act of strict dominion, only a Special (not General) Power of Attorney will suffice.
2. Governing Law and Key Doctrines
| Subject | Core rule | Main sources |
|---|---|---|
| Form & necessity | Acts of strict dominion—including the purchase of land—must be supported by an SPA “in a public instrument” (i.e., notarised) | Arts. 1878(5) & 1874, Civil Code |
| Capacity | Principal must be of age & with full civil capacity; attorney-in-fact may be of legal age and any nationality (unless a statute requires otherwise) | Arts. 1327–1329, Civil Code |
| Effect of death | Agency extinguishes upon death of either party unless the SPA “contains a clause that it shall continue” or the act benefits heirs already | Art. 1919, Civil Code |
| Relationship & fiduciary duty | Agent must act with utmost diligence and render account; liable for fraud, negligence, or acting beyond authority | Arts. 1887–1892, Civil Code |
| Foreign execution | SPA executed abroad must be consularised (pre-2020) or Apostilled under the 1961 Hague Convention (after the PH accession effective 14 May 2019) and later notarised or certified locally | DFA Dept. Order No. 03-2019; Rule 9, 2004 Rules on Notarial Practice |
| Registration | While an SPA itself need not be recorded, any deed executed pursuant to it (e.g., Deed of Absolute Sale) must be registered with the Registry of Deeds to bind third parties | Sec. 53, PD 1529 (Property Registration Decree) |
3. Why an SPA Is Common in Property Purchases
- Overseas Filipino Workers (OFWs) who cannot personally sign contracts, loan documents, or tax forms.
- Corporate buyers designating a particular employee or officer to act.
- Joint owners authorising one co-owner to transact.
- Time-sensitive deals when the buyer must appear before the developer, bank, BIR, LGU, or Register of Deeds on specific dates.
Failure to produce a properly-executed SPA usually results in refusal by banks, developers, notaries, or registries to process the transaction.
4. Essential Elements of a Valid SPA for Property Purchase
Title & caption – “Special Power of Attorney to Purchase Real Property.”
Full identities of principal and attorney-in-fact (citizenship, civil status, addresses, government-issued IDs).
Recitals (whereas-clauses) – background facts, need to acquire the property, inability of principal to appear.
Grant of authority – specific, enumerated acts, e.g.:
- Negotiate and agree on price, terms, and conditions.
- Sign Reservation Agreement/Contract-to-Sell/Deed of Absolute Sale.
- Pay earnest money, down-payments, and subsequent instalments.
- Apply for bank financing, sign loan and mortgage papers.
- Secure tax clearances, pay Documentary Stamp Tax (DST), Transfer Tax, Registration Fees, etc.
- Attend BIR electronic Certificate Authorising Registration (eCAR) processing.
- Sign all documents before the Register of Deeds, including the Consolidated/Substituted TCT issuance.
- Receive the Owner’s Duplicate Certificate of Title and all documents.
Property description – Lot & block/condominium unit, area, Title No., location; “together with all improvements thereon.”
Consideration clause – Maximum purchase price or authority to negotiate within a range (to avoid implied authority to exceed).
Special powers of substitution or delegation (optional).
Duration or termination – Either on a specific date, upon full transfer, or “until revoked in writing.”
Acceptance & signature of attorney-in-fact (optional but best practice).
Acknowledgment before a Philippine notary (or PH Consul/Apostille abroad).
Tip: Attach photocopies of IDs of both parties and a certified copy of the proposed property’s title to avoid re-verification.
5. Drafting Checklist & Stylistic Matters
| Checklist item | Why it matters |
|---|---|
| Enumerate all incidental acts, e.g., SECURE TAX IDENTIFICATION NO. (TIN) for non-resident foreigners, open bank account, sign data-privacy consent forms | Avoid repeated amendments |
| State whether the agent may receive or disburse funds and in what manner | Prevent claims of unauthorised withdrawals |
| Indicate mode of payment (cash, cheque, telegraphic transfer) | Banks now require explicit authority |
| Rephrase “and all other acts necessary” as “and only such other acts as are necessary and incidental to effect the foregoing purposes” | Courts construe SPAs strictly |
| Insert hold-harmless clause absolving third parties (developers, banks, registries) who rely on the SPA in good faith | Minimises later disputes |
| Provide for digital copies (PDF) and electronic signatures where institutions accept them (e.g., some banks during pandemic-era e-notarisation pilot) | Practical convenience |
6. Execution Abroad: Consularisation vs. Apostille
| Scenario | Steps |
|---|---|
| Country NOT party to the Hague Apostille Convention | ① Sign before Philippine embassy/consulate; ② Consul issues certificate (“red ribbon”); ③ Present in PH for notarisation or acceptance |
| Country party to the Convention (e.g., USA, Canada, UAE, most EU states) | ① Sign before local notary; ② Competent authority issues Apostille; ③ No further consular legalisation needed in PH |
Upon arrival in the Philippines, the Apostilled SPA is directly recordable with banks, developers, and registries, though many still require a loose-leaf notarisation by a Philippine notary to conform to local formatting.
7. Using the SPA During the Transaction Lifecycle
Reservation & Contract-to-Sell stage
- Agent signs reservation agreement and pays fee.
Due diligence
- Obtains certified title, tax declaration, real-property tax clearance.
Loan application (if any)
- Agent submits income docs, signs promissory note and REM (Real Estate Mortgage); some banks require their own bank-specific SPA in addition to the principal SPA.
BIR & LGU taxes
- Files BIR Form 1706 (Capital Gains) & Form 2000 (DST); pays LGU Transfer Tax within 60 days from notarisation.
Registry of Deeds
- Registers Deed of Sale, pays registration fees, causes issuance of new TCT/CCT.
Post-registration turnover
- Picks up Owner’s Duplicate Title, tax declaration in buyer’s name, and keys from developer or seller.
8. Limitations, Risks, and Best Practices
| Issue | Explanation | Mitigation |
|---|---|---|
| Ultra vires acts | Agent acts beyond authority (e.g., increases price cap) → unenforceable against principal | Itemise powers clearly; set price ceiling |
| Forged or expired SPA | Notaries may mis-identify signatories; banks refuse stale documents (>1 year) | Use reputable notary; re-execute if >6–12 months old |
| Death or incapacity | Agency automatically ends; acts done later are void | Notify counterparties immediately; heirs may ratify |
| Agent’s self-dealing | Buying in own name without disclosure breaches fiduciary duty | Insert clause forbidding self-dealing absent written consent |
| Foreign ownership caps | Foreigners cannot acquire land except via 40 % corporate share or hereditary succession | Verify citizenship and structure early |
| Tax mis-filing | Wrong tax base or missed deadlines triggers surcharges | Engage licensed tax agent and give SPA for tax compliance |
9. Revocation and Extinguishment
- Express revocation must be in writing and notarised, then served upon the agent and third parties who dealt with the agent.
- Implied revocation occurs when the principal directly performs the act or appoints a new agent for the same act.
- Annotation on TCT/CCT – Recommended (though not mandatory) to annotate the SPA and any Revocation of SPA on the title if the property has already been transferred.
- After revocation, third parties in good faith who relied on the outward appearance of authority before notice remain protected (Art. 1901, Civil Code).
10. Comparison Table: SPA vs Special Secretary’s Certificate vs Board Resolution
| Feature | SPA (individual) | Secretary’s Certificate (corp. buyer) | Board Resolution (coop. / HOA) |
|---|---|---|---|
| Signatory | Principal individual | Corporate secretary certifying BoD approval | Board secretary/president |
| Form | Notarised public instrument | Notarised certificate + board minutes | Notarised resolution |
| Purpose | Delegate specific acts | Authorise officer/employee | Same |
| Registration need? | Usually no | Some registries require annotation | Similar |
| Extinguishment | Revocation/death | Subsequent board resolution | Rescission by quorum |
11. Sample Skeleton Clause (for reference only)
“NOW, THEREFORE, I, Juan Dela Cruz, Filipino, of legal age, do hereby APPOINT, NAME, and CONSTITUTE my brother, Pedro Dela Cruz, likewise of legal age, as my true and lawful Attorney-in-Fact, with full power of substitution, for me and in my name, place and stead, to do and perform the following acts:
- To negotiate for, and purchase that certain parcel of land covered by Transfer Certificate of Title No. 123456, located in Barangay Makati, Metro Manila, for a price not exceeding ₱5,000,000.00;
- To sign the Offer to Buy, Contract-to-Sell, and Deed of Absolute Sale;
- To apply for and obtain bank financing, sign promissory notes, real estate mortgage, disclosure statements, and such other documents as the lending institution may require;
- To pay in cash, manager’s cheque, or telegraphic transfer the full purchase price, taxes, and incidental expenses, and to receive and safeguard all official receipts;
- To secure the eCAR from the Bureau of Internal Revenue, pay Documentary Stamp Tax, Transfer Tax, and Registration Fees, and effect transfer of title in my name at the Registry of Deeds;
- To take possession of the Owner’s Duplicate Title, tax declaration, and physical possession of the property, and to do all acts necessary and incidental to fully effect the foregoing purposes.
HEREBY GIVING AND GRANTING unto my said Attorney-in-Fact full power and authority to do and perform every act requisite or necessary…”*
12. Frequently Asked Questions
| Question | Answer (Philippine context) |
|---|---|
| Does an SPA need witnesses? | Not legally required but many notaries insist on two credible witnesses for stronger evidentiary weight. |
| How long is an SPA valid? | Indefinite unless an expiry is stated; banks and developers often ask for a “fresh” SPA if >1 year old. |
| Can I use the same SPA to buy two properties? | Yes, if both properties are specifically identified; otherwise execute separate SPAs. |
| Can the attorney-in-fact delegate the power? | Only if the SPA expressly grants a power of substitution (Art. 1892). |
| Do I need to register the SPA with the Registry of Deeds? | Not mandatory, but if the agent is signing the Deed of Sale, registries may ask to see (and sometimes retain) the original or a certified copy. |
| Is e-notarisation accepted? | Limited pilot since 2021 under OCA Circular No. 335-2020; acceptance varies by institution—confirm first. |
13. Practical Tips for OFWs and Counsels
- Use clear, typed documents—smudged photocopies are routinely rejected.
- Bundle the SPA, IDs, and apostille in one PDF when sending home to reduce mailing delays.
- Set a price ceiling to avoid suspicions of blank-check authority.
- Coordinate with the receiving bank or developer first—some provide their own SPA templates.
- Keep digital backups; duplicates can be consularised faster if original is lost in transit.
14. Conclusion
A properly-crafted and duly-authenticated Special Power of Attorney is indispensable for purchasing real property in the Philippines when the buyer cannot personally attend to each step. Philippine law protects third parties who rely on the SPA, but it also strictly construes the agent’s authority; vague or blanket clauses will not fill gaps in express powers. Therefore, principals and counsel should:
- Draft with precision, enumerating every act from negotiation to post-registration.
- Observe formalities of notarisation or apostille to ensure admissibility.
- Monitor execution, revocation, and tax-compliance timelines.
Handled correctly, an SPA is a powerful, flexible tool that allows transactions to proceed smoothly—whether the principal is across town or halfway across the globe.