Special Power of Attorney for the Sale of Real Property in the Philippines
A comprehensive guide to scope, requirements, limitations, and best practices
1. Concept and Legal Framework
| Key Statutes | What They Provide |
|---|---|
| Civil Code (CC) | Art. 1317 (representation), Art. 1876–1892 (agency in general), Art. 1878 (enumerates acts that require a special power, including the “sale of a piece of land or any interest therein”). |
| Rules on Notarial Practice 2004 | Form, identification, and recording requirements for notarized instruments. |
| 2009 Hague Apostille Convention | Governs authentication of SPAs executed abroad; implemented in PH since 2019. |
| Property Registration Decree (PD 1529) | Annotation procedures on titles. |
| Tax Code & BIR regulations | Capital Gains Tax (CGT), Documentary Stamp Tax (DST), and eCAR issuance when a sale is carried out through an attorney-in-fact. |
Definition A Special Power of Attorney (SPA) is a written, notarized mandate by which a principal confers on an attorney-in-fact the authority to perform one or more specific juridical acts—in this case, the conveyance of title to real property. Unlike a General or Continuing Power of Attorney, an SPA must state the exact property and the exact act to be done; silence or ambiguity will be construed against the agent.
2. When Is an SPA Indispensable?
Civil Code Art. 1878 (5) makes a sale (or even a promise of sale) of real property void unless the authority is both:
- Special – the document identifies the specific property or interest.
- In a public instrument – notarized in the Philippines or notarized/consularized abroad.
Practical rule: Even co-owners, corporate officers, executors, or spouses (when dealing with conjugal property) need an SPA or its functional equivalent (board resolution, court order, marital consent) before signing a deed of absolute sale.
3. Essential Clauses & Drafting Checklist
Full identification of parties – legal name, citizenship, marital status, address, valid IDs.
Precise property description – TCT/CCT number, lot & block, survey plan, area, boundaries, tax declaration.
Specific acts authorized
- Sign Deed of Absolute Sale, Contract to Sell, or related documents.
- Receive and issue receipts for the purchase price.
- Pay CGT/DST, secure BIR eCAR, transfer tax, and registration fees.
- Sign BIR, LGU, and Registry of Deeds (RD) forms.
- Pick up new TCT/CCT and tax declarations.
Price ceiling (optional but advisable) – “not less than ₱___”.
Term or expiration – “valid for one (1) year unless earlier revoked”.
Substitution & delegation – whether allowed.
Revocation clause – express reservation of right to revoke.
Acknowledgment & notarization – including competent evidence of identity.
If executed abroad – consular acknowledgment or Hague Apostille.
Tip: Attach a copy of the SPA to the Deed of Sale and have the Register of Deeds annotate the SPA on the existing title; this protects bona-fide purchasers and reduces fraud risk.
4. Formalities Outside the Philippines
| Scenario | Steps |
|---|---|
| Executed before a PH Consul | Oath & consular notarial certificate → directly registrable in PH. |
| Executed before a foreign notary in an Apostille country | Notarize locally → obtain Apostille → present in PH (no consul visit needed). |
| Executed in a non-Apostille country | Notarize locally → authenticate at PH Consulate. |
Translations are required if the SPA is not in English or Filipino.
5. Scope and Limitations
5.1. Doctrine of Strict Construction
Courts construe an SPA strictly; powers not plainly granted are withheld.
- Authority “to sell” does not automatically include power to mortgage, lease, or donate.
- Authority “to negotiate” is not authority to sign a final deed.
5.2. Consequences of Exceeding Authority
| Situation | Legal Effect |
|---|---|
| Agent sells without SPA | Contract void; no ratification against third persons owning real rights. |
| Agent sells but price exceeds limit | Void as to the excess; buyer in bad faith gets no protection. |
| Agent misdescribes property | Sale void if identity of property is uncertain. |
5.3. Liability
- Agent is personally liable to the buyer for warranty of authority (CC Art. 1897).
- Principal may be bound to innocent third parties if he led them to believe the authority existed (estoppel), but estoppel does not validate a void sale of land without SPA.
6. Duration, Revocation, & Extinguishment
| Mode | Statutory Basis | Requirements |
|---|---|---|
| Revocation by principal | CC Art. 1920 | Notarized Notice of Revocation + actual notice to agent + annotation on title if sale not yet registered. |
| Agent renunciation | CC Art. 1924 | Written notice to principal; reasonable time to avoid damage. |
| Death of either party | CC Art. 1919 (1) | Automatically extinguished but acts of agent in good faith before knowledge of death may bind estate. |
| Fulfillment of purpose | CC Art. 1919 (3) | SPA ends once title is transferred & price delivered. |
| Term expiry | Contract clause | No need for notice. |
Third persons dealing with the agent must verify that none of these extinguishing causes exist.
7. Registration, Tax, and Transfer Workflow
- Sign & notarize SPA (and Deed of Absolute Sale) via attorney-in-fact.
- Pay CGT (6 % of gross price) & DST (1.5 %) within 30 days at the BIR RDO where property is located.
- Secure eCAR from BIR.
- Pay Transfer Tax at City/Municipal Treasurer.
- Register Deed with RD; surrender owner’s duplicate TCT/CCT.
- Obtain new title and updated tax declaration.
Note: The RD will require the original notarized SPA or a certified copy. If the SPA was used in several transactions, secure multiple certified copies in advance.
8. Due Diligence Tips for Buyers & Lenders
- Verify identity of attorney-in-fact against government-issued IDs.
- Authenticate SPA through the Notarial Register or Integrated Bar of the Philippines online verification portal (QR code for e-notarizations).
- Check for annotations of revocation or adverse claims on the title.
- Require the principal’s marital consent if property is conjugal/community and attorney-in-fact is only one spouse.
- For corporate sellers, ask for Secretary’s Certificate + Board Resolution in addition to the SPA of the signatory.
9. Frequently Litigated Issues & Landmark Cases
| Case | Ruling |
|---|---|
| Spouses Abalos v. Heirs of Abalos (G.R. 132529, Aug 29 2000) | SPA to “mortgage” did not authorize sale; resulting deed void. |
| Heirs of Malate v. Gamboa (G.R. 170139, Jan 22 2014) | Sale executed sans SPA cannot be cured by later ratification; void for lack of authority. |
| Lim v. Sison (G.R. 155648, Apr 11 2005) | Buyer in bad faith cannot invoke apparent authority where SPA is defective. |
| Cabrera v. Rodriguez (G.R. 160947, June 16 2021) | Requirement of separate SPAs for multiple co-owned lots; blanket authority insufficient. |
Pattern: Philippine jurisprudence consistently nullifies real-property sales where the agent’s authority is absent, ambiguous, or exceeded.
10. Special Situations
| Scenario | Additional Requirements |
|---|---|
| Overseas Filipinos | SPA must be either consularized or apostilled; some banks still insist on consular form. |
| Co-ownership | Each co-owner must execute or join the SPA unless one is authorized by unanimous SPA. |
| Guardianship | SPA ineffective; court approval required for minor’s or ward’s property. |
| Corporate Ownership | Board Resolution + Secretary’s Certificate + SPA in favor of officer/employee. |
| Trust/Estate Property | SPA must recite authority granted by trust instrument or court order. |
11. Best-Practice Checklist (Quick Reference)
- Full names & IDs of principal and agent.
- Exact property details (TCT #, lot & block, area, location).
- Specific authority to sell, sign, receive, pay taxes, register.
- Price cap & payment terms (optional but wise).
- Term / expiry date.
- Notarized; use Apostille or consular form if abroad.
- Multiple certified copies prepared.
- Register SPA (optional but protective) at RD.
- Serve copy to agent & keep proof of receipt.
- Monitor for revocation or accomplishment and retrieve unused originals.
Final Word
A Special Power of Attorney is more than a formality; it is the foundation of a valid conveyance when the owner cannot personally sign. Because Philippine law treats land with exceptional rigidity, any deviation from the statutory and jurisprudential rules outlined above can render the sale void, expose the parties to litigation, or delay registration and tax clearance. Draft with specificity, execute with proper formalities, and observe diligent registration and revocation practices to ensure your property transaction stands on solid legal ground.
(This material is for general information only and is not a substitute for individualized legal advice. Consult a Philippine lawyer for transactions involving substantial value or complex circumstances.)