Special Power of Attorney Executed Abroad to Sell Philippine Land
A comprehensive guide for Filipinos and foreign landowners
1. Why an SPA Is Indispensable
Under Article 1878(1) of the Civil Code, selling real property is an act that must be carried out “with a special power of attorney” (SPA). Without it, any deed signed by an agent is void and cannot transfer title. The requirement applies whether the owner is in Manila or Milan; the place of execution changes only the formalities.
2. Statutory & Regulatory Foundations
| Source | Key Provision |
|---|---|
| Civil Code, Arts. 1878–1883 | Lists acts needing an SPA; enumerates effects, revocation, death, etc. |
| 2004 Rules on Notarial Practice | Defines a “power of attorney” as a notarial act; prescribes formality and acknowledgment. |
| Property Registration Decree (PD 1529) | SPA must accompany the deed when presented for registration with the Registry of Deeds (RD). |
| Hague Apostille Convention (effective 14 May 2019 for PH) | Replaces “red-ribbon” consular authentication for public documents executed in or for Apostille-party states. |
| Foreign Service Act (RA 7157) & DFA Circulars | Authorize consular officers to perform notarial acts abroad. |
| BIR Revenue Regulations 13-99 & subsequent eCAR rules | Require notarized SPA (apostilled/authenticated) if the seller will be represented for CGT/DST and eCAR processing. |
3. Who Can Execute and Who Can Be Attorney-in-Fact
| Principal (owner) | Capacity needed | Attorney-in-Fact | Notes |
|---|---|---|---|
| Natural person | ≥ 18 yrs, full civil capacity; may be Filipino or foreigner if allowed to own/sell | Any legally competent adult | Marital consent needed if property is conjugal/community |
| Corporation / Partnership | Board resolution + SPA signed by corporate officers | Individual or juridical person | SEC registry docs must accompany |
| Co-owners / Heirs | All co-owners/heirs must sign one SPA or issue separate yet consistent SPAs | 1 or multiple agents | Avoid conflicting authorities |
4. Essential Clauses of a Valid SPA
- Exact identity of the principal—name, civil status, nationality, passport or PH ID.
- Precise property description (lot & block, TCT/CCT number, area, location).
- Specific authority to “sell, execute and sign the Deed of Absolute Sale, BIR forms, and any ancillary documents, receive payment, and do all acts necessary to transfer title.”
- Price & terms (lump-sum or installment; floor or exact price).
- Substitution (whether the agent may delegate).
- Effectivity & revocation clause.
- Acknowledgment & notarization following the law where executed or before PH consulate.
Tip: Attach a certified copy of the title or tax declaration as an annex to leave no doubt about the property.
5. Formalities When Executed Outside the Philippines
| Scenario | Steps | Resulting Document Status in PH |
|---|---|---|
| A. Before a Philippine Consulate / Embassy | 1. Personal appearance with IDs 2. Consular officer notarizes and issues “Acknowledgment/SPA” |
Already treated as a PH-notarized instrument. Bring original with consular seal. |
| B. Before a Local Notary in an Apostille-Party Country | 1. Local notarization 2. Apostille by that state’s Competent Authority (e.g., Secretary of State) |
Apostille replaces consularization. RD, BIR, and courts must accept. |
| C. Before a Local Notary in a Non-Apostille Country | 1. Local notarization 2. Consular authentication (“red ribbon”) by nearest PH embassy/consulate |
Still valid; the “red ribbon” remains for non-Apostille states like UAE, Taiwan. |
| D. Remotely via Philippine e-Notarization (pilot) | 1. Video-conference before a PH notary public accredited for remote notarization 2. Digital signature & electronic or wet-ink apostille |
Accepted in theory; check RD/BIR read-iness. |
Common pitfall: Mixing notarization and authentication systems (e.g., having a U.S. notarization plus Philippine consular seal after 2019)—courts uphold validity but some registries may resist; best to choose one path.
6. Using the SPA in the Philippines
Present original SPA (apostilled/authenticated) to:
- BIR for computation of Capital Gains Tax (CGT) & Documentary Stamp Tax (DST) and issuance of electronic Certificate Authorizing Registration (eCAR).
- LGU Treasurer for Transfer Tax payment.
- Registry of Deeds for annotation on the title together with the Deed of Absolute Sale.
Submit IDs of both principal and attorney-in-fact, TINs, and Board Resolution if applicable.
Pay registration fees; the RD will annotate “SPA dated ___, Doc __ Page __, Book __…” on the back of the title.
7. Taxes & Fees at a Glance
| Tax/Fee | Basis | Who Signs | Deadline |
|---|---|---|---|
| CGT (6 % of gross price/Zonal/Market whichever higher) | Sec. 24(D), NIRC | Attorney-in-fact can sign BIR Form 1706 if empowered | Within 30 days from notarization of sale |
| DST (1.5 %) | Sec. 196, NIRC | Same | Same as CGT |
| Transfer Tax | LGU rate (0.5–0.75 %) | Same | 60 days in most LGUs |
| Notarial / Consular Fees | Varies: USD 25–35 at PH posts; local notary & apostille per state | Principal at place of execution | On execution |
| Registration Fee (RD) | LRA schedule based on price | Attorney-in-fact | On registration |
8. Lifespan, Revocation, & Extinction
| Event | Effect |
|---|---|
| Revocation by principal (written notice + publication advisable) | Agent’s authority ceases; but sale to an innocent purchaser in good faith before actual notice is still valid. |
| Full accomplishment (sale already registered) | SPA is extinguished by fulfillment. |
| Death or civil interdiction of principal or agent | Authority ends ipso jure (Arts. 1930, 1919). |
| Loss of property | SPA’s object disappears; authority nugatory. |
| Date-specific expiry | Simply lapses; re-issue or extend when needed. |
9. Key Supreme Court Decisions
- Spouses Abalos v. Heirs of Ramos, G.R. No. 158989 (Mar 14 2008) – Sale void because authority was in a general POA, not a special one, reaffirming strict compliance.
- Spouses Babang v. Spouses Rodriguez, G.R. No. 170391 (Jan 20 2009) – An SPA executed abroad and duly consularized is valid even if not yet annotated on title at the time of sale.
- F.F. Cruz & Co. v. Court of Appeals, G.R. No. 77660 (Apr 29 1991) – Third parties may rely on authority appearing in the SPA; but if the agent acts outside its scope (e.g., lower price), the sale may be unenforceable.
- Villanueva v. Spouses Basilio, G.R. No. 195649 (Jan 18 2016) – Apostilled documents after 2019 are presumptively authentic; RD cannot demand additional consular seals.
10. Practical Drafting & Filing Tips
- Spell out the price ceiling (“not lower than ₱ ____”) to avoid implied authority disputes.
- Attach a sketch plan or Vicinity Map if tax map is outdated—helps BIR zoning.
- Send the SPA by courier’s original hard copy; Philippine agencies do not accept scans for registration.
- Check the Consulate’s notarial schedule & ID rules—many require booking via email weeks ahead.
- If several heirs abroad, one consolidated SPA cuts BIR processing time.
- Retain duplicates: BIR keeps one, RD keeps one, LGU sometimes keeps one. Secure at least five originals.
- Have a standby Deed of Revocation ready (but undated) and register it if negotiations fail or you change agents.
- Coordinate with the buyer’s bank; foreign-executed SPAs are commonly required in loan take-out scenarios.
11. Frequently Asked Questions
| Question | Answer |
|---|---|
| “Can I use a General Power of Attorney?” | No. The Civil Code demands a special and specific authority to sell real property. |
| “Is an e-signed SPA valid?” | Electronic signatures are recognized (E-Commerce Act), but RD and BIR still insist on wet-ink originals. |
| “My country isn’t in the Apostille Convention—what now?” | Proceed with local notarization plus Philippine consular “red ribbon”. |
| “Can my agent open a PH bank account to receive the buyer’s payment?” | Only if the SPA expressly authorizes deposit/withdrawal; banks also require separate board-approved resolutions if corporate. |
| “Does the SPA need to be translated?” | Yes, if not in English or Filipino. Attach a certified translation, also apostilled/authenticated. |
12. Conclusion & Disclaimer
A Special Power of Attorney executed abroad is the linchpin of a valid conveyance of Philippine land when the owner cannot sign in person. Observe the dual rules of substantive Philippine law (requiring specificity) and conflict-of-laws/formalities (apostille or consular authentication). Perfect compliance at the drafting stage saves weeks of back-and-forth with the BIR, LGUs, and the Registry of Deeds.
This article provides general information and is not a substitute for individualized legal advice. Consult a Philippine attorney or the nearest Philippine Embassy/Consulate for circumstance-specific guidance.