Executive summary

In the Philippines, real property may be transferred to a third party by an agent acting under a Special Power of Attorney (SPA) granted by the owner (the principal). The SPA must specifically authorize the act of selling, mortgaging, donating, or otherwise encumbering the property. For a sale of land made through an agent, the principal’s written authority is indispensable; without it, the sale is void. In practice, registries, the BIR, and banks require a notarized SPA (and apostilled/consularized if executed abroad) for taxation and registration. This article lays out the legal bases, form and content, limits, tax and registration workflow, risks, and a practical checklist with a model SPA.

Legal foundations

Agency and special authority

Agency is a contract by which a person (agent) acts for and on behalf of another (principal).
Certain acts require a Special Power of Attorney. Under the Civil Code, special powers are required to:
- Sell, mortgage, or create real rights over real property;
- Make gifts, compromise, submit disputes to arbitration, waive rights, lease real property for more than one year, borrow or loan money (with limited exceptions), and similar acts.
Strict construction: The grant is interpreted strictly. A general authority to “manage” property is not enough to sell or mortgage; the SPA must expressly confer the exact act (e.g., “to sell the property covered by TCT No. ___ for not less than ₱___”).

Sale of land through an agent—writing required

When land (or an interest therein) is sold through an agent, the agent’s authority must be in writing; otherwise, the sale is void (not merely voidable). This is a separate, stricter requirement from the Statute of Frauds.

Notarization and public instrument

While an agency may exist even orally, for registrability and evidentiary weight, the SPA used to convey real property is expected to be in a notarized public instrument. Registers of Deeds will not process a deed executed by an agent unless the SPA is notarized and typically attached/annotated to the title record.

Capacity, consent, and family-property rules

The principal must have full legal capacity. An SPA cannot cure incapacity (e.g., minority, interdiction).
Married property:
- For community or conjugal property, both spouses’ consent is required for disposition or encumbrance. If only one spouse owns the title but the property is actually conjugal/community, lack of spousal consent can invalidate the transfer.
- If property is exclusive, the SPA should recite that status (and basis) to avoid registry objections.

Prohibition on self-dealing and conflicts

An agent cannot purchase the principal’s property for himself or act for an adverse third person without the principal’s express consent. Transactions in violation are voidable at the principal’s instance.

Exceeding authority; ratification

Acts within authority bind the principal as to third persons in good faith.
If the agent exceeds authority, the act does not bind the principal unless the principal ratifies it (expressly or impliedly). Ratification retroacts to the time of the act (subject to rights of third persons).

Revocation and termination

Agency ends by:

Revocation by the principal (generally at will);
Death, insanity, insolvency of the principal or agent;
Fulfillment of the mandate or expiration of the SPA. To protect third parties and the land registry, revocations should be notarized, and, where the SPA was annotated on title, the revocation should likewise be presented for annotation. An agency coupled with an interest (e.g., given as security) may be irrevocable while the interest subsists.

What the SPA must contain

Essential clauses

Title and nature: “Special Power of Attorney.”
Parties: Full legal names, civil status, nationality, government ID details, addresses of principal and agent.
Specific authority: Precise verbs—“to sell,” “to mortgage,” “to donate,” “to lease (term),” “to execute and deliver a Deed of Absolute Sale,” “to receive and issue receipts,” “to pay taxes,” “to sign BIR forms,” “to secure eCAR,” “to process transfer at the LGU and Registry of Deeds,” etc. Avoid vague catch-alls.
Property description: Technical and registry identifiers: TCT/OCT No., Lot/Block, Survey, Area, Location, and Tax Declaration No.
Commercial parameters (recommended): Minimum price, payment terms, earnest money, who shoulders taxes/fees, brokerage, and authority to cancel or extend.
Spousal consent: Where applicable, a separate, explicit consent (or co-execution) by the spouse.
Substitution/delegation: Whether the agent may appoint a substitute (sub-agency). If permitted, state limits and require that any substitution be in writing and notarized.
Effectivity and termination: Start date, expiry (if any), conditions for revocation.
Acknowledgment: Notarial acknowledgment (Philippine notary or foreign notary with apostille/consularization).

Execution abroad (Apostille/consularization)

If signed outside the Philippines, the SPA must be:
- Apostilled (if executed in a Hague Apostille Convention country); or
- Consularized at a Philippine Embassy/Consulate (if not apostille-party).
Some registries still ask for a Philippine translation if the SPA is not in English/Filipino.

Using the SPA to complete a transfer

Typical workflow (sale to a third party)

Grant SPA Principal signs a notarized SPA (with apostille/consularization if abroad).
Due diligence Agent verifies title status (TCT/OCT and encumbrances), identity and capacity of the principal, property regime, tax arrears, zoning/tenancy, and PEZA/HLURB/Housing approvals if relevant.
Contracting Agent signs Contract to Sell or Deed of Absolute Sale with buyer strictly within authority. If authority sets a minimum price/terms, the agent must comply.
Taxes and clearances (typical sequence)
- BIR: File Capital Gains Tax (CGT) return (if asset is a capital asset) and Documentary Stamp Tax (DST), then obtain eCAR.
  - CGT is generally 6% of the higher of gross selling price or zonal/fair market value (for capital assets).
  - For ordinary assets (e.g., by real estate dealers), Creditable Withholding Tax (CWT) regime applies instead of CGT.
  - DST is generally ₱15 per ₱1,000 (i.e., 1.5%) of the consideration or market value.
  - Deadlines: CGT—commonly within 30 days from sale; DST—on or before the 5th day following the month of the taxable document. (Confirm current BIR rules and eCAR procedures with the RDO handling the property.)
- LGU: Pay Transfer Tax (often 0.5%–0.75% depending on the LGU) and settle Real Property Tax arrears/clearances.
Registry of Deeds Present Deed of Sale, SPA (original), IDs, eCAR, Tax Clearance, Transfer Tax receipt, ITR/TIN documents as required. The Registry cancels the seller’s title and issues a new TCT/CCT to the buyer. The SPA and (if applicable) its revocation may be annotated.

Practice tip: Many RDOs and Registries will not accept photocopies of the SPA; they expect the original notarized apostilled/consularized SPA for inspection and often to keep a copy.

Limits, risks, and how to avoid them

Void sale for lack of written authority A sale of land via agent without written authority from the principal is void. Buyers must inspect the SPA and match identities (names, signatures, IDs).
Ultra vires acts If the agent exceeds the SPA (e.g., sells below the minimum price, mortgages when only a power to sell was given), the act does not bind the principal absent ratification. Draft clear commercial parameters.
Self-dealing/conflicts Selling to oneself or to a principal’s counterparty without express consent renders the transaction voidable. Include a self-dealing authorization only if truly intended, and set a floor price and independent valuation safeguard.
Defects in execution Missing notarization, defective acknowledgment (wrong IDs/names), expired notarial commission, or failure to apostille/consularize can derail BIR/ROD processing.
Spousal consent If the property is conjugal/community, lack of spousal written consent may render the sale void. When in doubt, obtain spousal joinder.
Capacity and authenticity The SPA is vulnerable to forgery, imposture, or undue influence. Use wet-ink signatures before a notary, insist on original government IDs, and, for larger transactions, consider video-recorded notarization where available and independent witnesses.
Revocation not communicated A valid revocation that is not communicated to the agent or third parties can create disputes. Best practice: notify in writing (with proof of receipt), and annotate the revocation where the SPA was used or recorded.

Tax and regulatory notes (high-level)

Classification matters: Whether the property is a capital asset or ordinary asset drives whether CGT or CWT applies. Corporations engaged in real estate typically treat inventory as ordinary assets.
VAT: Some sales of ordinary assets can be VAT-able; check taxpayer registration and thresholds.
Withholding: Buyers may have to withhold taxes (CWT) on sales of ordinary assets or on installment arrangements.
TIN requirement: Parties typically need a TIN to process taxes and issuance of eCAR.
Foreign ownership: A foreign principal may appoint an agent, but land ownership is restricted to Philippine citizens and qualifying corporations (≤40% foreign). Agents must ensure the principal is eligible to own/transfer the property in the first place.

Registration and documentary checklist

From the principal/agent

Original notarized SPA (apostilled/consularized if executed abroad)
Valid IDs of principal and agent; marriage certificate (if relevant)
Revocation (if any) or proof SPA is still in force; substitution SPA (if sub-agent acts)

From the seller (if different from principal)

Owner’s duplicate title (TCT/CCT)
Latest Real Property Tax clearance; tax declaration
Deed of Absolute Sale (notarized)
TIN and BIR forms; eCAR
Transfer Tax receipt; proof of DST/CGT/CWT payment
** HOA/condo** clearances (for condos/subdivisions), if required

From the buyer

TIN, IDs
SPA if the buyer is also acting through an agent
Proof of funds/loan documents if bank-financed

Practical drafting guidance

Be explicit: State “to sell and convey” the specific property and “to sign and deliver all deeds, BIR forms, LGU applications, and Registry instruments.”
Set boundaries: Include minimum price, mode of payment, and a no-side-deal clause.
Compliance clause: Authorize the agent “to pay and withhold taxes, secure eCAR, and present documents to BIR, LGU, and Registry of Deeds.”
Evidence pack: Attach photocopies of IDs, marriage certificate (if relevant), and specimen signatures.
Durability: Provide a term (e.g., 12 months) with an earlier revocation option upon written notice.
Data privacy: Add consent to use personal data for processing with BIR/LGU/ROD.

Model Special Power of Attorney (illustrative)

SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: I, [Full Name of Principal], of legal age, [citizenship], [civil status], with address at [address], holder of [ID type/number], do hereby appoint [Full Name of Agent], of legal age, [citizenship], [civil status], with address at [address], holder of [ID type/number], as my true and lawful Attorney-in-Fact, to do and perform the following acts in my name and stead:

To sell and convey for a price not less than ₱[amount] my property covered by [TCT/OCT No. ___], located at [address], more particularly described as [lot/block/survey/area];

To sign, execute, and deliver any Deed of Absolute Sale, Contract to Sell, Acknowledgment Receipt, Affidavit of Non-Tenancy, BIR returns and forms, and all documents necessary to effect the sale, payment of taxes, and issuance of eCAR;

To pay capital gains or creditable withholding tax, DST, Transfer Tax, registration fees, and secure clearances from the BIR, LGU, and Registry of Deeds, and to present this SPA and all supporting documents for annotation/registration;

[Optional] To mortgage the property to facilitate buyer’s financing, or to cancel the sale if conditions precedent are unmet;

[Optional] To deal with utilities/HOA/condo corp and secure necessary certifications;

[Optional – self-dealing] With my express consent, my Attorney-in-Fact may purchase the above property personally or through a nominee provided the purchase price is not less than ₱[amount], payable [terms]. This authority shall be effective from [date] and shall expire on [date], unless earlier revoked in writing. No substitution is allowed [or: substitution is allowed upon written, notarized appointment]. IN WITNESS WHEREOF, I have hereunto set my hand this [date] at [place]. [Principal’s Signature over Printed Name] SIGNED IN THE PRESENCE OF: [Witness 1] / [Witness 2] ACKNOWLEDGMENT (Notarial acknowledgment block appropriate to place of execution; apostille/consularization if executed abroad.)

Use this template for guidance only; tailor clauses to the actual deal, property, and risk profile.

Common scenarios

OFW selling property through relatives: Execute SPA before a foreign notary and apostille it; courier the original to the Philippines for BIR/ROD.
Developer inventory: Authority often limited to reserve/accept payments; it does not include a power to sell the titled unit unless expressly granted.
Estate property: Where the principal died, the SPA is extinguished; the sale must be by the heirs or the estate representative (with court approvals where required).
Corporate owners: Use a Board Secretary’s Certificate plus the corporation’s SPA/board resolution naming the signatory and scope.

Quick compliance checklist

SPA is written, notarized, specific, and identifies the property.
If executed abroad: apostilled/consularized; original available.
Spousal consent (or proof of exclusive property) is attached if applicable.
Commercial parameters (price, terms) are stated or separately approved in writing.
Self-dealing prohibited unless expressly allowed with safeguards.
Taxes (CGT/CWT, DST) and eCAR steps mapped; TINs secured.
Transfer Tax paid; Real Property Tax clearances obtained.
Deed and supporting documents ready for Registry of Deeds; SPA presented/annotated as required.
Revocation procedure understood; notice mechanisms in place.

Final takeaways

For real property transfers in the Philippines, an SPA with explicit powers is non-negotiable when an agent acts.
Formality (notarization, apostille/consularization) and precision of powers make the difference between a smooth registration and a void or unregistrable transaction.
Align the SPA’s commercial terms with the intended deal, secure consents, and plan taxes and timelines early. When in doubt, refine the SPA before signing the sale documents.