Who Can Legally Process a Deed of Sale for Real Property in the Philippines (A comprehensive primer for buyers, sellers, and practitioners)
1. Why the “processor” matters
A deed of sale (most commonly a Deed of Absolute Sale or “DOAS”) does two critical things:
- Transfers ownership under Article 1624 of the Civil Code and Presidential Decree 1529 (Property Registration Decree).
- Triggers taxes and registration before the Bureau of Internal Revenue (BIR) and the Registry of Deeds (RD).
Because real property is registered land under the Torrens system, who prepares, signs, notarizes, files, and pays on the deed directly affects its validity and the eventual issuance of a new Certificate of Title.
2. The core legal actors
| Stage | Minimum legal capacity required | Key statutes / rules |
|---|---|---|
| Drafting the deed | (a) Any party to the sale or (b) a Philippine attorney-at-law in good standing | Art. 1390–1392 & 1403 Civil Code (voidable/void contracts); Code of Professional Responsibility; Unauthorized Practice of Law doctrine |
| Signing the deed | Seller(s) and Buyer(s) in their own names or through an Attorney-in-Fact (AIF) holding a Special Power of Attorney (SPA) | Art. 1878 Civil Code (SPAs for sale of immovables) |
| Notarization | Notary Public (must be a lawyer under the 2004 Rules on Notarial Practice) | 2004 Rules on Notarial Practice; Sec. 1 Rule 132 Rules of Court |
| BIR tax processing | Any party or authorized representative (SPA or Secretary’s Cert. for corporations) | NIRC 1997, as amended; BIR RRs 13-99, 14-20, etc. |
| LGU transfer tax | Same as BIR | Local Government Code (RA 7160) |
| Registration with RD | Owner on record or authorized representative | P.D. 1529; LRA circulars |
3. Who may draft and prepare the deed
The Parties Themselves Parties may prepare their own contract. No law forbids a layperson from drafting a deed covering his or her own property. The risk lies in technical errors, not legality.
Philippine Lawyers
- Only a bona-fide lawyer may charge a fee for preparing a deed (otherwise it is unauthorized practice of law).
- Lawyers also ensure compliance with form, legal capacity, and tax consequences.
Licensed Real-Estate Practitioners (RA 9646)
- Brokers and salespersons may facilitate and fill in blanks in standard templates as part of their brokerage function, but they cannot represent that they are giving legal advice or charge a separate “document drafting fee.”
- They often act together with the parties’ lawyers or provide a liaison service under SPA.
Public or Free-Legal-Aid Lawyers
- Public Attorney’s Office (PAO) or Integrated Bar of the Philippines (IBP) chapters may draft deeds for indigent clients.
Tip: If a “processor” is neither a party nor a lawyer, ask under whose SPA they are acting and insist on seeing the original SPA or board resolution.
4. Who may sign the deed
| Signatory | Documentary authority required |
|---|---|
| Individual owner | Valid government ID matching the title. |
| Spouses (conjugal/ACP property) | Both must sign, or the nonsigning spouse must issue a notarized Written Consent (Art. 96, 124 Family Code). |
| Corporation | Board Resolution & Secretary’s Certificate designating signatory (Sec. 42, RA 11232). |
| Estate | Judicial administrator (by court order) or all heirs with a Deed of Extrajudicial Settlement + Sale under Rule 74 Rules of Court. |
| Minor or Incapacitated owner | Court-approved sale through a guardian ad litem (Rule 96 ROC; A.M. No. 03-02-05-SC). |
| Overseas Filipino | SPA executed abroad & apostilled (or consularized) per the 1961 Hague Convention and DFA guidelines. |
5. The Attorney-in-Fact (AIF) and Special Power of Attorney
- Form: Must be duly notarized (or apostilled if signed abroad).
- Content: Must specifically authorize the sale of the particular parcel (Art. 1878 Civil Code).
- Capacity: The AIF must be of legal age and possess capacity to act.
- Scope: The AIF can sign the deed, pay taxes, and follow through with registration, but cannot perform acts beyond the SPA (e.g., waive assessment without authority).
- Expiration: Automatically ends upon death of the principal, revocation, or completion of the sale.
6. Role of the Notary Public
- Verifies identity through competent evidence (IDs or credible witness; Sec. 12, 2004 Rules).
- Confirms voluntariness of signatories.
- Attaches notarial seal converting the private deed into a public instrument, admissible in court without further proof (Rule 132, Sec. 23 ROC).
- Notarial Register entry: Failure to record can void the notarization and expose the notary to suspension.
Only a Philippine lawyer may be commissioned as a notary (except in some non-lawyer provinces, which no longer exist). Beware of “roving” notaries without a fixed notarial place of business.
7. After signing: Who may process taxes and registration?
| Task | Who can appear | Practical notes |
|---|---|---|
| BIR ONETT/eCAR filing | Seller, Buyer, AIF, licensed broker with SPA | Documentary Stamp Tax (DST), 6 % Capital Gains Tax or 15 %/0 % if exempt, and 1.5 % Creditable Withholding for certain corporate sellers. |
| LGU Transfer Tax | Same as BIR | Rate: up to 0.75 % of zonal/fair market value. |
| Register of Deeds | Buyer or AIF (Buyer's side) | Must present: (a) Stamped Deed, (b) eCAR, (c) Tax Clearance, (d) Transfer Tax Receipt, (e) Owner’s Duplicate Title, (f) Entry of Real Property Tax (RPT) payments. |
Fixers are not legally recognized actors—using them risks loss of documents or void transactions.
8. Common special situations
- Condominium units: Corporation Code and Master Deed may require developer clearance.
- Agricultural land over 5 ha.: DAR clearance if not already fully-retained.
- Foreign buyer: Must qualify under constitutional exceptions (e.g., condominium or hereditary succession).
- Foreclosed property: Ex-officio sheriff or mortgagee bank officer signs, by virtue of the final foreclosure certificate.
- Judicial partition: Court-approved project of partition + deed signed by appointed commissioner.
9. Prohibitions and penalties
| Violation | Legal basis | Sanction |
|---|---|---|
| Unauthorised practice of law (non-lawyer drafting for a fee) | Art. 149 of the RPC; SC A.C. rulings | Criminal liability + contempt of court. |
| Falsification or simulation of signatures | Art. 171 RPC | Reclusion temporal + fine. |
| Fake SPA / Notarization | RPC & Notarial Rules | Disbarment (if lawyer) + criminal charges. |
| Unlicensed brokerage | RA 9646 | Up to ₱100,000 fine + imprisonment 2–4 years. |
10. Practical checklist for parties
- Verify identity of everyone signing; insist on original government IDs.
- Examine title (TCT/CCT) for liens.
- Demand SPA or corporate resolution if signatory is not the registered owner.
- Engage a lawyer for drafting, especially where large consideration, special tax issues, or estate property is involved.
- Use licensed brokers and get their PRC/HLURB numbers.
- Attend notarization in person; sign only before the notary.
- Keep certified copies of notarized deed, eCAR, and stamped title for your files.
11. Key takeaways
- Only the parties or a licensed Philippine lawyer may legally draft a deed of sale for compensation.
- Signing may only be done by the owner(s) or an attorney-in-fact with a notarized SPA that specifically covers the sale.
- Notarization must be performed by a lawyer-notary public, turning the deed into a public instrument.
- Processing with BIR, LGU, and RD can be delegated to any competent adult if armed with the proper SPA or corporate authority—but delegating it to fixers or unlicensed agents is both risky and potentially unlawful.
Disclaimer: This article is for general educational purposes and does not constitute legal advice. Laws and regulations change; always consult a Philippine lawyer or the relevant government agency for current requirements.