Guide 2: When the Owner Isn't the Only Signer Part of a series for Philippine property sellers

Guide 2: When the Owner Isn't the Only Signer

Part of a series for Philippine property sellers

Having a clean title in your name isn't always the end of the ownership story. Under Philippine law, the person named on the title isn't always the only person who has to agree to sell it — and finding this out late is one of the most common reasons a deal stalls right before closing.

This guide covers the three situations where someone else's signature, consent, or legal clearance is needed alongside yours: marriage, selling by proxy, and inheritance.

1. Married Sellers: Why Your Spouse Usually Has to Sign Too

Even if the title is in your name alone, your spouse's consent may still be legally required to sell — because of how the property regime works, not because of whose name appears on paper.

• If you married without a prenuptial agreement, property acquired during the marriage generally falls under the Absolute Community of Property (for marriages from August 3, 1988 onward) or Conjugal Partnership of Gains (for marriages before that date, unless another regime was chosen). Either way, the property is typically owned jointly, and both spouses must sign the Deed of Absolute Sale — even if only one name is on the title.

• If you have a valid prenuptial agreement establishing separation of property, you may be able to sell on your own — but you'll want your lawyer to confirm this based on the actual agreement, since the details matter.

• Property owned before the marriage may remain separate property, but this can get complicated if the property was later improved or the mortgage was paid off using conjugal funds. Worth clarifying before you assume you can sign alone.

What to prepare: your marriage certificate, and if applicable, a copy of any prenuptial agreement. If your spouse can't be physically present at signing, they'll need to execute a Special Power of Attorney (see below) specifically authorizing the sale.

2. Selling Through a Representative: The Special Power of Attorney (SPA)

If you're an OFW, based abroad, or simply unable to be present for signing and processing, you can authorize someone else to act on your behalf — but only with a properly executed Special Power of Attorney.

A few things buyers and their lawyers will check closely:

• The SPA must be specific. A general authorization isn't enough — it needs to explicitly state that the attorney-in-fact is authorized to sell the particular property, sign the Deed of Sale, and receive payment (if that's intended).

• Where it's signed determines the process.

  • Signed in the Philippines: notarized by a Philippine notary public.

  • Signed abroad: it needs to go through apostille at the Philippine consulate or embassy with jurisdiction (or the relevant apostille authority in that country), for it to be recognized by Philippine registries and government offices. An SPA executed overseas without this step generally won't be accepted.

• Check the validity period. Some SPAs specify an expiration date; expired ones need to be re-executed before the transaction can proceed.

What to prepare: the SPA itself (original, properly notarized or apostilled), a valid government ID for both the principal and the attorney-in-fact, and — if the SPA is in a foreign language — a certified translation.

3. Selling Inherited Property: Settling the Estate First

This is usually the most involved of the three, and the one that surprises sellers most often: heirs generally cannot sell inherited property until the estate has been legally settled, even if everyone in the family agrees on who gets what.

Here's the general path, assuming the deceased left no will (intestate) and there's no dispute among heirs:

• Death Certificate — issued by the Philippine Statistics Authority (PSA)

• Extra-Judicial Settlement of Estate (EJS) — a notarized document where all heirs agree on how the estate, including the property, will be divided. This requires agreement from all heirs; if even one heir doesn't agree or can't be located, the estate typically must go through judicial settlement in court instead—a longer and more expensive process.

• Affidavit of Self-Adjudication — used instead of an EJS only when there is a single heir who is adjudicating the entire estate to themselves.

• Publication requirement — the EJS (or Affidavit of Self-Adjudication) must be published in a newspaper of general circulation, once a week for three consecutive weeks. This is a legal requirement, not optional, and buyers' lawyers will ask to see proof of publication.

• Estate Tax — the estate tax must be settled with the BIR, and the corresponding eCAR (Certificate Authorizing Registration) for the estate transfer obtained, before the title can be transferred out of the deceased's name and into the heirs' names — a necessary step before it can then be sold to a buyer.

Only once the property is retitled in the heirs' names (or the heirs sign jointly as sellers, per local practice and your lawyer's guidance) can the sale to a third-party buyer proceed.

What to prepare: PSA death certificate, EJS or Affidavit of Self-Adjudication, proof of newspaper publication, BIR estate tax return and payment confirmation, and the eCAR for the estate transfer.

A Word on Timing

Of the three situations above, an inherited property with an unsettled estate takes by far the longest to prepare — often several months once you account for publication and BIR processing. If this applies to you, start the estate settlement process before you list the property, not after you've already found a buyer expecting a quick close.

Your Checklist

• Confirmed whether your property regime requires spousal consent to sell

• Marriage certificate (and prenuptial agreement, if any) on hand

• If selling by proxy: SPA drafted, specific to this sale, properly notarized or apostilled

• If inherited: death certificate secured

• If inherited: Extra-Judicial Settlement or Affidavit of Self-Adjudication executed

• If inherited: publication requirement completed, proof retained

• If inherited: estate tax settled and eCAR obtained

• Property retitled to heirs' names (if applicable) before proceeding to sale

This guide is for general informational purposes and isn't a substitute for advice from a licensed lawyer, especially for estate settlement, which can vary significantly based on your family's specific situation. A lawyer's guidance is strongly recommended for any inherited property or contested estate.

Previous in the series: Guide 1 — The Ownership & Title Check-Up Next in the series: Guide 3 — Pricing It Right