Special Power of Attorney (SPA) in the Philippines
A comprehensive legal guide
1. Concept and Legal Foundation
| Key provision | Summary |
|---|---|
| Civil Code, Art. 1868 | Agency is “a contract whereby a person (the principal) binds himself to another (the agent or “attorney‑in‑fact”) to render some service or to do something in representation or on behalf of the principal.” |
| Civil Code, Art. 1874 | **Sale or encumbrance of real property requires the authority of the agent to be contained in a public instrument (i.e., notarized). |
| Civil Code, Art. 1878 | Enumerates acts that always require a Special Power of Attorney. |
| 2004 Rules on Notarial Practice | Prescribes how a document becomes a “public instrument” (personal appearance before a notary, competent proof of identity, complete notarial certificate, entry in the notarial register, etc.). |
| National Internal Revenue Code, §195 | Imposes ₱ 5.00 documentary‑stamp tax on every power of attorney, including an SPA. |
A Special Power of Attorney is therefore a written, notarized, specific mandate that empowers an agent to perform one or more distinct or extraordinary acts on the principal’s behalf. It is stricter than a General Power of Attorney (GPA), which covers acts of administration and routine affairs.
2. When an SPA is Statutorily Required (Art. 1878 list)
An SPA (not merely a GPA) is indispensable for an agent to:
- Make or accept gifts (donations) except as specified in Arts. 752 & 771.
- Convey or create real rights over immovable property (sale, mortgage, lease >1 year, etc.).
- Enter into contracts that extinguish or modify real rights over immovables.
- Take out loans or borrow money in the principal’s name.
- Endorse or negotiate commercial papers or checks.
- Obligate a principal as a surety or guarantor.
- Create or convey any real right over personal property requiring registration (e.g., chattel mortgage).
- Bind the principal to render services regulated by special laws (e.g., construction under the Contractors’ License Law).
- Accept the principal’s inheritance or repudiate it, or compromise on hereditary rights.
- Enter into compromises or amicable settlements, confess judgment or submit to arbitration.
- Make or enter into leases of real property for more than one year.
- Bind the principal in marriage settlements or for any act that must comply with the Family Code (e.g., management of community property).
- Perform any other act expressly required by law to be done with a special authority (e.g., waiver of rights in litigation under the Rules of Court).
Doctrine: A third person dealing with an agent must examine the SPA; without it, the act may still bind the agent personally but not the principal, and—for real property—the transaction is void.
3. Formal Requirements
| Requirement | Brief explanation / practice tip |
|---|---|
| Written document titled “Special Power of Attorney” | Include a clear, specific title to avoid confusion with GPAs. |
| Notarization (public instrument) | The principal must sign in person before a notary public. The notary must verify two competent IDs (unless personally known) and enter the act in the Notarial Register. |
| Principal’s details | Full legal name, civil status, nationality, residence address, Tax Identification Number (TIN) if available. |
| Agent’s details | Full name, citizenship, address, TIN (or at least one government ID). |
| Specific grant of authority | Enumerate each act in precise, unequivocal language (e.g., “To sell my parcel of land covered by TCT No. 123456 with an area of 250 sq m in Brgy. San Roque, Quezon City for not less than ₱₱5,000,000”). |
| Property description | For real estate: technical description or TCT/CCT number, area, location, and boundaries. |
| Date and place of execution | Material for determining validity vis‑à‑vis later instruments or revocation. |
| Witnesses (good practice) | Although not strictly required by the Civil Code, two credible witnesses help prove due execution if the SPA is later questioned. |
| Documentary‑stamp tax (DST) | Affix a ₱ 5.00 documentary‑stamp on or before notarization. (Some notaries roll this into their fee; check the stamp is actually affixed.) |
| Authentication for use abroad | If executed abroad, the SPA must be: • Apostilled under the Apostille Convention (effective for PH on 14 May 2019); or • Consularized at a Philippine embassy/consulate if the country is not an Apostille party. Certified copies must be translated if not in English or Filipino. |
| Registration / annotation | • For land transactions, the Register of Deeds requires the original SPA with all pages duly notarized and ribbon‑sewn. • Banks, BIR, SEC, and LRA may require the SPA to be less than a year old; always ask the receiving office for any extra formalities. |
4. Scope and Limits of Authority
- Rule of strict construction – Powers must be interpreted strictly; an agent cannot exceed what is expressly or necessarily implied.
- “Includes the lesser” principle – An authority to sell includes authority to receive the purchase price, but not to reinvest or donate it unless specifically stated.
- Sub‑agency – The agent may not appoint a sub‑agent without an express clause allowing delegation (Art. 1892).
- Protection of third parties in good faith – Where the SPA is recorded (e.g., annotated on the title), reliance on what the public instrument says is generally protected.
5. Termination and Revocation
| Mode of termination | Key points |
|---|---|
| By act of parties | The principal may revoke at will (Art. 1920); must also notify the agent and third persons. Best practice: execute & record a revocation and publish a notice in a newspaper. |
| By accomplishment of the object | SPA ceases once the authorized act is completed. |
| Expiration / fixed term | If the SPA states a validity period, authority lapses automatically. |
| Death, civil interdiction, insanity, insolvency | Of either principal or agent (Art. 1919) revokes the SPA; exceptions protect third parties who contracted in good faith before learning of the death (Art. 1931). |
| Dissolution of a juridical person | If the principal or agent is a corporation/partnership that loses legal personality. |
Practice note: If a real‑property transfer is executed after the principal dies but before the buyer learns of the death and the SPA was genuine, the sale may be upheld (Art. 1931; Heirs of Malate v. Gamboa, G.R. 197590, 29 June 2016).
6. Corporate and Partnership SPA
- Board Resolution – A corporation grants authority through a board resolution which is then embodied in an SPA signed by a corporate officer and accompanied by a Secretary’s Certificate.
- SEC filing – Large or unusual transactions (e.g., sale of substantially all assets) may require prior SEC approval.
- Partnership – Acts that are beyond ordinary business need unanimous consent (Civil Code, Art. 1818).
7. Common Use‑Cases & Government Checklists
| Use‑case | Typical additional requirements |
|---|---|
| Sale of registered land | Owner’s duplicate title, latest tax declaration & tax clearance, Bureau of Internal Revenue (BIR) Certificate Authorizing Registration (CAR), SPA authenticated if executed abroad. |
| OFW buying/selling property | SPA often apostilled abroad; original passport of agent when signing the Deed of Sale. |
| Bank loan / mortgage | Bank‑supplied SPA form + notarized IDs of principal & agent; sometimes specimen signatures card. |
| Litigation | SPA attached to pleadings; if corporate, must show proof that signatory is duly authorized (jurisprudence: UCT v. Yap, G.R. 204512, 07 Sept 2020). |
| Estate settlement | Heirs often execute an SPA allowing a lead heir to process BIR estate taxes and transfer titles. |
8. Selected Jurisprudence
- Spouses David v. Tiongson, G.R. 194613 (08 Apr 2015) – Invalidated sale of conjugal property signed only by the husband without a SPA from the wife.
- Heirs of Malate v. Gamboa, G.R. 197590 (29 Jun 2016) – Protected a buyer who relied on an SPA despite principal’s death unknown to him.
- Radaza v. People, G.R. 272668 (27 Jul 2022) – Criminal liability for using a falsified SPA; court stressed the need for personal appearance.
- Land Bank v. Cacayuran, G.R. 191667 (22 Jun 2022) – Distinguishes GPA vs. SPA; bank held liable for honoring checks endorsed without the SPA mandated in Art. 1878(5).
9. Drafting Checklist (Quick Reference)
- Caption: “SPECIAL POWER OF ATTORNEY”
- Parties: Full names, civil status, nationality, addresses, IDs/TINs.
- Whereas clauses (optional): Context.
- Grant of authority: Enumerate and number each power.
- Limitations / minimum price / terms (for sale, loans, etc.).
- Agent’s authority to receive funds? issue receipts? delegate?
- Validity period or statement that it “shall remain in force until revoked.”
- Undertaking to ratify acts of agent.
- Signature block: Principal signs above printed name.
- Witness lines: Two witnesses sign.
- Acknowledgment page: Notary public with complete jurat or acknowledgment.
- DST affixed and canceled.
10. Practical Pitfalls and How to Avoid Them
| Pitfall | Avoidance tip |
|---|---|
| Blank spaces or “to be filled later” | Fill everything before notarization; otherwise violates Notarial Rules and invites fraud. |
| Insufficient property description | Use exact TCT/CCT number, lot & block, area, and technical description if available. |
| Out‑of‑date IDs at notarization | Both principal and agent must present current government‑issued IDs; passports may serve even if principal signs abroad. |
| Assuming “general” authority is enough | For any Act under Art. 1878, general wording is worthless; state the exact act. |
| Forgetting to revoke past SPAs | Issue a notarized Revocation of SPA, have it served on the agent, and register/annotate it if real property is involved. |
| SPA executed abroad but not apostilled/consularized | Philippine offices will reject it; always check host country’s procedure early. |
11. Frequently Asked Questions
| Question | Short answer |
|---|---|
| Does an SPA expire automatically after 1 year? | No. It remains valid until its own expiry date, revocation, or by operation of law (death, etc.). Some agencies (BIR, banks) impose internal “freshness” rules, so the agent may need a new SPA for each transaction. |
| Can one SPA cover several properties? | Yes, but describe each property separately and still pay only one DST of ₱ 5.00. |
| Is e‑notarization allowed? | Only under the Supreme Court’s Interim Rules on Remote Notarization (A.M. No. 20‑07‑04‑SC) issued during COVID‑19, subject to strict video‑conferencing and authentication requirements. |
| May spouses sign a single SPA? | Yes; indicate both as co‑principals, each must sign and be identified before the notary. |
| What if the agent signs beyond the SPA? | The act is unenforceable against the principal unless ratified (Art. 1898). Third persons may sue the agent for breach of warranty of authority. |
12. Sample Clause (illustrative)
“I, JUAN D. CRUZ, of legal age, Filipino, married, and residing at 123 Mabini Street, Pasig City, do hereby NAME, CONSTITUTE and APPOINT MARIA R. SANTOS, likewise of legal age, Filipino, single, and residing at 45 Rizal Avenue, Pasig City, as my true and lawful Attorney‑in‑Fact, for me and in my name, place, and stead, to SELL for a price not lower than Five Million Pesos (₱ 5,000,000.00) my parcel of land covered by Transfer Certificate of Title No. 123456, situated in Barangay San Roque, Quezon City, with an area of Two Hundred Fifty (250) square meters, together with all improvements thereon; to sign, execute, and deliver the corresponding Deed of Absolute Sale; to receive the purchase price and issue the pertinent receipts; to secure tax clearances and other permits; to sign and file all documents with the Bureau of Internal Revenue, Registry of Deeds, Quezon City Assessor’s Office and all other offices, and to do all acts necessary to effect a valid transfer of title.”
Include standard ratification and substitution clauses as needed.
13. Conclusion
A Special Power of Attorney is deceptively simple but legally potent. Because the Philippines strictly protects property rights and formalities, a defective SPA can sink an otherwise valid deal. Always (1) draft with precision, (2) adhere to notarization rules, (3) pay the DST, and (4) keep track of revocation and expiry. When acting abroad, clear authentication under the Apostille Convention—or consularization—is imperative. Observing these requirements saves time, money, and litigation later.
Disclaimer: This article is for informational purposes and does not constitute legal advice. Consult a Philippine lawyer for advice tailored to your specific situation.