Letter to a Lawyer

Dear Attorney,

I hope this letter finds you well. I am a dual citizen of the Philippines and another country. My spouse, who is a holder of a Special Resident Retiree’s Visa (SRRV), and I are in the process of purchasing a parcel of land in the Philippines. Due to my work commitments abroad, I will not be able to travel to the Philippines at will. Hence, I would like to know if I can execute a Special Power of Attorney (SPA) authorizing my spouse to represent me for the property purchase.

Could you please advise on the legal requirements, limitations, and steps involved in this situation? I want to ensure that all formalities are properly observed under Philippine law. Any guidance you can provide on the necessary documents, the procedure for notarization, or consular authentication would be greatly appreciated.

Thank you for your time, and I look forward to your legal opinion.

Respectfully yours,

[Concerned Purchaser]

Legal Article: Comprehensive Discussion on Executing a Special Power of Attorney for Land Transactions in the Philippines When One Spouse Is a Dual Citizen and the Other Is an SRRV Holder

In the Philippine legal landscape, real estate transactions must comply with constitutional and statutory limitations, especially if foreign nationals or those with special visas are involved. This article serves as a thorough analysis of the relevant provisions on land ownership, the nature of a Special Power of Attorney (SPA), the rights and responsibilities of dual citizens, and the implications of an SRRV (Special Resident Retiree’s Visa) in real property transactions. We will also address practical considerations, such as notarization, consular authentication, and registration processes.

1. Philippine Constitutional Restrictions on Land Ownership

1.1 General Rule
Article XII of the 1987 Philippine Constitution imposes restrictions on land ownership, limiting it primarily to Filipino citizens or to corporations/associations at least sixty percent (60%) of whose capital is owned by Filipino citizens. This rule ensures that the majority of real property within the Philippines remains under local control.

1.2 Implications for Dual Citizens
Republic Act No. 9225 (the “Citizenship Retention and Re-acquisition Act of 2003”) allows natural-born Filipinos who have acquired foreign citizenship to retain or re-acquire their Philippine citizenship. Once re-acquired or retained, these dual citizens regain full civil and political rights—including the right to own land in the Philippines. Thus, if you are a dual citizen, you possess the same rights as any other Filipino citizen regarding land acquisition.

1.3 Foreign National Limitations
Non-Filipino citizens, in general, cannot own private lands in the Philippines unless they qualify under specific exceptions (e.g., by virtue of hereditary succession, or if they acquire condominium units under the Condominium Act, provided the foreign national does not exceed the 40% ownership cap for the building or project). In the context of an SRRV holder, the holder generally does not have the same rights to own land as a Filipino citizen, unless other laws or exceptions apply.

2. Special Resident Retiree’s Visa (SRRV)

2.1 Overview
The SRRV is a type of visa issued by the Philippine Retirement Authority (PRA) that grants certain privileges to foreign retirees. While it allows extended stay in the Philippines with multiple-entry privileges, it does not, in and of itself, grant absolute rights to own land.

2.2 Investor’s Option
Some SRRV-holders can invest in condominium units or long-term leaseholds under certain guidelines. However, they are still subject to the constitutional prohibition that precludes foreigners from owning land. The SRRV does not act as a substitute for Filipino citizenship in terms of land ownership rights.

2.3 Spousal Implications
When a foreign spouse holds an SRRV, the typical method of acquiring land is through the Filipino citizen spouse, assuming they validly hold or have re-acquired Filipino citizenship. In marital property regimes, property acquired by the Filipino spouse may form part of the conjugal property, subject to the Family Code’s provisions on property relations between spouses.

3. Dual Citizenship Rights and Limitations

3.1 Retained Citizenship
As a dual citizen under RA 9225, you are effectively recognized by the Philippine government as a Filipino, and thus you may purchase, own, and register real property in your name, subject to compliance with other legal requirements such as property registration and payment of applicable taxes.

3.2 Marital Property Considerations
It is also important to consider the Family Code of the Philippines when dealing with property transactions between spouses. If you are under an absolute community of property regime or a conjugal partnership of gains, your spouse would have certain rights and obligations with respect to the property you acquire during the marriage. Even if your spouse is a foreigner or an SRRV holder, the property may form part of the conjugal or community property if the applicable property regime so dictates.

3.3 Restrictions on Foreign Spouse Participation
Although you can fully own the property, your foreign spouse (the SRRV holder) cannot co-own it as a matter of constitutional law, unless in exceptional circumstances involving hereditary succession. However, nothing in the Constitution prohibits you from naming your spouse as your attorney-in-fact to facilitate administrative and transactional matters on your behalf.

4. Special Power of Attorney (SPA) Explained

4.1 Definition and Scope
A Special Power of Attorney (SPA) is a legal instrument by which a principal (you, as the owner or prospective owner) delegates specific, limited authority to an attorney-in-fact (in this case, your spouse or another trusted individual) to act on your behalf in one or more transactions. This authority is narrower than a General Power of Attorney, which grants broad powers over the principal’s affairs.

4.2 Purpose in Real Estate Transactions
In real estate transactions, an SPA is often executed when the principal cannot personally appear to negotiate, sign documents, or attend meetings. Typical real estate-related powers that may be granted include signing the Deed of Sale, liaising with government agencies, obtaining the Certificate Authorizing Registration (CAR) from the Bureau of Internal Revenue (BIR), paying taxes, and registering documents with the Register of Deeds.

4.3 Legal Requirements for a Valid SPA

Capacity of the Principal: The principal must be of legal age and mentally competent.
Clear and Specific Powers: The SPA should enumerate the exact powers delegated to the attorney-in-fact.
Proper Form: Under Philippine law, an SPA granting the power to sell or acquire real property must be in writing and notarized.
Notarization and Authentication: If executed abroad, the SPA must generally be notarized and authenticated (consularized) by the Philippine Embassy or Consulate with jurisdiction over the area where the document is executed, unless the country is a signatory to the Apostille Convention.

5. Executing an SPA Abroad: Notarization, Consularization, and Apostille

5.1 Notarization
A valid SPA requires acknowledgment before a notary public. When executed abroad, you typically must acknowledge the SPA before a local notary public who is authorized under the laws of that foreign country.

5.2 Consularization
Consularization is the process by which the document (SPA) is certified by the Philippine Embassy or Consulate. They attest that the notary public who notarized your SPA was duly authorized in that foreign jurisdiction. This step ensures that the document has legal effect in the Philippines and can be presented to government agencies and courts without question as to its authenticity.

5.3 Apostille
With the implementation of the Apostille Convention in the Philippines, certain countries no longer require consularization and instead use the apostille process. An apostille is a certificate that authenticates the origin of a public document (such as a notarized SPA) for use in another country that is also a member of the Apostille Convention. You should verify if the country where you execute the SPA is a signatory and if the document can be apostilled instead of consularized.

6. Drafting the SPA: Essential Clauses

6.1 Introductory Statement
State the identity and capacity of the principal, confirming your status as a Filipino citizen or a dual citizen. Include your personal circumstances, but omit unnecessary personal details in line with data privacy.

6.2 Appointment and Grant of Powers
Explicitly identify your spouse (or chosen attorney-in-fact) and delineate the scope of authority—e.g., to sign the Deed of Sale, to pay taxes, to secure clearances from government agencies, and to register the property under your name.

6.3 Property Description
Include a concise yet accurate description of the subject property, identifying it by its technical description, tax declaration number, or location so that there is no ambiguity.

6.4 Ratification Clause
Add a statement indicating that you will ratify all lawful acts your attorney-in-fact performs under the granted authority.

6.5 Duration and Revocation
Specify whether the SPA is effective for a set period or remains valid until the transaction is complete. Include a clause that allows you to revoke the SPA at any time, provided that revocation is done in a legally recognized manner.

7. Effects on Registration and Post-Transaction Requirements

7.1 Bureau of Internal Revenue (BIR)
Before registration with the Register of Deeds, all taxes (Capital Gains Tax or Creditable Withholding Tax, as applicable, plus Documentary Stamp Tax) must be paid. An attorney-in-fact with a properly executed SPA can sign the BIR forms and other relevant documents on your behalf.

7.2 Register of Deeds (RD)
The attorney-in-fact can likewise present the Deed of Sale and supporting documents to the RD for issuance of a new Transfer Certificate of Title (TCT) in your name. The RD typically requires:

The notarized or apostilled/consularized SPA.
The owner’s duplicate certificate of title (if a transfer is occurring).
The executed Deed of Sale.
Proof of payment of taxes and fees.

7.3 Local Government Units
Payment of transfer taxes to the provincial or city treasurer’s office may also be delegated to the attorney-in-fact. Additionally, the SPA can empower your representative to secure the tax clearance and other local government permits or clearances necessary for the transfer.

8. Practical and Ethical Considerations

8.1 Trust and Accountability
Granting an SPA involves risk. Choose an attorney-in-fact you trust implicitly, as this person can bind you in legal transactions. If your spouse holds an SRRV, ensure they fully understand the scope and limitations of their authority, especially since ownership rights are exclusive to you as a Filipino or dual citizen.

8.2 Potential Conflict of Interest
Although it is common for spouses to act on behalf of each other, be mindful that your foreign spouse cannot legally co-own the land. Strictly delineate in the SPA that the principal, as a Filipino citizen or dual citizen, remains the sole purchaser.

8.3 Professional Assistance
Even if you appoint your spouse as attorney-in-fact, engaging the services of a Philippine lawyer or a notary with expertise in real estate matters is prudent. They can ensure the SPA and subsequent documents comply with all legal requirements.

8.4 Revocation and Updating the SPA
If circumstances change—e.g., you decide to handle transactions in person, or you shift to another representative—execute a notarized revocation of the SPA and furnish copies to all relevant parties.

9. Frequently Asked Questions

9.1 Is an SPA Necessary if I am Physically Present?
No. The primary purpose of an SPA is to authorize someone to act on your behalf in your absence. If you are present and can sign documents yourself, the SPA is unnecessary.

9.2 Do I Need Separate SPAs for Different Actions?
You may combine all real-estate-related powers in a single SPA. However, clarity is paramount: list every act you want your attorney-in-fact to perform. If you require them to handle other transactions, such as banking or financing, consider drafting a separate SPA or a broader General Power of Attorney.

9.3 Can My SRRV-Holder Spouse Also Acquire the Land Jointly?
Generally, no. The Constitution restricts land ownership to Filipino citizens or qualified entities, so the SRRV holder does not share in ownership. However, your spouse can facilitate the transaction under the SPA as attorney-in-fact.

9.4 Is a “Consularized” SPA Different from an “Apostilled” SPA?
Both are valid methods of authenticating a document for use in the Philippines. If you are in a country that adheres to the Apostille Convention, an apostille can substitute the need for consularization.

9.5 What Documents Do I Need to Submit to Prove Dual Citizenship?
When registering the land, present your Philippine passport or certificate of re-acquisition/retention of Philippine citizenship issued under RA 9225. This assures the Register of Deeds that you are a Filipino with the constitutional right to own property.

10. Step-by-Step Procedure

Draft the SPA
- Ensure it contains precise language granting the necessary authority.
- Identify the property and the capacity of both principal (Filipino or dual citizen) and attorney-in-fact (SRRV holder).
Have the SPA Notarized Abroad
- Appear before a local notary public in the country of execution.
Authenticate/Consularize or Apostille the Document
- Visit the Philippine Embassy or Consulate if consularization is required.
- Obtain an apostille instead if the foreign country where the SPA is executed is a signatory to the Apostille Convention.
Send the Original Authenticated SPA to the Philippines
- Your attorney-in-fact in the Philippines will need the original copy for submission to various agencies.
Use the SPA for the Transaction
- Your attorney-in-fact signs the Deed of Sale and other required documents in your name and on your behalf.
Pay Taxes and Secure Government Clearances
- The attorney-in-fact will settle the documentary stamp tax, capital gains tax (if applicable), and secure the Certificate Authorizing Registration (CAR) from the BIR.
Register the Deed of Sale at the Register of Deeds
- Present all required documents, including the SPA, Deed of Sale, tax receipts, and proof of dual citizenship.
- The RD will issue a new Transfer Certificate of Title (TCT) in your name.
Keep Records
- Maintain duplicates or certified true copies of all documents for future reference.

11. Legal Remedies and Disputes

In the event of a dispute or a breach of the attorney-in-fact’s fiduciary duty, legal remedies under the Civil Code and other relevant laws may be available. You can revoke the SPA and file civil or criminal actions if fraud or misrepresentation occurs. Always consult a Philippine attorney to explore litigation or alternative dispute resolution avenues.

12. Conclusion and Best Practices

Check Your Status
- Confirm that you hold dual citizenship under RA 9225, and have all documents proving you are a Filipino citizen for registration purposes.
Draft a Clear and Specific SPA
- Avoid ambiguity. Precisely list powers, define limitations, and ensure compliance with the required form and authentication.
Notarize and Authenticate or Apostille
- Follow the correct procedure to ensure the SPA is legally recognized in the Philippines.
Observe Constitutional Limitations
- Only qualified Filipino citizens or entities with the prescribed Filipino ownership threshold can own land. SRRV holders do not gain land ownership rights solely by virtue of their visa.
Engage Professional Help
- Consult a local lawyer or a notary public experienced in Philippine real estate transactions. This minimizes errors that could jeopardize your property purchase.
Maintain Transparency
- Keep all receipts, forms, and documents properly filed. Ensure that the attorney-in-fact is guided by clear instructions.
Consider Tax Implications
- Capital Gains Tax, Documentary Stamp Tax, and local transfer taxes must be settled. Delays or miscalculations can result in penalties or additional surcharges.
Review and Update the SPA if Needed
- Circumstances change. If you need to expand or reduce the authority granted to your attorney-in-fact, revise the SPA accordingly.

13. Final Word of Caution

While it is entirely permissible for a dual citizen to purchase and register real property in the Philippines, best practice involves a thorough review of relevant laws, rules, and regulations. The SRRV holder-spouse’s involvement is legally restricted to acting as attorney-in-fact rather than as co-owner of the property. Observing these steps ensures the legitimacy and defensibility of the transaction under Philippine law.

Always consult a qualified Philippine lawyer for an in-depth assessment tailored to your unique circumstances. This article provides a general overview but does not replace individualized legal counsel. Laws and regulations can change, so staying informed and seeking professional advice at every stage of the purchase is imperative.

Disclaimer: This written piece is for informational purposes and does not create an attorney-client relationship. For specific guidance or formal legal advice regarding your particular transaction and situation, kindly consult an attorney licensed to practice law in the Philippines.