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This article was originally published on June 1, 2022 and has been updated to reflect recent legal developments.
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
May anyone be a lessee?
No.
The Civil Code provides that the persons disqualified to buy referred to in Articles 1490 and 1491, are also disqualified to become lessees of the things mentioned therein. (Article 1646).
Articles 1490 and 1491 of the same Code provides:
“ARTICLE 1490. The husband and the wife cannot sell property to each other, except:
- When a separation of property was agreed upon in the marriage settlements; or
- When there has been a judicial separation of property under Article 191.
ARTICLE 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another:
- The guardian, the property of the person or persons who may be under his guardianship;
- Agents, the property whose administration or sale may have been intrusted to them, unless the consent of the principal has been given;
- Executors and administrators, the property of the estate under administration;
- Public officers and employees, the property of the State or of any subdivision thereof, or of any government-owned or controlled corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale;
- Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession;
- Any others specially disqualified by law.”
A husband and a wife cannot lease to each other their separate properties except:
- If a separation of property was agreed upon in the marriage settlement;
- If there has been a judicial separation under Art. 135 of the Family Code.
What are the reasons for the disqualification? To prevent prejudice to creditors; and to prevent the stronger spouse from influencing unduly the weaker spouse.
Persons referred to under Art. 1491 are disqualified because of fiduciary relationships.
While foreigners in general cannot buy rural or urban lands, they may become lessees thereof since the reason for the law — fiduciary relationship — does not exist in this case. (Smith, Bell and Co. v. Reg. of Deeds, 96 Phil. 53). Hence, foreigners may lease land from others.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.
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