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should i use a damme for land and 50 year lease?

Discussion in 'Expat Section' started by yogavnture, Jun 3, 2019.

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  1. AndyG

    AndyG DI Member Admin ★ Forum Moderator ★ ★ Global Mod ★ ★ Moderator ★ Showcase Reviewer Blood Donor

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    If people are repeatedly bringing up the risk of extreme action against you then there may be some cause for concern but by stating this conflict is now fun which you are happy to engage in for an extended period of time ("no hurry to sell land") is a form of belittlement that is not tolerated at all well in the Philippine society. It can be precisely this that can tip an adversary from threats to drastic action because shaming is pretty much the worst thing you can do to a Filipino, especially if it's made in a public forum like this. It's my fervent advice you learn to understand this concept absolutely because if someone makes that leap against you, recovery, if it's possible at all, will take a great deal of humility and appeasement.

    I have some compact (20 pages) yet compelling reading on the subject if you're interested.

    I sincerely hope you see my message, based only on what you've said, as an effort to assist your navigation of living here. I don't know the whole story but I am concerned you could be heading down a treacherous path. It's up to you what you do with the information.
     
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    AndyG, Jun 6, 2019
    #41
  2. SkipJack

    SkipJack DI Senior Member

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    I don't know.
    A foreigner cannot purchase land in the Philippines. On the other hand there are ways for a foreigner to exert control of land.

    The leasing of the property for 25 + 25 years is a more realistic scenario. Here the foreigner would lease the property from a Philippine citizen. An irrevocable SPA could be drafted to cover the interests of the lessee (tenant) where they have the ability to represent the owner on issues relating to the use of the land during the lease. For example, the lessee (tenant) would be able to bring a case evicting a squatter. This should work as long as any action aligns with the interests of the owner and the lease.

    The lease would protect the foreigner (lessee/tenant) from the Filipino owner. The SPA would protect the foreigner (lessee/tenant) from everyone else. (Squatters, etc.)

    The foreigner would NOT have the right to sell the property they did not own and keep the proceeds. (This would be a crime against the owner.)

    Below is a reference as the the irrevocability of a SPA:
    An agency, however, cannot be revoked in any of the following instances: 1) if a bilateral contract depends upon it;

    The lease would be the bilateral contract that would depend on the SPA.

    In the below reference, the SPA would not be irrevocable because the friend was not the lessee (tenant). The lease contract did not depend on the SPA.
    https://www.manilatimes.net/instances-power-attorney-cant-revoked/137683/

    In this way the foreigner could live out their life (50 years) on the property. (Assuming they do not get shot.) Then the Filipina owner gets to have it. Or the children if you put it in their names.

    Things get a bit more complicated if they are living together and the relationship becomes troubled. Who throws who out? During the time they were living together they were both tenants on the property. So who should the court favor? The foreigner lessee/tenant over the Filipina owner/tenant? The lease should be written to address this. Many relationships may not survive this discussion.

    ***********
    There are other more complicated options:

    Not all corporations in the Philippines have to be majority owned by Philippine citizens. Only corporations that own land or engage in specific portions of the economy have to be majority owned (60%) by Philippine citizens.

    In considering these other options please realize they all involve a Philippine citizen owning the property or at least 60% of the corporation or trust that owns the property. There are opportunities to adjust who exerts control.

    Below is a link to an opinion from the Philippines Securities and Exchange Commission regarding the ownership of a corporation. This opinion relates to the ownership requirements of an airline corporation in the Philippines. An airline is a public utility and therefore under the constitution falls under similar ownership requirements as land.

    In this case, the corporation is 40% owned by foreigners. (30% “foreigner father”, 10% “foreigner friend”). But 51% of the corporation is controlled by foreigners because as legal guardian of his Filipina daughter the “foreigner father” is able to exert control over her shares too.

    These legal concepts can be extended through the use of irrevocable trusts.

    In my opinion, this scenario is way too complicated for a residence. If you feel the need to protect your assets, for a residence, consider placing ownership in the name of the children and create a lease between you and the children. This may also skip estate taxes. On the other hand your financial situation may be such that you can take the hit. In this case just let her have it.

    Here is the link: (@Rye83 will like this one. It is a real mind twister.)
    https://www.sec.gov.ph/wp-content/uploads/2015/11/Opinion-No.-12-13.pdf

    **********
    Often the administrative and management issues are moot compared to facts “on the ground”.

    @IggyPop pointed out the fact that hit men were less costly than attorneys. This would surely make the legal administration moot.

    @furriner failed to follow the unwritten “one island away from family” rule. Not only was the property not one island away it sounds like it was in the same Barangay as the disgruntled family member. The disgruntled family member was close enough to notice that banana trees had been cut down. Being in the same Barangay causes additional issues as there may be relationships with the family members and the Barangay leadership:
    "Worse, the Barangay captain did not know how to deal with the court order and such and scheduled a formal lupong hearing. At that point we were on the hook for trespass, possibly criminal trespass and destruction of property, he wasn’t sure!"

    *******
    So, @yogavnture already purchased the land for 1.6 million pesos and is considering to “put her family to live on the land at my cost”.

    This is not something I would do. There are two challenges. First being how the extended family influences your spouse during the time that you are living there. The extend family influences add a lot of challenges to the relationship (understated).
    Second, what happens if the relationship sours? Are you going to live there amongst a clan that is unhappy with you? What happens when you show up with your new girlfriend to live in "your" home?
     
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    SkipJack, Jun 6, 2019
    #42
  3. Rye83

    Rye83 with pastrami Admin Secured Account Highly Rated Poster SC Connoisseur Veteran Army

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    That would get old quickly. Without any letters of intent/court orders/calls from the barangay initiated by the guy I would just ignore him, and probably get a laugh out of his lack of a life. I would agree that land litigation is a national sport. I would be curious to see what percentage of court cases involve land/title disputes. I bet it is a significant portion. I would also bet lawyer advocacy groups in the Philippines actively fight any legislation that would modernize or eliminate the most common issues litigants regularly face.

    Minus what you are not allowed to do, I know absolutely nothing about purchasing land. But I'm always up for a drink...when I'm not sitting in a desert in Afghanistan. Hopefully in October I'll be finished for a bit, but that may get extended until December.

    That one took some time to wrap my brain around and I had to pull out a pen and paper to get all the characters lined up in the right corporation but, yeah, that makes sense. I posted a similar SEC opinion a while back that spoke more on the control tests, that were briefly mentioned in the opinion you posted, for corporations.
     
    Rye83, Jun 6, 2019
    #43
  4. furriner

    furriner DI Forum Adept Restricted Account

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    Without any documented actions, it just indicates he is currently out of ideas (for the moment). Of course there are rumors from this guy and his relatives about suing us in a cadastral (as opposed to “civil”) proceeding and the possibility of that does make me curious especially after the strange, surprise call to me wife, where the troublemaker was heard talking in the background. It is a complicated story. Actually I don’t care that much as we aren’t in a hurry to sell; certainly his actions and the continuing rumors that neighbors relate to potential buyers make the land impossible to sell right now because most real estate agents for buyers either know about the problem or they check with neighbors. The commercial buyer we originally had didn’t care about that and only wanted a clean title. But too much time had passed before the title was clean so he dropped the offer. Of course, the landowner I represent (my wife of 32 years lol) could have sued but our attorney given that his claim was frivolous but he advised against it; he doesn’t have much in assets that would make it cost effective.

    As an aside, this guy is in hiding right now (sort of) with a warrant for his arrest for putting up litigation signs (thus trespassing) on other land next to this one, also formerly owned by his family. The attorney that made that warrant happen is the same attorney that my “client” (loving wife) is using. He doesn’t care if he gets thrown in jail for contempt or whatever. I’m quite sure they wouldn’t lock him up anyway. He is older than me, in his eighties, and being in no hurry to sell our kids can just wait for him to pass away before doing something with their inheritance if that turns out to be the case. But I am getting old too and we old guys, given no other choice, should at least have fun arguing with despicable land scammers here who sold us land that they later attached an adverse claim to. I still have pictures of him showing us the boundary markers during the original land sale. He doesn’t know that and they were never used in court as they weren’t needed and may not have been allowed as evidence. Anyway, I should modify my original statement by saying that land SCAMS are a national sport here and whether I like it or not, my wife is in the game and an old guy like me is playing for her to win...& so far she has.


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    furriner, Jun 6, 2019
    #44
  5. Rye83

    Rye83 with pastrami Admin Secured Account Highly Rated Poster SC Connoisseur Veteran Army

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    Could it be that he, like many of the older expats that start trouble and drama, just needs a hobby? Maybe you could pay for him to attend a gardening class or something that old people like doing?
     
    Rye83, Jun 7, 2019
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  6. furriner

    furriner DI Forum Adept Restricted Account

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    This is his current hobby :-)

    [​IMG][​IMG]


    Note the excellent mastery of the English language, (sic) “litagation”, (sic) “uprehended”.


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    furriner, Jun 7, 2019
    #46
  7. Notmyrealname

    Notmyrealname DI Forum Luminary Highly Rated Poster Showcase Reviewer

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    Many have pointed out how you may be putting yourself in danger - no one has the right to harm you but culture and cheap hired guns makes that a possibility. You seem not to care - again you have the right not to care, it is your life you are writing about. Or is it? When a wife, children or family members may be in the firing line then we have to think more than twice. Bullets don't always hit their target and madmen don't care too much about how widely they define a 'target'.

    When I had a dispute with a totally insane landlord (more empowered by his perceived situation as being in a country where citizens with connections can do as they please), my reaction was to fight back - like most people, put me in a corner and I don't give in. BUT, when I saw that my wife was under stress and feared the consequences (primarily for me as a foreigner) then I backed off and just moved out pronto. I found a better life elsewhere and had removed stress (and possible danger) from the one I love.

    It is up to you how you proceed, but look around you first at what you have (and I don't mean material things).
     
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    Notmyrealname, Jun 7, 2019
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  8. furriner

    furriner DI Forum Adept Restricted Account

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    My moderation of these events as spouse of the owner has focused events along a legal path and thus has protected the scammer from a very untimely and painful demise at the hands of a very angry Filipina (i.e. my wife). LOL.
     
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    furriner, Jun 7, 2019
    #48
  9. Rye83

    Rye83 with pastrami Admin Secured Account Highly Rated Poster SC Connoisseur Veteran Army

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    I agree and I think you are alright since they have decided to exhaust all legal options. Any attempt on your life would immediately point a finger at them and their family. While it is not unheard of for people to resort to violence to resolve issues like this I believe that, statistically, it is not common for conflicts to be resolved in such a manner.

    Yes assassinations happen, but given the population of 100M+, the number of conflicts that must surely develop between those 100M+ people, the small number of murders and the large number of court cases involving land disputes it appears that most Filipino are unwilling to resort to murder as a resolution to these types of disputes. I think as long as you, a foreigner, appears to remain in the background and allow your wife to take the lead in any disagreements then you have little to worry about. However, you should keep an eye out for odd strangers hanging around watching your movement/routine. That could be a sign of something coming your way.
     
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    Rye83, Jun 7, 2019
    #49
  10. furriner

    furriner DI Forum Adept Restricted Account

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    Yes, that’s the way it works. If you come here alone with no family support and don’t understand the culture, that is one thing. Here you should always consider balance of family and community power, people who will naturally look out for you as you look out for them, knowing that “most” people who would want to have a person killed do not want to kick the bucket themselves. So you have nephews and brother in laws and people in the community. If you get involved in drugs or deal with drug addicts or love triangles etc.. your balance of power is lacking. The Philippines is actually quite civilized with its social checks and balances. But yes, be careful whether you live in downtown Miami or Dumaguete Phils.


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    furriner, Jun 7, 2019
    #50
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