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Legal-Frequently Asked Questions
and Answers:
Q1. What is ERCOF and what does it do?
A. ERCOF stands for ECONOMIC
RESOURCE CENTER FOR OVERSEAS FILIPINOS, and as its name suggests, it is an organization
that offers programs and services designed to help overseas Filipinos in properly
managing their economic resources.
Q2. What are
Economic Resources and how does ERCOF help in their proper management?
A. Economic Resources include
income earned abroad by overseas Filipinos, as well as other assets or possible
sources of income or livelihood, such as acquired skills or technology which
can be transferred or could be of benefit to the Philippines or that may be
marketed or promoted in the international markets. ERCOF assists in their proper
management by providing overseas Filipinos obtain important business, legal
and practical information as well as linkages to various institutions, which
they may use in making informed and responsible decisions about these resources.
Q3. Where does
ERCOF obtain all this information?
A. ERCOF has compiled and
continues to gather a database of business, economic, legal and practical information
that are focused on topics and matters frequently encountered and asked by overseas
Filipinos. The database includes programs and services for overseas Filipinos
that are offered by government and private institutions but which are not normally
known and therefore seldom utilised by overseas Filipinos. ERCOF has links with
various Philippine based groups or professional who provide specialised information
in their respective fields.
Q4. What are
these specialized fields where Overseas Filipinos may obtain information?
A. Estate planning and
tax matters, family relations such as annullment, adoption, inheritance, purchase
of land, other real property and management of such property through trust arrangements,
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Civil and criminal matters,
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Formation and registration of
corporations, single proprietorships
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Investments, especially investments
in rural areas;
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Banking and transacting with
Philippine banks;
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Citizenship, visas and immigration,
particularly for those returning to the Philipines,
Q5. Where may
an overseas Filipino obtain this information?
A. ERCOF conducts business
orientation forums and legal clinics in various overseas Filipino communities
in Europe, on a regular basis or upon request. ERCOF's website also contains
various sections that provide basic information on different areas of interest
to Overseas Filipinos, where ideas or information are exchanged, or specific
questions answered. (A discussion board is being planned for the future.) In
due time, a newsletter and a comprehensive business and legal guide for overseas
Filipinos will complement the onsite and online information service.
Q6. Are ERCOF's
services limited only to overseas Filipino citizens? What about former native
born Filipinos or children of native born Filipinos, who are now naturalized
or are considered nationals of their present country of residence?
A. ERCOF's services are
actually available to anyone, whether Filipino or non Filipino, who may wish
to obtain business, legal or practical information pertaining to the Philippines.
However, by their design, the programs and services of ERCOF will be of primary
importance and relevance to overseas Filipino citizens, as well as those who
may have been naturalized citizens of their present countries of residence.
Q7. Will the
information that may be obtained from ERCOF be helpful to an overseas Filipino
who does not have any intention of going into business or investing in the Philippines?
A. Yes, because ERCOF also
features information which although not related to business or economic matters,
may help one in avoiding or preventing a future or threatened legal or practical
problem that could be a potential drain to finances. For instance, there is
practical advice and information regarding the purchase of property, inheritance
and tax matters, adoption, annulments of marriage, financial support, basic
and practical matters relating to former Filipinos who are returning to or retiring
in the Philippines such as on dual citizenship , visas and immigration matters,
ownership of property, practice of profession, and many other matters which
continue to be the frequent topics of inquiry by overseas Filipinos.
Q8. Why do overseas
Filipinos need business information or advice?
A. There are many overseas
Filipinos, particularly the contract or temporary workers, who send money to
their relatives that is intended to start a small business. Some studies have
indicated that many of these small businesses fail due to the lack of business
knowledge or discipline. There is also a tendency to spend on luxuries and other
similar items.
For Filipino workers who have stayed or worked overseas for many years, it is
important to obtain prior information in order to update themselves with current
regulations and conditions . It is also important to look forward and save in
anticipation of investing in a source of livelihood upon return.
Q9. What business
information does ERCOF provide?
A. It provides the basic
and practical information that one needs to know in choosing a particular business,
the various permits and legal and government procedures in registering the business
or guidance in claiming incentives or exemptions under existing laws, and in
some cases, provide information on specific businesses or business conditions
in a particular locality or province, as its data base or consultants may provide.
Beyond this, ERCOF may also provide a linkage or referral to any of its Philippine
based partners, in case more extensive advice or consultation is requested for
a specific business or legal problem.
CITIZENSHIP
Q1. What is
Citizenship?
A. Citizenship is a term
used to denote full possession of civil and political rights by a person or
by the citizen of a particular country, who owes permanent allegiance to, and
is entitled to demand protection from that country.
Q2. What is
the difference between Citizenship and Nationality, or between a citizen and
a national?
A. Citizenship is a term
used in Municipal Law (thelaw of a particular country) to denote the full possession
of civil and political rights, while nationality is a more comprehensive term
used in International law which signifies the status of being the subject of
a state, regardless of whether or not that person is in possession of civil
and political rights.
Q3 What is dual
or multiple citizenship?
A. Dual or multiple citizenship
is a situation where a person is simultaneously considered a citizen of two
or more countries or states, by reason of the difference in citizenship laws
of these countries.
Q4. What are
the common instances of dual citizenship that may frequently apply to Filipino
citizens?
A. The most common example
is where a child of parents who are citizens of a country(like the Philippines)
which follows the citizenship rule of Jus Sanguinis(blood principle) is born
in a country(like the US) which follows the principle of Jus Soli(soil principle).
The child is a Filipino and at the same time a US citizen.
Q5. Does a Filipino
woman who marries a non Filipino lose her Philippine citizenship upon the marriage?
A. It depends.
The loss or retention of Philippine citizenship by a Filipina marrying a non
Filipino depends on the laws of the Philippines and that of the husband's country.
Before the 1973 Constitution,
the Filipino woman lost her Philippine citizenship if by virtue of the laws
of the husband's country, she acquires his nationality.
Under the 1973 Constitution, the
Filipina retains her citizenship , unless there is an act or omission on her
part which may be considered as one of the ways of losing Philippine citizenship
under Philippine law (renunciation, naturalization, taking an oath of allegiance
and joining the armed forces of the other country) This rule which has also
been retained in the 1987 Constitution, is now the prevailing rule.
Q6. Does this
rule apply to a Filipino male who marries a non Filipino?
A. Under the 1935 and 1973
constitutions, it only applied to the Filipino woman. Under the 1987 Constitution,
it made the rule applicable to male or female Filipinos marrying non-Filipinos.
Q7. Does a non
Filipino woman who marries a Filipino man acquire Philippine citizenship?
A. Yes, but it is not automatic,
in the sense that non Filipino wife still has to prove in proceedings usually
conducted by Philippine Immigration authorities that she has none of the disqualifications
in becoming a Philippine citizen.
Q8. Is the rule
the same in the case of a non Filipino marrying a Filipina?
A. No, Philippine citizenship
is not acquired by the non Filipino husband. However, he is eligible to apply
for permanent residence in the Philippines upon the petition of the Filipina
wife.
Q9. Are there any potential problem areas for Filipinos in
the possession of dual nationality?
A. Yes. The most common
complication has to do with the immigration regulations and a perception that
divulging a foreign nationality may affect their privileges as Filipino citizens.
Others complex situations are in the areas of inheritance, property and taxation.
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Q10. Is dual
nationality allowed under Philippine law?
A. Although the Philippine
Constitution provides that dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law, Philippine law has no control over
laws of other countries, and cannot rule that certain persons are citizens of
other countries. Hence dual citizenship may not be avoided.
Q11. Has there
been any law passed in the Philippine Congress to deal with dual citizens?
A. No but there have been
bills filed in both the Philippine Congress and the Senate which propose various
measures but which take opposing views in dealing with the issue of dual nationality.
One of these bills make it obligatory for a dual citizen to report such fact
to immigration authorities within one year from the passage of the bill, and
for persons under 18 to make a choice within 2 years. On the other hand, other
bills actually advocate the possession of dual nationality, and even proposes
that former Filipinos who repatriate or apply to regain Filipino citizenship
be allowed to retain their foreign citizenship.
Q12. While
there is yet no law on dual nationality, how does the Philippine Immigration
deal with minors or persons under 18, who are brought to the Philippines by
their parents in order to study or reside, or what kind of status are they given?
A. Fortunately, Philippine
Immigration authorities allow such minors of dual nationality, to file what
is known as a Petition for Recognition. It is in reality, an administrative
recognition of the dual nationality of the minor. The effect is that while in
the Philippines, the minor is allowed the privileges of a Filipino citizen such
as residence and enrollment in Philippine schools and is even allowed to travel
using the foreign passport. This procedure allows the dual citizen-minor to
reside and study in the Phlippines without having to apply for resident or student
visas, thus sparing them from the high costs and bureaucratic procedures associated
with such visas.
(More information about this and related matters would be in the section of
immigration.)
Q13. What are
the ways under Philippine law of losing Philippine citizenship?
A.
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By naturalization in a foreign
country
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through express renunciation
of Philippine citizenship
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By taking an oath of allegiance
to support the constitution of a foreign country
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By enlisting and serving in
the armed forces of a foreign country.
Q14. How does
a former Filipino regain the former Philippine citizenship?
A. Either by naturalization
in courts, or through a petition for Repatriation, lodged with the office of
the Solicitor General in the Philippines or with the nearest Philippine consulate.
Naturalization is the more tedious procedure and takes years to complete, while
repatriation is simpler and may be completed within months if requirements are
complete.
PROPERTY
Q1. May a former Filipino own private land in the Philippines?
A. Yes, the 1987 Constitution allows former Filipinos to acquire private
lands in the following instances and under certain conditions:
(1) By hereditary succession;
(2) Under Batas Pambansa (BP) No. 185, up to a maximum of 1000 sq. meters
of urban land, and a maximum of one(1) hectare of rural land, to be used exclusively
as residence;
(3) Under Republic Acts 7042 and 8179, up to a maximum of 5,000 sq. meters
for urban land, and 3 hectares of rural land, to be primarily, directly, and
actually used by the owner in business or commercial activities in agriculture,
industry and services.
Q2. What are
the other conditions for acquiring land under these laws?
A. (1) Under BP 180, -a person who already owns urban or rural lands
for residential purposes may acquire additional areas for residence, provided
the additional areas when added to present landholdings, do not exceed the maximum;
-moreover, owners of urban land shall be disqualified from acquiring rural land
and vice versa.
(2) Under RA 7042 and 8179, the rule is the same, except that
if the person has already disposed of his/her urban land, he or she may still
acquire rural land and vice versa, provided this will be used in business.
Q3. May a person who has acquired residential land under BP
185 still acquire lands to be used for business purposes under RA 7042 and RA
8179?
A. Yes.
Q4. May aliens or former Filipinos own condominium units in
the Philippines?
A. Yes, subject to certain conditions:
(1) If the common areas in the
condominium project are owned by owners of separate units as co- owners, no
units may be transferred or conveyed except to Filipino citizens or to former
Filipinos by hereditary succession, or to corporations at least 60% of capital
stock of which belongs to Filipino citizens.
(2) Where the common areas are held by a corporation, no transfer of a unit
shall be valid if the transfer will cause the alien interest in such corporation
to exceed legal limits.
Q5. What is
the difference between the terms "Estate" and "Real Estate"?
A. Estate is the totality of assets owned by a person,Which includes
real estate and personal property. Real Estate refers to land and all permanent
Improvements found therein.
Q6. May a husband and wife sell property to each other?
A. No, except, when a separation of property was agreed upon in the marriage
settlements, or when they have been judicially separated under Article 191 of
the New Civil Code of the Philippines.
Q7. May a property owned by a minor (under 18 yrs) be sold?
A. Yes, but not by the minor. The sale must be through a court appointed
legal guardian, and subject to the approval by the court.
Q8. What factors must a person generally consider prior to
buying property in the Philippines?
A. (1) The price must be within the realm of fair market value. Generally,
a ridiculously low price should be enough reason for one to be very cautious.
(2) The original title must be inspected and should be free from
any condition or annotation, such as an existing mortgage or court case (lis
pendens) which may be a legal obstacle to its use or disposition. It is always
recommended to confirm the authenticity of the title with the Register of Deeds.
(3) The person selling should either be the owner or a representative
with a valid Special Power of Attorney.
(4) Obtain information if property or parts of it may be the
subject of expropriation by the government.
(5) Inspect the property to check if there are squatters or if
arrangements have been made for the moving out of tenants, if any, or in the
case of an enclosed property, if it has a legal right of way.
(6) Always check with authorities regarding zoning laws and ordinances.
There are lands covered by tourist zones, special economic zones, forest preserves,
and urban land reform, where land use may be limited by national or local law,
or allowed for specific purpose only.
(7) When buying agricultural land, check title, to verify if
the owner can already sell it under the agrarian reform law. Property owned
under Certificates of Land Transfer (CLT) or CLOA, may not be sold within a
certain period, or except with the approval of the Department of Agrarian Reform.
(8) When buying land or house and lot packages from a subdivision,
it is always wise to consult the Housing and Land Use Regulatory Board (HLURB)
to determine whether the agent or real estate company has a license to sell,
or if it has any derogatory records or pending cases, particularly non- completion
of facilities or non issuance of titles. (ERCOF may assist in doing this service)
(9) Find out if taxes and other assessments on the property have
previously been paid and are updated.
Q9. When must capital gains taxes and documentary stamp taxes
on property sold be paid? Other transfer taxes?
A. They should be paid no later than the 10th day of the Month following
the notarization of the deed of sale, To avoid penalties and charges. As to
the period of Payment for other transfer taxes, regulations differ Between local
government units.
Q10. What things must a buyer bear in mind regarding Special
Powers of Attorney (SPA) to sell property?
A. (1) The SPA must be notarized and in affidavit form.
(2) It should particularly and specifically describe not just
the real property but also the transaction being proposed.
(3) The SPA should be annotated in the title, preferably at or
around the time of the execution of the SPA. However, it is often the practice
that the SPA is not registered until after the transaction is executed- i.e.
both the SPA and the Deed of Sale are simultaneously registered.
(4) It is best that the SPA should be verified with the notarial
records and the copy actually filed with the Register of Deeds. Some sellers
have been known to show SPAs totally different and dissimilar from that on record
with the Register of Deeds.
(5) Some documents entitled SPA are actually employing terms
and provisions applicable to general powers of attorney, which means the attorney
in fact may not be authorized to sell the property.
Q11. What should the buyer do when the seller is not able
to show the owner's copy of the title?
A. This is an indication that the owner's copy might be with some other
party who has an earlier interest, possibly a mortgage, a sale, or some hold
on the property. If the seller declares that the owner's copy is lost, the buyer
should demand that the seller get a reconstituted title from the court. Ruling
case law is that a buyer's failure to ascertain the whereabouts of a missing
owner's copy, is gross and inexcusable negligence. The negligent buyer would
not be considered in good faith, and may consequently not be able to recover
what he/she might have already paid.
Q12. What if the seller shows a reconstituted title?
A. The reconstituted title must still be verified from court records.
Many titles have been "reconstituted" through non-existent or even simulated
court proceedings, and therefore are completely invalid and can never be the
source of enforceable rights.
Q13. If the title indicates that the seller is different
from the owner's name or there are co-owners or co- heirs?
A. One needs to demand from the seller an authentic SPA from the registered
owner, or in certain cases, from the co-owners or co-heirs. In the latter case,
it is safer to deal with all of them.
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Q14. What is the difference between "Option Money" and "Earnest
Money"?
A. Generally, 'Option money' may be forfeited because the money is paid
to acquire the 'exclusive right to negotiate' for a certain period of time,
while 'Earnest Money' is part of the price and should be returned if the transaction
does not materialize or there is recession.
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Q15. Is there title insurance in the Philippines?
A. None, unlike in some countries such as the United States, where sales
of real property must also be attended to by a lawyer. The present titling and
registration system in the Philippines is also still imperfect. These are only
a few of the good reasons why real estate buyers should take pains to verify
documents and claims being made on purchases of property.
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IMMIGRATION and ENTRY TO THE PHILIPPINES
Q1. What is the proper visa status of a former Filipino who
desires to visit or return to the Philippines?
A. Technically, a former Filipino is considered a foreigner for purposes
of entering the Philippines. However, he/she may enter the Philippines under
various visa or no visa entry options, and depending on the purpose of the visit,
that is, whether the trip will be on a temporary basis or for permanent stay.
Q2. What are the no visa options for a former Filipino who
is entering the Philippines ?
A. A former Filipino, who currently holds a nationality that is considered
by the Philippine government as not restricted (almost all Western countries)
may travel and be allowed to enter the Philippines without a visa-
(1) For a stay not exceeding 21 days, under Executive Order 408,
provided he or she presents to immigration authorities a valid passport and
an onward and return ticket.
(2) For a stay of one year, under the Balikbayan law (RA 6768).
Q3. What or who are Balikbayans?
A. Balikbayan refers to:
(1) Former Filipino citizens holding foreign passports, including
their spouses and children travelling with them.
(2) Filipinos who have been continuously out of the Philippines
for at least one year.
(3) Filipino overseas contract worker.
Q4. May the 21-day no visa entry be extended?
A. Yes, it may be extended initially for 38 days, upon application with
the Philippine Immigration Office for a visa waiver. Thereafter, this may be
extended further for varying periods, if the necessity of extension is proved
by the applicant.
Q5. May the one-year entry as Balikbayan be extended?
A. Yes, normally a 2-month extension is granted. Beyond this period,
it could be difficult to obtain further extensions unless these are in the nature
of emergencies or urgent necessities.
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Q6. What are visa options for a former Filipino wishing to
visit the Philippines on a temporary visit for business, pleasure or health?
A. The only visa option would be to apply for a visa with the Philippine
Consulate as a temporary visitor under Sec. 9A of the Philippine Immigration
Act, and may be admitted to the Philippines for 59 days, which may be extended
by Philippine Immigration authorities in the Philippines.
Q7. What visa options are there for a former Filipino who
wishes to enter the Philippines to work or to start a business?
A. There are several, depending on the purpose and Circumstances, among
them:
(1) As a former Filipino returning for permanent residence to
the Philippines under Sec. 13(e) of the Philippine Immigration Act.
(2) As a retiree under the Philippine Retirement Act, for those
who are over 50 years of age and able to make a fund placement in designated
banks in the amount of at least US$ 50,000.
(3) As a prearranged employee under Sec. 9G of the Philippine
Immigration Act, when one intends to engage in any lawful occupation, whether
for wages or salary, or other forms of compensation where a bona fide work relationship
exists, such as professors and teachers in schools, doctors and nurses for hospitals,
scientists, professionals and other workers, for banking, commercial, industrial
and other business enterprises.
(4) As a treaty trader under Sec. 9D of the Philippine Immigration
Act, if the applicant is a national of the United States, Germany or Japan,
who is entering the Philippines to carry on trading activities or to direct
an enterprise in which s/he or his/her employer has invested or is in the process
of investing.
(5) By applying for a Special Investor's Resident Visa by one
who is able to invest at least US$ 75,000.00 in an enterprise that is not restricted
by law.
(6) As staff of foreign firms doing business in export processing
zones, in offshore banking units, in area or regional headquarters of multinational
firms.
Q8. Where should one go to apply for these visas?
A. Generally, Philippine consulates in the foreign countries.
Q9. What kind of visas may missionaries apply for?
A. Missionaries usually apply for visas as Prearranged employees under Sec.
9G of the Immigration Act.
Q10. Is it possible for one who is already in the Philippines
as a visitor to convert his status to permanent or some other working status?
A. Yes, by filing a petition for a change in visa status with the main
office of the Commission on Immigration and Deportation in Manila.
Q11. If a former Filipino is granted any of these visa options,
does the visa cover members of the family?
A. It covers the spouse, and children who are under 21. However, visas
under Sec. 9A (tourists) are given Individually.
Q12. May former Filipinos practice their professions in the
Philippines?
A. Generally, only Filipino citizens may engage in the practice of professions.
However, there are certain laws, such as those regulating the practice of optometry
or electrical engineering, and others, which allow practice by foreign nationals
who may be employed by government or specialized firms for highly technical
projects, those who are internationally known, or on the basis of reciprocity.
Repatriation, or the process of regaining Philippine citizenship, could also
be another option to enable one to exercise a profession.
Q13. What would you advise former Filipinos who are planning
to return or retire in the Philippines after a long absence?
A. Overseas Filipinos who have been absent from the Philippines for long
periods of time, should visit the Philippines and stay for more than just a
month, preferably 6 months to a year. By doing so, Filipinos who have been used
to different ways and standards of living in other countries, would have more
opportunities in finding out if they could adjust or reintegrate to Philippine
ways and culture, or be able to financially and emotionally sustain a new life
in the Philippines.
This is true not only for themselves, but also for their spouses, and children.
The Balikbayan type of entry which gives former Filipinos and family members
the privilege to stay for one year without paying for any immigration fees,
is ideal for such a trial period.
Under certain conditions, Balikbayans may be given a special permit to work,
and their children may also be allowed permits to study in Philippine schools.
They may also use this time to explore business or job opportunities, and build
on a network of friends or contacts who may later be their business partners,
or form part of their support systems especially in difficult times when they
finally resettle and readjust to Philippine life.
Q14. How does one go about choosing the various visa options?
A. Each visa option has its advantages and advantages, in matters of
documentation, period of stay and even tax implications. For instance, a person
holding a permanent residence visa may reside and work in the Philippines permanently
without extending stay, whereas a Prearranged Employee or Treaty Trader is given
from only one or two years stay, which may or may not be extended. A permanent
resident may engage in any of the allowable forms of business or work for any
firm or company, while the other types limits work to only one firm at a time.
General Information about these visas should be available from Philippine consulates,
from some travel offices and agencies, and from Philippine immigration in Manila.
Should deeper or confidential inquiries be necessary, it is advisable to consult
a lawyer who is a specialist or experienced in immigration practice. Having
specialist knowledge in this field, ERCOF can give counseling and actual assistance
on these matters or may make referrals to lawyers who are accredited members
of the Immigration Lawyers Association of the Philippines (ILAP) or members
of its legal pool.
Copyright © 2004. Economic Resource Center
For Overseas Filipinos. All rights reserved.
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