5. Family Home

M. The Family; Family Home (Family Code, arts. 149-162)

The Family; Family Home (Family Code, arts. 149-162)

THE FAMILY

Chapter 1. The Family as an Institution

Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a)

Art. 150. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among brothers and sisters, whether of the full or halfblood. (217a)

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed.

These rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)

Chapter 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a)

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)

Art. 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)

General Principles

It is the dwelling house where the husband and wife and their family reside, and the land on which it is situated. It is constituted jointly by the husband and the wife or by an unmarried head of a family. (FC, Art. 152)

Constitution of Family Home (FH)

The FH is deemed constituted on a house and lot from the time it is occupied as a family residence. (FC Art. 153)

Guidelines in the constitution of the Family Home

• FH is deemed constituted from the time of actual occupation as a family residence;
• Only 1 FH may be constituted;
• Must be owned by the person constituting it;
• Must be permanent;
• Same rule applies to both valid and voidable marriages and even to common law spouses; (FC, Arts. 147 and 148)
• It continues despite death of one, either spouses, or an unmarried head of the family for 10 years or as long as there is a minor beneficiary. (FC, Art 159)

The heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH. (FC, Art 159)

The FH must be part of the properties of the absolute community or the conjugal partnership or the exclusive properties of either spouse, with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property. (FC, Art 156)

NOTE: Property that is subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a FH.

Requisites to be considered as beneficiary (FC, Art 156)

Requisites to be considered as beneficiary (FC, Art. 154)

• They must be among the relationships enumerated in Art. 154 of the Family Code;
• They live in the FH; and
• They are dependent for legal support upon the head of the family.

Q: On March 30, 2000, Mariano died intestate and was survived by his wife, Leonora and children, Danilo and Carlito. One of the properties he left was a piece of land in Alabang where he built his residential house. After his burial, Leonora and Mariano’s children extra-judicially settled his estate. Thereafter, Leonora and Danilo advised Carlito of their intention to partition the property. Carlito opposed invoking Art. 159 of the Family Code. Carlito alleged that since his minor child Lucas still resides in the premises, the family home continues until the minor beneficiary becomes of age. Is the contention of Carlito tenable?

A: NO. To qualify as beneficiary of the FH, the person must be among those mentioned under Art. 154 of the Family Code, he/she must be actually living in the FH and must be dependent for legal support upon the head of the family. (Patricio v. Dario, G.R. No. 170829, November 20, 2006) While Lucas satisfies the first and second requisites, he cannot, however, directly claim legal support from his grandmother, Leonora because the person primarily obliged to give him support is his father Carlito. Thus, the partition may be successfully claimed by Leonora and Danilo.

Occupancy of the FH either by the owner thereof or by “any of its beneficiaries” must be actual. That which is “actual” is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive and constructive. Actual occupancy, however, need not be by the owner of the house. Rather, the property may be occupied by the “beneficiaries” enumerated by Art. 154 of the Family Code. (Manacop v. CA, G.R. No. 97898, August 11, 1997)

NOTE: This enumeration may include the inlaws where the FH is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers.

Effect of death of one or both spouses or of the unmarried head of the family upon the family home

The FH shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH. (FC, Art. 159)

Exemption of Family Home from execution, forced sale or attachment

GR: FH is exempt from execution, forced sale or attachment.

From the time of its constitution and so long as any of its beneficiaries resides therein, the FH continues to be such and is exempt from execution, forced sale or attachment. (FC, Art. 153)

However, the rule is not absolute. Art. 155 of the Family Code provides the circumstances wherein the FH will not be exempt from execution, forced sale or attachment, to wit:

• Debts due to laborers, mechanics, architects, builders, material men and others who rendered service or furnished materials for the construction of the building;
• Non-payment of Taxes;
• Debts incurred Prior to its constitution;
• Debts secured by Mortgages on the premises before or after such constitution.

NOTE: Exemption is limited to the value allowed in the Family Code.

Rule for the family home to be exempted from execution

• If the FH was constructed before the effectivity of the FC, then it must have been constituted either judicially or extrajudicially as provided under Arts. 225, 229- 231 and 233 of the NCC. Judicial constitution of the FH requires the filing of a verified petition before the courts and the registration of the court’s order with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Arts. 240 to 242 of the New Civil Code and involves the execution of a public instrument which must also be registered with the Registry of Property.
• For FH constructed after the effectivity of the FC, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein. Moreover, the FH should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must not exceed certain amounts depending upon the area where it is located. Further, under Art. 155(2) of the Family Code, the FH remains answerable for debts incurred prior to its constitution; such debts need not have been incurred after the effectivity of the Family Code.
• And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such property is a FH. This claim for exemption must be set up and proved. (Juanita Trinidad Ramos, et al. v. Danilo Pangilinan et al. G.R. No. 185920, July 20, 2010)

Exemption of Family Home must first be set up and proved

The FH’s exemption from execution must be set up and proved to the Sheriff before the sale of the property at public auction. It should be asserted that the property is a FH and that it is exempted from execution at the time it was levied or within a reasonable time thereafter. It is not sufficient that the person claiming exemption merely alleges that such property is a FH. Failure to do so will estop one from later claiming the said exemption. (Spouses Araceli Oliva-De Mesa and Ernesto de Mesa v. Spouses Claudio D. Acero Jr. and Ma.Rufina D. Acero, Sheriff Felixberto L. Samonte and Registrar Alfredo Santos, G.R. No. 185064, January 16, 2012)

Requisites for the creditor to avail of the right to execute (FC, Art 160)

• He must be a judgment creditor;
• His claim must not be among those excepted under Art. 155;
• He has reasonable grounds to believe that the FH is worth more than the maximum amount fixed in Art. 157.

Procedure in exercising the right to execute

• Creditor must file a motion in the court proceeding where he obtained a favorable judgment for a writ of execution against the FH;
• There will be a hearing on the motion where the creditor must prove that the actual value of the FH exceeds the maximum amount fixed by the Family Code, either at the time of its constitution or as a result of improvements introduced after its constitution;
• If the creditor proves that the actual value exceeds the maximum amount, the court will order its sale in execution;
• If the FH is sold for more than the value allowed, the proceeds shall be applied as follows:
• First, to the amount mentioned in Art. 157 of the Family Code;
• Then, to the liabilities under the judgment and the costs of execution.

The excess, if any, shall be delivered to the judgment debtor. (FC, Art. 160)

NOTE: The actual value of the FH shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas, and P200,000 in rural areas, or such amounts as may hereafter be fixed by law. (FC, Art. 157)

Q: A complaint for damages was filed against Hinahon in 1986 when she incurred liabilities as early as 1977, which action prospered in 1989. The house and lot that she owned was levied upon and sold at auction. She assails the levy and sale on the ground that it was her family home and therefore exempt from execution. Decide.

A: IT IS NOT EXEMPT. Under Art. 155 of the Family Code, the FH shall be exempt from execution, forced sale, or attachment except for, among other things, debts incurred prior to the constitution of the FH. The house and lot was not constituted as a FH, whether judicially or extrajudicially, at the time that the debtor incurred her debts. Under prevailing jurisprudence, it is deemed constituted as such by operation of law only upon the effectivity of the Family Code on August 3, 1988, thus, the debts were incurred before the constitution of the FH. (GomezSalcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005) Verify the case name for G.R. No. 132537, October 14, 2005; the decision is identified as Gomez v. Roel.

Here, the complaint against Hinahon was instituted on June 17, 1986, to seek redress for damages suffered by them due to acts and omissions committed by her as early as 1977. This means that Hinahon’s liability arose long before the levied property was constituted as FH by operation of law in August 1988. It is thus clear that the liability incurred by Hinahon falls squarely under one of the instances when a FH may be the subject of execution, forced sale, or attachment to answer for debts incurred prior to the constitution of the FH. (Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005) Verify the case name for G.R. No. 132537, October 14, 2005; the decision is identified as Gomez v. Roel.

Q: Has the residential house and lot of Cesario Montana which he and his family built in 1960 but which was not constituted as a family home, whether judicially or extrajudicially, under the NCC been constituted as a family home by operation of law under Art. 153 of the FC, and therefore, exempt from execution from a money judgment where the debt or liability was incurred before the effectivity of the FC?

A: NO. Under Art. 162 of the Family Code, it is provided that “the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable.” It does not mean that Arts. 152 and 153 of the Family Code have a retroactive effect such that all existing family residences are deemed to have been constituted as a FH at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations before the effectivity of the Family Code. Art. 162 simply means that all existing family residences at the time of the effectivity of the Family Code are considered FH and are prospectively entitled to the benefits accorded to a family home under the Family Code. (Manacop v. CA, 277 SCRA 64, August 11, 1997)

NOTE: The Family Code does not have a retroactive effect. Thus, prior to August 3, 1988, the procedure mandated by the Civil Code had to be followed for a Family Home to be constituted as such. There being no proof that the subject property was judicially or extrajudicially constituted as a family home, it follows that petitioner cannot avail of the law’s protective mantle. (Modequillo v. Breva, G.R. No. 86355, May 31, 1990) Verify the case name for G.R. No. 86355, May 31, 1990; the decision is identified as Modequillo v. Salinas.

Q: On March 17, 1997, Evangeline A. Abuda loaned P250,000.00 to Florante Vitug and his wife, Narcisa. As a security for the loan, Vitug mortgaged to Abuda his property in Tondo Foreshore. The property was then subject of a conditional Contract to Sell between the NHA and Abuda. Later, the parties executed a “restructured” mortgage contract on the property to secure P600,000.00 representing the original P250,000.00 loan, additional loans, and subsequent credit accommodations. By then, the property was covered by TCT No. 234246 under Vitug’s name. Unfortunately, spouses Vitug failed to pay their loans despite demands. Vitug claimed that the property was exempt from execution because it was constituted as a family home before its mortgage. Is Vitug’s contention proper?

A: NO. Even though Vitug’s property has been constituted as a family home, it is not exempt from execution. Article 155 of the Family Code explicitly provides that debts secured by mortgages are exempted from the rule against execution, forced sale, or attachment of family home. Since the property was voluntarily used by Vitug as a security for a loan he obtained from respondent, it may be subject to execution and attachment. (Vitug v. Abuda, G.R. No. 201264, January 11, 2016, as penned by J. Leonen)

Requisites in the sale, alienation, donation, assignment or encumbrance of the FH

The following must give their written consent:

• The person who constituted the FH;
• The spouse of the person who constituted the FH;
• Majority of the beneficiaries of legal age.

NOTE: In case of conflict, the court shall decide.

Limitations on Family Home

• Each family can have only one FH. After one FH has been constituted, no other FH can be established without first dissolving the existing one.
• FH can be constituted only on the dwelling place, and therefore in the locality where the family has its domicile.
• The value of the FH must not exceed the limit fixed by law.

Presumption of Abandonment

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three (3) months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (Pineda, 2008)

The presumption is rebuttable by the presentation of clear, strong and convincing evidence that the absent spouse did not intend to leave the present spouse and family.

Exceptions:

• Parent in the interest of his family to keep any manufacturing, agricultural or industrial enterprise intact may order the legitime of the other children be paid in cash. (Art. 1080)
• Express prohibition of the partition of the estate for a period not exceeding 20 years. (Art. 1083)
• The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same, unless the court finds compelling reasons therefor. (Family Code, Art. 159)
• Reserva Troncal (Art. 891)