Friday, June 24, 2016

How to Buy/Sell Fish Farm Property

How to Buy/Sell Fish Farm Property

Those who wish to engage in bangus farming can either buy or lease fish farm property.

At present, there are no major barriers to entry into the fish farm business in the Philippines, including Pangasinan, except for land ownership. Owning land (including fish ponds) is allowed if the buyer is a Filipino or former natural-born Filipino who is currently a citizen of another country (subject to the limitations prescribed by law).

Under present laws, a foreigner is not allowed to own land in the Philippines, whether residential, agricultural, or commercial, including fish ponds.

There are cases of some foreigners deciding to settle here and marry a local. If the spouse retains her/his Filipino citizenship, the couple can then lawfully buy a fish farm in the name of the Filipino spouse (foreigners are only allowed to buy condos but not land).

Usual ways to acquire property legally are: (a) through purchase or (b) through inheritance, both of which are the subjects of this recent blog post and the next one. I've gone through both cases and here's what I've experienced.

Buying/Selling Fish Farms

In general, the first mode of acquisition – purchase - is more straightforward. Buying a fish pond is similar to buying any other real estate property anywhere else in the Philippines.

For a fish pond, look for a property in a particular location, say Binmaley, Dagupan, or Lingayen in Pangasinan where the bulk of fish farms are located. Decide if you want to own Class A, Class B, or Class C. Fresh water or brackish water. Near the river or slightly inland.

Contact the seller, negotiate the price, do an ocular inspection, check for completeness and authenticity of documents, scan the surroundings, check the neighbors, check the source of salt water, check for accessibility of electricity and potable water supply.

Check the property boundaries and concrete monuments, etc (later ask a private surveyor to do a relocation survey prior to contract signing). Make sure the old caretaker will vacate the property, unless you decide to keep him. In other words, do the usual due diligence (operational, financial, and legal) steps to ensure that you’re not buying a lemon.

If everything is OK and you and the seller come to an agreement as to the price and manner of payment, then go to a lawyer for the documents and then pay the agreed price in exchange for the signed deed of absolute sale and other key documents (title, tax declaration, survey plan, copy of latest real estate tax receipts, etc).

Inherited Fish Farms/Real Property

In our town in Binmaley, Pangasinan it’s common to find property (vacant lot, house and lot, agricultural land, or fish ponds) still in the name of parent owners or grandparent-owners (already deceased). The grandparents or parents who were the original owners may have failed to legally transfer their properties to the heirs and may have died intestate (without leaving a will). Some heirs may have already died too and are survived by their children.

As a result, the property is left among the surviving children and the heirs of the deceased children.

But when heirs are not aware of their legal rights, and ownership not clearly defined, this can be a source of problems among various heirs and their children. Problems are magnified if a particular heir or some heirs decide to impose his/their will and take over the property - disregarding the legal rights of other compulsory heirs.

So how should inherited properties be handled? What do you and your siblings do when your parents own a fish farm and both of them have died without transferring their property to the intended heirs.

The above is the subject of my next blog post “How to Transfer Ownership of an Inherited Fish Farm Property to the Heir(s)”. Click this for the detailed steps.


The detailed procedures for Buying/Selling Fish Farm Property are as follows:

1. Do preliminary steps and due diligence procedures to ensure that the fish pond you want to purchase is in accordance with your budget and plan, and meets all the operational and technical requirements of a good bangus farm.

2. Meet with the seller and ask all the relevant questions. It’s best if you as buyer deal directly with the seller (i.e, on a direct buyer or direct seller basis), and not through an agent or a go-between.

Ask seller for clarifications, such as:

a. If property is titled or if not, if covered by a Tax Declaration (TD). To make sure the TD is authentic, get a certified true copy of the TD from the municipal assessor. Focus on the name of owner, area covered, the lot number, and adjacent owners. If covered only by TD, inquire into how the property was acquired (perhaps through a previous sale or inherited). Ask for copy of relevant documents. Check details with the municipal assessor to make sure the property being sold by the seller is the same one in the TD and survey plan, if any.

b. If the annual real estate taxes are being paid and who pays them; ask for copy of tax receipts for at least last two years.

c. If property is in the name of the seller you are dealing with.

d. Confirm the identity of the seller. Ask for government-issued identification such as driver’s license, passport, Philhealth, SSS, Voter’s ID, etc.

e. If title is clean, i.e. no encumbrances (such as a mortgage) as annotated at the back of the title.

f. If the title held by the owner (owner’s copy) is the same one kept by the Register of Deeds (RD copy). Request for a certified true copy of the title from the Register of Deeds (all pages).

g. If owner is abroad and you’re dealing with his representative, ask if the latter has a special power of attorney (SPA) to legally represent the owner. If possible,communicate with the owner through email or Viber so that the owner can confirm the SPA.

Normally it’s best to deal with the seller directly. But if you personally know his representative (say he’s a resident in your village) and you know he’s acting for the seller (because he’s a trusted relative or caretaker), ask him for an SPA so he can formally deal with you as an attorney in-fact for the seller.

Never deal with a “representative” without an SPA. An SPA from abroad (such as US or Canada) is notarized at the Philippine consular office and has a “red ribbon”. This means the SPA has undergone either consular notarization (person appeared personally at the consulate) or consular authentication (notarized by a local county clerk and submitted to the consular office for authentication).

h. If seller is married and he will sign the contract as seller with the written consent of his spouse. It’s possible spousal or marital consent will not be given or is faked (you may have future problems later).

i. If the property being purchased/sold is the subject of a pending case before the courts. Obtain a certification from the Municipal Trial Court and Regional Trial Court concerned where the property is located.

3. Negotiate the final price. This is usually the selling price per hectare or per square meter.

4. Agree on the manner of payment.

Normally the seller would prefer full payment in cash or manager’s check. Sometimes, the seller would agree on a down payment with the balance payable every quarter over a one-year period, or some other arrangements.

5. Agree on who will pay the various taxes and fees.

The usual practice is for the seller to assume payment of the 6% capital gains tax to the Bureau of Internal Revenue (BIR). The buyer in turn shoulders payment of the 1.5% documentary stamp tax to the BIR, 0.5% or 0.75% transfer tax to the Provincial/City Treasurer (depends on whether province or city), and 0.25% registration fee to the Register of Deeds. Taxes to BIR are computed based on actual selling price or zonal value, whichever is higher.

However, depending on the negotiations and if the buyer agrees, the seller may demand a certain compensation for the property without any deductions (usually referred by locals as “malinis” in Tagalog (clean)). That is, the buyer will pay for all taxes and fees.

This is usually the case when the owner is selling at a price below market, or on a rush basis, and the buyer feels he has gotten away with a good deal even with all the add-ons (taxes and fees).

A word of caution regarding taxes. Both seller and buyer must be aware of the zonal valuation presently assigned on fishponds in the Philippines. For one reason or another, Philippine tax authorities, in their latest release of zonal values (as of 2017), have assigned an unusually high zonal value on fishponds, as against other property categories. In other words, the zonal value per square meter of fishponds in Pangasinan is much higher than the prevailing market selling price. 

For example, in Binmaley the zonal value assigned is P173/sq.m for Canaoalan and P155/sq.m for Caloocan Norte for non Class A fishponds in the interior areas. Current selling price for same is about P90,100, or 105.

This results in a dilemma for the seller. Should he sell at a price higher than zonal value to cover taxes and find out later that he can hardly find a buyer. Or should he price it much lower and negotiate for the buyer to shoulder all expenses, including taxes. "Why should I sell at P90 to 100 when I'll be taxed at P173/sq.m." is a question that nags a fishpond property owner.

6. Agree on who will shoulder the cost of a relocation survey.

Normally, during ocular inspection the seller usually accompanies the buyer in touring the property, pointing out the various boundaries and even concrete monuments, if they are still there.

However, the buyer may decide to hire his own private surveyor to do a relocation survey and establish the boundaries of the property. The bearings are indicated in the technical description stated in the title. Sometimes, the property already has an old survey plan where the boundaries, bearings, and distances (in meters) from point to point are listed under the technical description.

During the survey, part of the services of the surveyor is to reinstall the concrete monuments, in case some of these are missing. That way the new owner will be reassured of the correct boundaries of the fish farm property he is buying.

When conducting a relocation survey, it’s best to inform the owners or representatives of the adjoining properties, so that they will be present during the survey.

7. Check access to the property, both by pedestrians or vehicles if this is possible.

Sometimes the property is way off the road and owner would need to traverse an intervening property. Check if there is unhindered access to the farm property being bought.

Is there a need to formally secure right of way? Is there a possibility that the property may be blocked off?

Normally access of people is through the earth dikes connecting all the fish ponds in the vicinity. The main earth dikes are sometimes wide enough to allow entry of motorcycles and even tricycles. Check if the main access dikes are traversed by residents in the vicinity.

8. Check how pond water is accessed.

How does water enter the ponds to make it brackish? For Class A, this would be obvious as it should be beside the river.

For Class B, water will come from an adjacent Class A pond. Get assurance that entry of water will not be blocked under the new owners.

For Class C ponds, check the canal system through which existing river water is being channeled to the farm property. Usually the Class C ponds, together with other adjacent ponds, spend annually for canal digging expenses in order to let water in before the start of the rainy season. Get assurance from seller that the same system will be followed for the new owner.

9. Check the status of the present caretaker, if any. Get assurance that the property is vacated of any caretaker upon signing of the contract, unless the caretaker is endorsed by the seller and retained by the buyer.

There are cases when a demanding caretaker is able to impose his will on the owner and claims that he can’t be ejected even if the property is sold to a new owner.

Under Philippine laws, fish ponds are not considered agricultural lands (like a rice farm). As such the fish pond caretaker does not enjoy a security of tenure which a rice farm tenant enjoys. In the case of an agricultural lease, the tenant can’t be ejected even if the property is sold, unless he violates the terms of the lease agreement.

In the case of fish farm caretaker, the old owner goes, the tenure of the caretaker ends too.

It’s possible that the old caretaker may be endorsed by the old owner to the new owner especially if the caretaker has a good record. In which case, the old caretaker stays.

Else, the buyer must get assurance that the property will be vacated of the caretaker if the new owner decides to employ his own farm workers and caretaker.

Final note: it's possible that the old caretaker may have been allowed by the old owner to buy a small area of the lot where his hut stands or a small area at the corner. Possible if the old caretaker had a good record. Thus, he will remain within his small parcel of lot regardless of who the new fish pond owner is.

10. Check if the total selling price for the lot includes add-ons, say, existing farm hut, water supply, electricity supply including service line posts and wires, hand water pump, etc.

The old owner may decide to sell everything on the property, including farm structures (such as bamboo farm hut), metered water facilities, electricity-related assets (wires, posts), hand water pump that he may decide to leave behind. Negotiate for the valuation of these assets and agree on the specific value of the add-ons.

11. If all the above items have been resolved by both parties and no pending items remain, and both buyer and seller agree on all terms and conditions, hire a lawyer to draft the sale documents.

As mentioned, this will either be the Contract To Sell (if payment is not in full, say, down payment only with balance payable in a year) or a Deed of Absolute Sale (DAS) (if payment is in full in the form of cash or manager’s/cashier’s check). 

Under a sale on installment, where the transaction is covered by a Contract to Sell, a DAS will still be prepared but only after full payment has been completed by the buyer.

12. Before accepting the manager’s check or cashier’s check, validate the check with the issuing bank for authenticity.

13. Prepare an Acknowledgment Receipt (AR) and have it ready for the contract signing.

Note that the Bureau of Internal Revenue (BIR) requires presentation of the AR signed and dated by the seller as evidence that he has in fact received the contract price stated in the DAS.

14. When the DAS is ready for signing, choose a safe and secure venue where exchange of payment and signing of DAS can take place.

Normally, this is either inside a bank or in a notary public’s office. Most buyers and sellers choose to close the deal in a bank. Reasons are:

· bank premises are generally safe and secure

· only the signing parties are present perhaps accompanied by spouses and/or designated witnesses (more discreet)

· counting of money, in case of cash payment, can be done with the help of the bank teller/counting machines. That way, both the buyer and seller can rely on the teller’s cash count.

· If bank chosen is the seller’s bank, seller can immediately deposit the cash received from the buyer in his bank account. This immediately puts the cash under bank custody. This is also a security measure for the seller since he no longer has to carry large amounts of cash in his possession.

· If the bank chosen is the buyer’s, he can withdraw the required cash from the bank. No need to carry cash in his possession during contract signing.

· If the bank chosen is both the buyer’s and seller's, then payment will just be a bank transfer from one account to another Only a withdrawal slip and a corresponding bank deposit slip will be prepared. No need to handle or count cash during such transaction.

15. As buyer, pay the seller the agreed purchase price per contract. Upon receipt of cash, seller and buyer sign on the DAS.

As mentioned, payment may take the form of:

· Cash. Seller asks the bank teller to count the cash. When the amount counted is correct, then both buyer and seller signs the DAS. Upon signing, the seller either takes the cash or deposits it in his account.

· Manager’s check or cashier's check which has been previously validated by the buyer. Upon presentation of the check, both seller signs on the DAS (Note: marital consent of spouse can be obtained beforehand, in case spouse of seller will not be present during signing. For authentication, just submit a photocopy of her IDs, with original signature at the side).

16. After payment of the contract price and signing of DAS, ask the seller to sign the Acknowledgment Receipt (AR). Date to be indicated should be the same as notarization date (see below).

17. Have the signed DAS notarized by a licensed notary public.

Some notaries public won’t notarize the document unless all signing parties are present and sign the document in his presence. Others, especially those who you deal with regularly, may allow pre-signing as long as you show two government IDs with your signature on them. For authentication, he will request you to submit a photocopy of the said IDs with the original signature at the side. This is his assurance that the signatories in the notarized documents are indeed the parties named in the contract.

The lawyer-notary public seals and signs the document and stamps the date of notarization. He also indicates at the last page of the document pertinent details (document number, page number, book number, year series) as recorded in his notarial register.

When signing in the presence of a Notary Public, both seller and buyer are required to sign in the notarial record book.

Take note of the date of notarization which is very important (relevant when setting tax deadlines and avoiding penalties, see Step 22).

18. Go the Bureau of Internal Revenue (BIR) Revenue District where the property is located (in our case Alaminos, Pangasinan for properties sold in our area) and apply for payment of the capital gains tax (CGT). Do the following steps:

a. Fill out BIR Form 1706 in triplicate.

b. Make sure you have the following required documents with you. These basic requirements are what appears in the BIR website:

· One original and one photocopy of the DAS (get from the seller)

· Certified true copy of the TCT (request from the Register of Deeds)

· Certified true copy of the latest TD (apply at the Municipal Assessor)

· Certificate of No Improvement (apply at the Municipal Assessor)
c. Bring with you the original copy of AR and one photocopy. Although not mentioned in the BIR website, the AR is usually required during tax assessment to determine the date when the 30 days period required to pay the capital gains tax will start.

d. Also request a vicinity map from the Municipal Assessor and have it ready for submission to the BIR, together with the required documents.

The BIR usually conducts an ocular inspection to check the classification of the property (i.e., whether residential or commercial, fishponds, agricultural land, etc.) and its exact location. This is done to make sure that the specific zonal value for tax computation during desk assessment by the BIR assessor is correct).

e. Be ready to submit valid government issued IDs for the buyer and seller and also the one paying the capital gains tax. Prepare a photocopy of each and ask the buyer and seller to sign at the side of the ID photocopy.

f. Have your Tax Identification Number (TIN) ready (both for the seller and buyer).

19. Apply for payment of the Documentary Stamp Tax (DST) at the same BIR Office. Fill out BIR Form 2000-OT in triplicate.

Note that the DST is 1.5% of the selling price or zonal value which ever is higher.

Important note: the DST must be paid within 5 days after the close of the month. Normally you should pay DST together with the CGT at the BIR’s Authorized Agent Bank (AAB) to save time and effort and expenses.

20. When all the required documents have been submitted and the required CGT and DST computed, go to the AAB, usually near the BIR Revenue District Office to file the CGT Return (BIR Form 1706) in triplicate. Fill out the bank payment form. Pay the amount computed by the BIR. Get the Receipt issued by the AAB (this is the Payment Form that bears the bank machine validation).

21. Note that the CGT tax rate of 6% of the selling price or zonal value of the property which ever is higher.

22. Remember to pay within the 30 days deadline set for the payment of the CGT from DAS notarization date and AR date. (Last time I remember, the BIR assessor said he is basing it on the AR date).

Important reminder: Because you’ll be paying the CGT to the BIR and the DST at the same time during the same trip, make sure that you’re aware of the deadlines of both CGT (within 30 days) and DST (5 days after the close of the month).

Based on the above deadlines, it’s best if you can date your DAS and AR during the first week of the month. You can pay during the second week and you'll have enough time to make sure both your CGT and DST are paid way before deadline to avoid hefty penalties.

23. In case of failure to meet the 30 days deadline, pay the following:

· Surcharge – 25% for late payment

· Interest – 20% per annum

· Compromise penalty

24. After paying for the CGT and DST, return to the BIR Revenue District Office and show the bank receipts for the CGT and DST.

The BIR will later inform the taxpayer of the result of the ocular inspection and if the taxes computed and paid are already sufficient. The buyer will be asked to go back to the BIR office to get the Claim Slip. This will show the date when he needs to come back to claim the BIR Certificate Authorizing Registration (CAR).

25. Upon claiming of the CAR from the BIR, go to the Provincial Treasurer and apply for the payment of the Transfer Tax. Submit the required documents.

The transfer tax rate is ½ of 1.0% for provinces and ¾ of 1.0% for cities, in accordance with the Local Government Code.

Important reminder: The Provincial Treasurer will not accept any application for transfer tax payment without the CAR issued by the BIR. It will be a waste of time to go to the Treasurer’s office if the BIR hasn’t issued the CAR yet.

26. After paying the transfer tax at the Provincial Treasurer and receiving the transfer tax receipt, go to the Register of Deeds (RD) (in our case in Lingayen City) and apply for the transfer of title to the new owner.

At Lingayen City, the RD Office is just one or two blocks away from the Provincial Treasurer.

The buyer usually submits the CAR issued by the BIR, a copy of the DAS, copies of CGT and DST receipts, transfer tax receipt, and other documents that the RD Office may require.

Registration fee is usually ¼ of 1.0%.

The RD Office usually gives the applicant a claim slip showing the estimated completion date for the new title. You may have to make a few follow-ups at the RD office. The clerk on duty checks the RD online system to check the latest status of the processing of new title. She will usually give a new claim date after your follow up.

27. Once the new title is claimed, apply for a new TD in the new owner’s name at the municipal assessor’s office.

Usually the pertinent documents required are: copy of the new title, copy of BIR CAR, copy of tax receipts showing payment of required taxes, and other documents that the assessor may require.

In our case in Binmaley, after the new TD is typed and signed by the municipal assessor, the applicant is requested to take the TD to the Provincial Assessor in Lingayen City (beside the Provincial Treasurer Office in the same building) for approval. A copy of the new signed TD will be given to the new owner.

For a complete list of Fish Pond Buddy blog posts on fish farm-related topics, please click the Index page.

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