THE FAMILY HOME
therefore in the locality where the family has its domicile
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.
CONCEPT OF THE FAMILY HOME
Family home is the dwelling place of a person and his family
It is a real right that is gratuitous, inalienable, and free from
attachment
In the CC
o It creates a real right and this needs to be registered
o When the family home is dissolved, it is not the
property itself that is divided but the real right that is
distinguished
In the FC
o A family home is deemed constituted on a house and
land from the time it is actually occupied as a family
residence
Occupation must be actual and not constructive
o For example, a wife or husband may not say that they
have occupied the family home when at the time it was
only his or her overseer, houseboy or maid lived who
lived in the said place
Family home cannot be constituted by the husband or wife
alone, however an unmarried family head may constitute it
alone.
LIMITATIONS ON FAMILY HOME
Each family can have only one family home. No other family
home can be established without first dissolving the existing
one
Family home can only be constituted on the dwelling place and
USE OF PROPERTY
There must be an actual occupancy with the intention of
dedicating the premises to such purpose
No valid family home can be constituted upon premises
primarily for business purposes
o It would be doing violence to law to regard it as a
family home
o But where a portion of a building is actually used as a
family residence, and not as merely incidental to a
business, it may be constituted as a family home
COMPULSORY RESIDENCE
The owner is not deprived of his rights to the family home
merely because a part of the building is used for supplementing
the family income, regardless of the size of such part
MEANING OF FAMILY HEAD
The provision does not explain the meaning of the family head;
however, Tolentino believes the meaning of the term is not
limited to what was mentioned in ART 154
Head of the family may establish a family home even if the
members of his household are not legally beneficiaries of such
family home
 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.
WHEN CONSTITUTED
Under the CC
o The family home may be constituted judicially or extra-
judicially.
o Constituted from the time the order of the court
approving the family home or the public instrument
creating it extra-judicially is recorded in the registry of
property
Under the FC
o Actual occupation of the house as a family residence
which creates the family home, without judicial
proceedings or public instrument
o Recording of property in the registry of property is done
only to give notice to 3rd persons of the family home
DURATION OF FAMILY HOME
Continues as long as the beneficiaries resides therein
It may be terminated or dissolved when it was validly alienated
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.
REQUIREMENTS TO BE A BENEFICIARY
Relationship enumerated in this article
Live in the family home
Depend for legal support upon the head of the family
RIGHT OF BENEFICIARIES
This article should be taken in relation to ART 195 and 196.
Thus, illegitimate brothers and sisters whose needs are due to
their fault or negligence should not be entitled to support.
Does not state the rights of the beneficiaries of the family
home.
The constitution of the family home does not transfer the
ownership of the property to the beneficiaries; however, they
shall the right to live therein and use the same.
 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,
PROPERTY FOR FAMILY HOME
materialmen and others who have rendered service or furnished
material for the construction of the building.
MONEY JUDGMENT
Judgment for the payment of money may be rendered after the
constitution of the family home, but the obligation may have been
contracted before such constitution
SERVICES AND MATERIALS
Par. 4 should not be limited to the rendered services or furnished
materials for the construction of the building used as family home for
such would be superfluous and it would just be clearly within Par. 2.
This should include repairs and improvements which may take place
after the creation of the family home.
CHANGE OF CURRENCY VALUE
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 latters 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.
Family home created partly on conjugal property and partly on the
paraphernal property of the wife is valid.
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.
In case of inflation, the more favorable value would be the former
basic value
 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 latters spouse, and a majority
of the beneficiaries of legal age. In case of conflict, the court shall
decide.
EFFECT OF ALIENATION OR ENCUMBERANCE
If family home is alienated, it ceases to be a family home.
If it is mortgaged, it does not cease to be a family home; but, if later
on, it was foreclosed and the property is sold in the foreclosure, it
will cease as a family home.
If its ownership is passed to a 3rd person, there is no reason for it to
be a family home.
o The purpose of a family home is to be exempt from
attachment or execution
ART 159
SALE ON EXECUTION
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.
DEATH OF PERSONS WHO CONSTITUTED FAMILY HOME
If there is no more beneficiary left at the time of death, the family
home will be dissolved or cease, for there is no more reason for its
existence
After these periods lapse, the heirs may now partition the property
If the heirs did not partition the property, they shall be considered as
owners of the property however, it shall cease to be a family home.
ART 160
When a creditor whose claims 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.
No creditor no included in the enumeration in ART 155 can levy
execution upon the property EXCEPT
o When actual value of the family home at the time of its
constitution exceeded the maximum amount provided by
ART 157
o When at the time of the levy on execution the actual of the
property exceeds the maximum provided in ART 157
because of the voluntary improvements by the beneficiaries
of the family home or owner of the property
FIRST CASE: actual value of the property at the time of levy is
immaterial
SECOND CASE: value of the improvements is not the determinative
factor. It is the total value of the property at the time of the
constitution and the improvements that will determine whether the
improved property is subject to the execution or not.
HEARING ON THE VALUE
Court cannot order sale on execution of a family home on the mere
allegation of the creditor, whose claim is not mentioned in ART 155
VALUE JUSTIFYING SALE
If the value of the family home exceeds the amount fixed by law, a
sale of the same may be ordered
DIVISIBILITY OF PROPERTY
It may not always be necessary to sell the building used as a
dwelling, if there is enough land which can be segregated from that
on which the building stands, whose value can cover the claim of the
judgment creditor
AMOUNT OF BID
High enough to give some amount to the judgment creditor
o Exceed amount of the family home exemption plus the total
amount of liens and encumbrances
APPLICATION OF PROCEEDS
It shall be distributed according the following order
o Creditor holding liens and encumbrances
o Beneficiaries (in the max amount)
o Creditor (satisfy judgment executed)
o Owner of the property
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.
ART 162
The provisions in this Chapter shall also govern existing family
residences insofar as said provisions are applicable.
CASE 1: MODEQUILLO v BREVA
FACTS
A judgment was rendered by the CA finding the petitioner and Benito
Malubay jointly and severally liable to compensate the Salinas spouses for
the death of their son, Audie Salinas, and to pay for Renato Culan-Culans
hospitalization fees. The RTC issued a writ of execution to satisfy the said
said judgment on the goods and chattels of the herein petitioners, Jose
Modequillo and Benito Malubay.
Sheriff levied a parcel of the residential lands of the petitioners.
Petitioners filed a motion to quash alleging that the residential land located at
Poblacion, Malalag is where the family home is built since 1969 and is thus
exempted from execution, forced sale, or attachment under ART 152 and 153
of FC except for liabilities mentioned in ART 155. The judgment debt sought
is not one of the liabilities mention in ART 155. As to the agricultural land
although it is declared in the name of defendant it is alleged to be still part of
the public land and the transfer in his favor by the original possessor and
applicant who was a member of a cultural minority was not approved by the
proper government agency.
TC denied the petition.
ISSUE
WON the property in dispute constitutes a family home. - NO
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1969 is not well-
taken. Under Article 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 Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences
are deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes
and are prospectively entitled to the benefits accorded to a family home
under the Family Code. Article 162 does not state that the provisions of
Chapter 2, Title V have a retroactive effect.
 WON the family home of petitioner is exempt from the execution of
the money judgment NO
The debt or liability which was the basis of the judgment arose or was
incurred at the time of the vehicular accident on March 16, 1976 and the
money judgment arising therefrom was rendered by the appellate court on
January 29, 1988. Both preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the exemptions from execution
provided in the Family Code.
As to the agricultural land subject of the execution, the trial court correctly
ruled that the levy to be made by the sheriff shall be on whatever rights the
petitioner may have on the land.
CASE 2: PATRICIO v DARIO III
FACTS:
Marcelino V. Dario died intestate. He was survived by his wife, petitioner
Perla G. Patricio and their two sons, Marcelino Marc Dario and private
respondent Marcelino G. Dario III. Among the properties he left was a parcel
of land with a residential house and a pre-school building.
Marcelino Marc and private respondent, extra-judicially settled the estate of
Marcelino V. Dario
Petitioner and Marcelino Marc formally advised private respondent of their
intention to partition the subject property and terminate the co-
ownership. Private respondent refused to partition the property hence
petitioner and Marcelino Marc instituted an action for partition before the
Regional Trial Court
The trial court ordered the partition of the subject property in the following
manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino
G. Dario III, 1/6. The trial court also ordered the sale of the property by
public auction wherein all parties concerned may put up their bids. In case of
failure, the subject property should be distributed accordingly in the
aforestated manner.
Private respondent filed a motion for reconsideration which was denied by
the trial court. Hence he appealed before the Court of Appeals, which denied
the same.
However, upon a motion for reconsideration filed by private respondent on,
the appellate court partially reconsidered the Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for partition filed
by petitioner and Marcelino Marc for lack of merit. It held that the family
home should continue despite the death of one or both spouses as long as
there is a minor beneficiary thereof. The heirs could not partition the property
unless the court found compelling reasons to rule otherwise. The appellate
court also held that the minor son of private respondent, who is a grandson of
spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of
the family home.
ISSUE
WON the family home cannot be partitioned on the grounds that a
minor-beneficiary is still residing therein NO
To be a beneficiary of the family home, three requisites must concur: (1) they
must be among the relationships enumerated in Art. 154 of the Family Code;
(2) they live in the family home; and (3) they are dependent for legal support
upon the head of the family.
As to the first requisite, the beneficiaries of the 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. The term descendants contemplates
all descendants of the person or persons who constituted the family home
without distinction; hence, it must necessarily include the grandchildren and
great grandchildren of the spouses who constitute a family home. Thus, private
respondents minor son, who is also the grandchild of deceased Marcelino V.
Dario satisfies the first requisite.
As to the second requisite, minor beneficiaries must be actually living in the
family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo
R. Dario IV, the son of private respondent and grandson of the decedent, has
been living in the family home since 1994, or within 10 years from the death
of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot
demand support from his paternal grandmother if he has parents who are
capable of supporting him. The liability for legal support falls primarily on
Marcelino Lorenzo R. Dario IVs parents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from his
grandmother, but from his father. Thus, despite residing in the family home
and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario
IV cannot be considered as beneficiary contemplated under Article 154
because he did not fulfill the third requisite of being dependent on his
grandmother for legal support.
There is no showing that private respondent is without means to support his
son; neither is there any evidence to prove that petitioner, as the paternal
grandmother, was willing to voluntarily provide for her grandsons legal
support. On the contrary, herein petitioner filed for the partition of the property
which shows an intention to dissolve the family home, since there is no more
reason for its existence after the 10-year period ended in 1997.
Since the parties were unable to agree on a partition, the court a quo should
have ordered a partition by commissioners pursuant to Section 3, Rule 69 of
the Rules of Court. Not more than three competent and disinterested persons
should be appointed as commissioners to make the partition, commanding
them to set off to the plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without great prejudice to the interest of the parties,
the court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested ask that the
property be sold instead of being so assigned, in which case the court shall
order the commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly.
The partition of the subject property should be made in accordance with the
rule embodied in Art. 996 of the Civil Code. Under the law of intestate
succession, if the widow and legitimate children survive, the widow has the
same share as that of each of the children. However, since only one-half of the
conjugal property which is owned by the decedent is to be allocated to the legal
and compulsory heirs (the other half to be given exclusively to the surviving
spouse as her conjugal share of the property), the widow will have the same
share as each of her two surviving children. Hence, the respective shares of the
subject property, based on the law on intestate succession are: (1) Perla
Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3) Marcelino
G. Dario III, 1/6.
CASE 3: JOSEF v SANTOS
FACTS
Josef was the defendant in a civil case, which is a case for collection of
sum of money filed by Santos, who claimed that petitioner failed to pay the
shoe materials which he bought on credit from respondent on various dates.
RTC found petitioner liable to respondent in the amount of P404,836.50 with
interest at 12% per annum.
CA affirmed. Respondent moved for issuance of a writ of execution, which
was opposed by petitioner. A writ of execution was issued and enforced.
Certain personal properties subject of the writ of execution were auctioned
off. Thereafter, a real property located at Marikina City was sold by way of
public auction to fully satisfy the judgment credit. Respondent emerged as
the winning bidder and a Certificate of Sale was issued in his favor.
Petitioner filed an original petition for certiorari with the CA, questioning the
sheriffs levy and sale of the above mentioned personal and real
properties. Petitioner claimed that the personal properties did not belong to
him but to his children; and that the real property was his family home thus
exempt from execution. CA dismissed petition
ISSUE
WON the levy on the sale of the personal belongings of the
petitioners children as well as the attachment and sale on public
auction by his family home to satisfy the judgment award in favor of
respondent was legal NO
HELD
Petitioner, in his opposition to respondents motion for issuance of a writ of
execution, claimed that he was insolvent; that he had no property to answer
for the judgment credit; that the house and lot in which he was residing at the
time was his family home thus exempt from execution; that the household
furniture and appliances found therein are likewise exempt from execution;
and that these furniture and appliances belonged to his children Jasmin Josef
and Jean Josef Isidro. Thus, as early as during proceedings prior to the
issuance of the writ of execution, petitioner brought to the fore the issue of
exemption from execution of his home, which he claimed to be a family
home in contemplation of the civil law.
However, instead of inquiring into the nature of petitioners allegations in his
opposition, the trial court ignored the same and granted respondents motion
for execution. Hence, the order of the court is null and void.
The family home is a real right which is gratuitous, inalienable and free from
attachment, constituted over the dwelling place and the land on which it is
situated, which confers upon a particular family the right to enjoy such
properties, which must remain with the person constituting it and his heirs. It
cannot be seized by creditors except in certain special cases.
Upon being apprised that the property subject of execution allegedly
constitutes petitioners family home, the trial court should have observed the
following procedure:
1. Determine if petitioners obligation to respondent falls under either
of the exceptions under Article 155
2. Make an inquiry into the veracity of petitioners claim that the
property was his family home (ocular inspection, interview of
members of the community, examine title, etc.)
3. If the property is accordingly found to constitute petitioners family
home, the court should determine:
a) if the obligation sued upon was contracted or incurred prior to, or
after, the effectivity of the Family Code
b) if petitioners spouse is still alive, as well as if there are other
beneficiaries of the family home;
c) if the petitioner has more than one residence for the purpose of
determining which of them, if any, is his family home; and
d) its actual location and value, for the purpose of applying the
provisions of Articles 157 and 160 of the Family Code.
Although we have held in several cases26 that a claim for exemption from
execution of the family home should be set up and proved before the sale of
the property at public auction, and failure to do so would estop the party from
later claiming the exemption since the right of exemption is a personal
privilege granted to the judgment debtor which must be claimed by the
judgment debtor himself at the time of the levy or within a reasonable period
thereafter, the circumstances of the instant case are different. Petitioner
claimed exemption from execution of his family home soon after respondent
filed the motion for issuance of a writ of execution, thus giving notice to the
trial court and respondent that a property exempt from execution may be in
danger of being subjected to levy and sale. Thereupon, the trial court is called
to observe the procedure as herein laid out; on the other hand, the respondent
should observe the procedure prescribed in Article 160 of the Family Code,
that is, to obtain an order for the sale on execution of the petitioners family
home, if so, and apply the proceeds less the maximum amount allowed by
law under Article 157 of the Code which should remain with the petitioner
for the rebuilding of his family home to his judgment credit. Instead, both
the trial court and respondent completely ignored petitioners argument that
the properties subject of the writ are exempt from execution.
Indeed, petitioners resort to the special civil action of certiorari in the Court
of Appeals was belated and without benefit of the requisite motion for
reconsideration, however, considering the gravity of the issue, involving as it
does matters that strike at the very heart of that basic social institution which
the State has a constitutional and moral duty to preserve and protect, as well
as petitioners constitutional right to abode, all procedural infirmities
occasioned upon this case must take a back seat to the substantive questions
which deserve to be answered in full.
CASE 4: SPOUSES DE MESA v SPOUSES ACERO
FACTS
Araceli De Mesa is married to Ernesto De Mesa.They purchased a parcel of
land located in Meycauayan, Bulacan. A house was contracted in the said
property, which became their family home. A year after, Arceli contracted a
loan in the amount of P100,000 from Claudio Acero, which was secured by a
mortgage on the said parcel of land and house. Araceli issued a check for the
payment of the loan. When Acero presented the check to the bank it
was dishonored because the checking account was already closed. Acero
demanded payment. However, Spouses De Mesa still failed to pay. Acero filed
a complaint for violation of B.P. 22 in the RTC. The RTC acquitted the
Spouses but ordered them to pay Acero P100,000 plus legal interest. A writ of
execution was issued to levy on the said property.
The house and lot was sold in the public auction and Acero was the highest
bidder. Acero leased the property to Juanito Oliva, who defaulted payment for
several years. Oliva contends that the Acero spouses are not the owners of the
property.
The MTC rendered a Decision, giving due course to Spouses Aceros
complaint and ordering the Spouses De Mesa and Oliva to vacate the subject
property. Spouses De Mesa contend that they are the rightful owners of the
property. The MTC also stated that from the time a Torrens title over the
subject property was issued in Claudios name up to the time the complaint for
ejectment was filed, the petitioners never assailed the validity of the levy made
by the Sheriff, the regularity of the public sale that was conducted thereafter
and the legitimacy of Aceros Torrens title that was resultantly issued.
Spouses De Mesa filed an action to nullify the TCT issued to Acero. Spouses
De Mesa contend that the subject property is a family home, which is exempt
from execution under the Family Code and, thus, could not have been validly
levied upon for purposes of satisfying the writ of execution. RTC dismissed
the complaint. CA affirmed RTCs decision.
ISSUE
WON the petitioners are guilty of forum-shopping NO
There is no identity of issues and reliefs prayed for in the ejectment case and
in the action to cancel TCT No. T-221755 (M). Verily, the primordial issue
in the ejectment case is who among the contending parties has a better right
of possession over the subject property while ownership is the core issue in
an action to cancel a Torrens title.
It is true that the petitioners raised the issue of ownership over the subject
property in the ejectment case. However, the resolution thereof is only
provisional as the same is solely for the purpose of determining who among
the parties therein has a better right of possession over the subject property.
WON the lower courts erred in refusing to cancel Claudios Torrens
title over the subject property. NO
For the family home to be exempt from execution,distinction must be made as
to what law applies based on when it was constituted and
what requirements must be complied with by the judgment debtor or his
successors claiming such privilege.
The foregoing rules on constitution of family homes, for purposes of
exemption from execution, could be summarized as follows:
 First, family residences constructed before the effectivity of the
Family Code or before August 3, 1988 must be constituted as a family
home either judicially or extrajudicially in accordance with the
provisions of the Civil Code in order to be exempt from execution;
Second, family residences constructed after the effectivity of the
Family Code on August 3, 1988 are automatically deemed to be family
homes and thus exempt from execution from the time it was
constituted and lasts as long as any of its beneficiaries actually resides
therein;
Third, family residences which were not judicially or extrajudicially
constituted as a family home prior to the effectivity of the Family
Code, but were existing thereafter, are considered as family homes by
operation of law and are prospectively entitled to the benefits accorded
to a family home under the Family Code.
Here, the subject property became a family residence sometime in January
1987 when Spouses De Mesa got married. There was no showing, however,
that the same was judicially or extrajudicially constituted as a family home in
accordance with the provisions of the Civil Code. Still, when the Family Code
took effect on August 3, 1988, the subject property became a family home by
operation of law and was thus prospectively exempt from execution. The
petitioners were thus correct in asserting that the subject property was a family
home.
Despite the fact that the subject property is a family home and, thus, should
have been exempt from execution, Spouses De Mesa should have asserted the
subject property being a family home and its being exempted from execution
at the time it was levied or within a reasonable time thereafter. They are
stopped from claiming the exemption of the property from execution.
CASE 5: FORTALEZA v LAPITAN
FACTS
Spouses Fortaleza obtained a loan from spouses Lapitan. As security, spouses
Fortaleza executed a Deed of Real Estate Mortgage over their residential
house and lot. When spouses Fortaleza failed to pay the indebtedness
including the interests and penalties, the creditors applied for extrajudicial
foreclosure of the Real Estate Mortgage. At the sale, the creditors son Dr.
Raul Lapitan and his wife Rona emerged as the highest bidders. The one-year
redemption period expired without the spouses Fortaleza redeeming the
mortgage. Thus, spouses Lapitan executed an affidavit of consolidation of
ownership. Despite the foregoing, the spouses Fortaleza refused spouses
Lapitans formal demand to vacate and surrender possession of the subject
property. Spouses Fortaleza argue that the subject property is exempt from
forced sale because it is a family home.
ISSUE
Is the residential house of the Spouses Fortaleza which was made subject to
a Real Estate Mortgage exempt from execution because it is a family home?
HELD
No. As a rule, the family home is exempt from execution, forced sale or
attachment. However, Article 155(3) of the Family Code explicitly allows the
forced sale of a family home "for debts secured by mortgages on the
premises before or after such constitution." In this case, there is no doubt that
spouses Fortaleza voluntarily executed on January 28, 1998 a deed of Real
Estate Mortgage over the subject property which was even notarized by their
original counsel of record. And assuming that the property is exempt from
forced sale, spouses Fortaleza did not set up and prove to the Sheriff such
exemption from forced sale before it was sold at the public auction. As
elucidated in Honrado v. Court of Appeals: While it is true that the family
home is constituted on a house and lot from the time it is occupied as a
family residence and is exempt from execution or forced sale under Article
153 of the Family Code, such claim for exemption should be set up and
proved to the Sheriff before the sale of the property at public auction. Failure
to do so would estop the party from later claiming the exemption.
As this Court ruled in Gomez v. Gealone: Although the Rules of Court
does not prescribe the period within which to claim the exemption, the rule
is, nevertheless, well-settled that the right of exemption is a personal
privilege granted to the judgment debtor and as such, it must be claimed not
by the sheriff, but by the debtor himself at the time of the levy or within a
reasonable period thereafter. Certainly, reasonable time for purposes of the
law on exemption does not mean a time after the expiration of the one-year
period for a judgment debtor to redeem the property.