Article 749 of the Civil Code: Form of donating land
Status: In force
What does Article 749 say?
In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.
What does it mean in plain language?
Article 749 of the Civil Code sets the form for giving away land or another immovable as a gift. The donation must be made in a public document, which in practice means a deed acknowledged before a notary public. The deed must describe the property and any charges the person receiving it must pay. The person receiving it must accept in the same deed or in another public document, while the donor is still alive.
A donation is an act of liberality: a person gives a thing or right for free to another, who accepts it (Article 725). The giver is the donor; the receiver is the donee.
How does it work in real life?
Lola Pacita's lot
Lola Pacita wants to give her lot to her grandson Mark. She signs a deed of donation before a notary public that describes the lot. Mark accepts in the same deed. Because the deed is a public document and Mark accepted while Lola Pacita was alive, the donation meets Article 749.
"This land is yours"
Mang Tomas tells his daughter in front of the whole family, "This land is yours now." Nothing is signed or notarized. A spoken promise like this is not a valid donation of land.
A new phone as a gift
Ana gives her nephew a phone worth more than ₱5,000. Under Article 748, the donation and the nephew's acceptance must be in writing, or the donation is void.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- A donation to a child is not outside the inheritance rules. Article 909 says donations to children are charged to their legitime. No one may give by donation more than he may give by will, and the excess is "inofficious" (Article 752). In Quilala, the Court said the valid donation was still subject to a test on its inofficiousness. See legitime shares and Article 887.
- A compulsory heir who inherits together with other compulsory heirs must bring what he or she received by donation into the estate when the legitimes and the partition are computed (Article 1061), unless the donor expressly provided otherwise or the donee gives up the inheritance (Article 1062). See extrajudicial settlement of estate.
- Parents choosing between a donation and a sale to a child can compare both in donation vs sale to children.
- Taxes on donations and notarial fees are not covered on this page.
- For free or low-cost legal help, see where to find legal help.
- For a question-and-answer guide, see donating land: does it need a notarized deed?
What does Article 749 say?
In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.
In plain words, a valid donation of land needs:
- A public document. A private paper, or only spoken words, is not enough.
- A description of the property and of the value of any charges the donee must pay.
- Acceptance by the donee, either in the same deed or in a separate public document.
- Acceptance while the donor is alive.
- If the acceptance is in a separate document: the donor is notified in an authentic form, and this is noted in both documents.
Why does the form matter so much?
Most contracts bind in whatever form they are made (Article 1356). A donation of land is different. In Patenia-Kinatac-an v. Patenia-Decena (2020), the Supreme Court called donations of immovable property "solemn contracts" that are valid only when they follow the legal formalities. Without them, the intention of the parties alone does not create a contract.
The same decision, citing earlier rulings, said:
- an oral donation of real property is void, and an action to declare it void does not prescribe;
- a donation is void when the donee's acceptance does not appear in the deed or in a separate document;
- a defective notarization makes the donation of an immovable invalid, because the public document required by law is then missing.
Does the acceptance have to be signed in a special way?
Article 749 asks that the acceptance be in the deed or in a separate public document. In Quilala v. Alcantara (2001), the donee had signed the notarized deed, and the acceptance was written on its first page, but the notary's acknowledgment named only the donor. The lower courts said the donation was void. The Supreme Court reversed them and held that the acceptance "was made in a public instrument". The donation was valid.
What about donations of movables?
Article 748 covers personal property, such as cash, a car or a phone. A donation of a movable may be oral or written. An oral donation needs the thing (or the document representing the right) to be delivered at the same time. If the value of the personal property donated exceeds ₱5,000, the donation and the acceptance must both be in writing; otherwise the donation is void. The ₱5,000 amount is the figure written in the Civil Code of 1949.
Frequently asked questions
Does a donation of land need to be notarized?
Article 749 says the donation of an immovable must be made in a public document. In Patenia-Kinatac-an v. Patenia-Decena (2020), the Court said a defective notarization renders such a donation invalid, because the public instrument required by law is then missing.
Is a verbal donation of land valid?
No. In Patenia-Kinatac-an v. Patenia-Decena (2020), the Court, citing earlier rulings, said an oral donation of real property is void.
How does the person receiving the land accept the donation?
Article 749 says the acceptance may be in the same deed of donation or in a separate public document. It must be made while the donor is alive.
What if the acceptance is in a separate document?
Article 749 says the donor must be notified of it in an authentic form, and this step must be noted in both documents.
Does a donation of a car or cash need a written deed?
Article 748 covers movables. A donation may be oral or written, but if the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance must be in writing, or the donation is void.
Is land donated to a child counted in the inheritance later?
As a rule, yes. Article 909 says donations given to children are charged to their legitime, and Article 1061 requires a compulsory heir who inherits with other compulsory heirs to bring donations received from the deceased into the estate when the legitimes are computed.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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