The HLURB's Jurisdiction
Short Description
The HLURB's Jurisdiction...
Description
PREFACE
One cold night sometime in the year 2008, I had the idea of nally realizing a longtime dream of writing a book that will be published and be read by everyone. Since I got exposed to the Housing and Land Use Regulatory Board (HLURB) cases, I knew I had to write a book which focuses on the procedures, laws and jurisprudence relating thereto. With the available jurisprudence with me, I started to research and compile cases, laws and other write ups concerning the real estate industry. Little did I know that this collection of cases was so vast and it consumed me in my pursuit of writing the book.
With a simple twist of fate, during the height of one of the cases I was handling, my laptop was stolen in front of the Supreme Court, and the manuscript I started writing on was gone forever. Desperate, puzzled, dazed and perplexed, the passion of continuing the book had subsided, and the long and unexpected hiatus left me in a dark oblivion asking myself whether I will continue writing the book. But with a bucket full of perseverance and patience, although back to square one, I was nally again burning the midnight oil for writing the book. Conversely, putting back into pieces the rst few chapters was like searching a missing gold watch in the middle of the unchartered sea. Nevertheless, as soon as my zealousness, passion and enthusiasm fueled me back from this apparent cold hibernation, there was no turning back. After all, Alexandre Dumas Père1 once said, “All human wisdom is summed up in two words – wait and hope.”
1
k.s Alexandre Dumas (pronounced: [a.l3 k.s Alexandre ã d ̃ ʁ dy.ma], born Dumas Davy de la Pailleterie , [dy.ma da.vi dE pa.jEt.ʁi], 24 July 1802 – 5 December 1870) was a French writer, best known for his historical novels of high adventure which have made him one of the most widely read French authors in the world. Many of his novels, including The Count of Monte Cristo, The Three Musketeers, Twenty Years After, and The Vicomte de Bragelonne were originally serialized. He also wrote plays and magazine articles and was a proliccorrespondent. (http://en.wikipedia.org/wiki/ Alexandre_Dumas_père) iii
I have written this book primarily to focus more on the intricacies of the laws and jurisprudence relative to the HLURB. Though this book may not be as complete as one would expect, nevertheless, this will be helpful to law practitioners, law students, and real estate practitioners who are dealing with matters concerning the real estate industry. With this endeavor, it is fervently hoped that this book shall be useful and helpful to everyone who will get a copy, particularly to those who are engaged in the business of real estate and all other matters collateral thereto. On the brighter side, let this book be an inspiration to those who are lurking for sometime in their quest of equally writing a book despite the existence adversaries. Let me end by extending my warmest thanks to those who were instrumental in writing this book: to my family, who has been so patient in listening to me every time I update them; to Atty. Marino Torres of the HLURB, who has provided me with the materials and other Supreme Court decisions; to Atty. Rodolfo Tagapan, whose suggestion of the title was perfect for this book; to Atty. Aristotle Q. Sarmiento, who has introduced me to the world and intricacies of the HLURB cases; to Judge Ed Vincent Albano, who became an instrumentl in the publication of this book; and to REX Bookstore who made the publication of this book a reality.
EDINBURGH P. TUMURAN Cainta, Rizal, July 30, 2012
iv
CONTENTS
Chapter I: INTRODUCTION ................................................
1
Chapter II: THE HUMBLE INCEPTION OF THE HLURB ............................................................
12
I. II. III. IV. V. VI. VII.
Executive Order No. 419 ............................................ Presidential Decree No. 933 ....................................... Presidential Decree No. 957 ....................................... Presidential Decree No. 1344 ..................................... Presidential Decree No. 1396 ..................................... Executive Order No. 648 ............................................ Executive Order No. 85 ..............................................
13 13 13 14 14 14 15
Realty Exchange Venture Corporation, et al. v. Lucina S. Sendino, et al. ......................................
16
VIII. Executive Order No. 90 .............................................. IX. R.A. No. 8763, “Home Guaranty Corporation Act of 2000” ................................................................. X. R.A. No. 9904 ..............................................................
18 19
Chapter III: THE HLURB AS AN ADMINISTRATIVE AGENCY ..................................................................
21
I. The doctrine of primary administrative jurisdiction ............................................................
22
a. b.
Pambujan Sur United Mine Workers v. Samar Mining Co., Inc. ............................. Dulos Realty and Development Corporation v. Hon. Court of Appeals and Vicenta Peleas .........................................................
II. The statutory powers conferred to the HLURB, as an administrative agency, must always be construed according to their legislative intent.......... III. The HLURB has the power and authority to promulgate implementing rules and regulations................................................................... xiii
17
22
23
24
24
IV. Some of the sources of the HLURB’s rule making authority ........................................................ V. The quantum of proof required in administrative cases and elements of administrative due process .................................................................. VI. Exhaustion of administrative remedies..................... a.
b.
General rule ........................................................ Josena Teotico (also known as Baby Santana) v. Rosario D. Baer...................... Exception to the general rule ............................ Sps. Leonardo and Milagros Chua v. Hon. Jacinto G. Ang, et al. .................................
25
27 29 29 29 31 31
VII. Final and executor judgment of the HLURB may no longer be modied ..........................................
36
Felisa L. Peña v. Government Service Insurance System (GSIS) ......................................................
37
VIII. Splitting causes of action is disfavored in the HLURB cases; hence, all causes of action must be alleged in the complaint ........................................ IX. A memorandum decision is allowed in administrative proceedings authorized under Section 40 of B.P. Blg. 129, also known as “The Judiciary Reorganization Act of 1980.” . .................................... X. It is settled that Rules of Procedure, as a matter of course, should be construed liberally in proceedings before administrative bodies (which includes the HLURB). ................................................ Realty Exchange Venture Corporation, et al. v. Lucina S. Sendino, et al. .................................. XI. Exception to the general rule that factual ndings of administrative agencies is given greater respect ............................................................ XII. The New HLURB Rules speed up complaints disposition ................................................................... XIII. A brief analysis of the Rules of Procedure being followed on cases led with the HLURB under Resolution No. 871. ..................................................... 1. Coverage ............................................................. 2. Complaint ........................................................... 3. Service of Summons, Notices, Resolutions, Orders and Decision: In General .............. xiv
42
43
49 49
51 51
53 54 55 55
4. Veried Answer or Responsive Pleading .......... 5. Effect of Failure to File a Veried Answer or Responsive Pleading ............................. 6. Mandatory Conference ....................................... 7. Mediation Proceedings ....................................... 8. Condentiality of Mediation Proceedings ......... 9. Effect of Failure to Appear in the Mediation Proceedings ................................................ 10. Termination of Mediation Proceedings ............. 11. Position Papers and Draft Decisions................. 12. Ocular Inspection and/or Claricatory Hearings ..................................................... 13. Judgment ............................................................ 14. Jurisdiction of the Board of Commissioners ..... 15. Appeal Memorandum......................................... 16. Appeal Bond ....................................................... 17. Counter-Memorandum....................................... 18. Admissibility of New Evidence on Appeal ........ 19. Dismissal of the Appeal ..................................... 20. Judgment of the Board of Commissioners ........ 21. Finality of Judgment.......................................... 22. Execution of Judgments..................................... 23. Execution Pending Appeal ................................. 24. Coverage ............................................................. 25. Creation of a Management Committee ............. 26. Grounds for the Creation of the Management Committee ........................... 27. Cease and Desist Order ..................................... 28. Grounds for the Issuance of Cease and Desist Order ............................................... 29. Petition for Inspection of Books and Records ... 30. Election Contest; Denition............................... 31. Filing of Election Contest .................................. 32. Answer ................................................................
55 55 56 56 56 57 57 57 57 57 58 58 58 58 59 59 59 59 60 60 60 61 61 62 62 62 63 63 63
XIV. Board of Commissioners of the HLURB .................... XV. Certain functions of the HLURB were devolved to the Local Government Units .................................. XVI. The HLURB has the power and authority to regulate the development of Memorial Parks, Cemeteries and Columbarium Projects .....................
64
THE JURISDICTION OF THE HLURB ...
67
I. Jurisdiction in General ...............................................
67
Chapter IV:
xv
65
65
a. b. c.
Denition of Jurisdiction ................................... Jurisdiction is also dened as follows ............... The inevitability of jurisdiction .........................
II. The reasons and justication on the jurisdiction of the HLURB ............................................................. III. The provisions of P.D. No. 957 are intended to encompass all questions relating to subdivisions ..... IV. P.D. No. 1344 enumerated the jurisdiction of the HLURB ............................................................. a.
Example of “unsound real estate business practices” under Section 1 of P.D. No. 1344 ............................................. a.1 Union Bank of the Philippines v. HLURB a.2 The HLURB, not the RTC, has jurisdiction on the developer’s act of using different descriptions of the condominium project .
Tri-Corp Land & Development Inc. v. Court of Appeals and Greystone Corporation ............. V. It must be noted that the allegations in the complaint determines the jurisdiction of the court .................... a. The allegations in the complaint do not show that the HLURB has jurisdiction ............. b. The allegations in the complaint indubitably show that the HLURB has no jurisdiction ................................................. c. The HLURB jurisdiction when there is conict between the title of the case and the allegations in the complaint......................
d.
Spouses William Genato and Rebecca Genato v. Rita Viola ............................................... The RTC, not the HLURB, has jurisdiction on complaint for Action Publiciana ..........
VI. The HLURB has power and jurisdiction to award damages ........................................................... a.
b.
The authority and jurisdiction of the HLURB to award damages either in favor of the complainant or of the defendant ............... The HLURB has no jurisdiction in a complaint led by the buyer against the developer for the payment of moral, actual and exemplary damages ................................... xvi
67 68 69 69 70 70
72 72
73 73 75 77
78
80 80 84 84
85
86
Ridgewood Estate, Inc. (erroneously sued as Camella Homes) v. Expedito Belaos ....................
86
VII. The HLURB has jurisdiction over complaints for specic performance with damages under the Civil Code ..............................................................
89
C.T. Torres Enterprises, Inc. v. Hon. Romeo J. Hibionada..............................................................
90
VIII. The awards of damages and attorney’s fees may not be given when the same were not specically prayed for in the complaint ........................................
91
V.V. Soliven Realty Corp. v. Luis Kung Beng T. Ong ..........................................................
91
IX. Questions relating to non-compliance with the requisites for conversion of subdivision lots fall within the jurisdiction of HLURB..............................
95
Cristobal v. Court of Appeals .....................................
95
X. The enforcement of one’s statutory and contractual rights against the subdivision owners, being a specic performance case, falls under the HLURB’s exclusive jurisdiction ..................................................
97
Oscar R. Badillo v. Court of Appeals, et al. ...............
97
XI. The HLURB has no jurisdiction over the issue of ownership, possession or interest in the disputed condominium unit, under Section 1 of P.D. No. 1344 ..............................................................
100
Sps. Carlos J. Suntay and Rosario R. Suntay v. Eugenia D. Gocolay and Dunstan T. San Vicente ...........................................................
101
XII. Not every controversy involving a subdivision or condominium unit falls under the competence of the HLURB .............................................................
105
Lacson Hermanas, Inc. v. Heirs of Cenon Ignacio ...................................................................
105
XIII. The HLURB, not the RTC, has jurisdiction over claims for refund of reservation fees for the purchase of a subdivisions property ..........................
108
Atty. Enriqueto F. Tejada v. Homestead Property Corporation, et al ..................................
108
xvii
XIV. The RTC, not the HLURB, has jurisdiction over the complaint for cancellation of the contract to sell of a subdivision house and lot ....................................
110
XV. The HLURB has jurisdiction in cases over an action to compel a land developer to deliver a promised title over one-fourth a subdivision lot .......
111
Spouses Ernesto Lim and Zenaida Lim v. Ruby Shelter Builders and Realty Development Corporation ....................................
111
XVI. The HLURB has jurisdiction in cases which involve a mortgage entered into by the real estate developer .....................................................................
114
Home Bankers Savings & Trust Co. v. The Honorable Court of Appeals .......................................
114
XVII. Principles of estoppel and laches to raise the issue on jurisdiction ....................................................
116
a. b.
As to the Principle of Estoppel ............................ As to the Principle of Laches ...............................
116 121
XVIII. The Supreme Court ruled that a party who les a suit before a court that lacks jurisdiction is not necessarily estopped from raising the issue of jurisdiction .............................................. XIX. The jurisdiction on receivership led by the homeowner is with the HLURB and not with the Securities and Exchange Commission ..........
123
a. b.
124
Receivership, dened ......................................... Supreme Court sustained the jurisdiction of the HLURB to try and hear a case involving receivership ...............................
124
Jesus Lim Arranza, et al. v. B.F. Homes, Inc............
126
XX. The HLURB has jurisdiction to resolve the issue of development of subdivision .............................. XXI. The HLURB has jurisdiction to determine the rights and Obligations of the parties in a sale of real estate and to compel the developer to comply with its undertaking ................................ XXII. In a complaint for reformation of contract, the RTC, and not the HLURB, has jurisdiction over the same ........................................................ xviii
126
132
132
133
Frabelle Fishing Corporation v. The Philippine American Life Insurance Company, et al. .......... XXIII. Finding of facts by administrative agencies (which includes the HLURB) is generally accorded respect ................................................... XXIV. There are hundreds of administrative bodies now performing this function by virtue of laws enacted by congress. This quasi-judicial function is exercised by them as an incident of the principal power entrusted to them or regulating certain activities falling under their particular expertise ..................................... XXV. The HLURB has no jurisdiction on cases led by the land owner or developer against the buyer .. a.
b.
133
136
136 137
The original jurisprudence: The HLURB has jurisdiction on cases led by owner/ developer of subdivision against buyer ....
137
Francel Realty Corporation v. Court of Appeals and Francisco T. Sycip ..............................
138
The recent jurisprudence: the HLURB has no jurisdiction on cases led by the owner/developer of subdivision against the buyer ....................................... The HLURB has no jurisdiction on a case led by the developer or the owner of a subdivision ..........................................
141
Leta Dela Cruz v. Court of Appeals ..................
145
The RTC, and not the HLURB, has jurisdiction in cases led by the owner and developer of real estate...............................................
148
Jin-Jin Delos Santos v. Spouses Sarmiento, et al. ............................................................
148
Exception to the general rule where the developer/owner can le a case against the buyer with the HLURB is when the cause of action of the owner or developer is instituted in the compulsory counterclaim ..............................................
153
Jin-Jin Delos Santos v. Spouses Sarmiento..............
153
c.
d.
e.
xix
145
XXVI. HLURB jurisdiction over issues involving disputes amongst and between homeowners association.............................................................
154
Edna Eugenio v. Sta. Monica Riverside Homeowners Association .....................................
154
a.
The HLURB has jurisdiction over the case involving dispute between homeowners’ association ..................................................
158
Maria Luisa Park Association, Inc. v. Samantha Marie T. Almendras, et al. ........................ 158 b.
If the allegations in the complaint state that there is no intra-corporate dispute amongst members of the homeowners association, the RTC, not the HLURB, has jurisdiction over the complaint for damages on an alleged violation of their right of access through the subdivision and on the alleged embarrasment and humiliation suffered by them....................
163
Sta. Clara Howeowners’ Association v. Victor Ma. Gaston and Lydia Gaston .......
163
XXVII. A Regional Trial Court judge cannot issue a Temporary Restraining Order and Writ of Preliminary Injunction against the HLURB’s Writ of Execution considering that both are co-equal bodies ...............................................
171
Russel Esteva Coronado v. Judge Eddie R. Rojas /Alfredo S. Capisin, et al. Judge Eddie R. Rojas .......................................
171
XXVIII. The RTC has no power and authority to restrain or issue Temporary Restraining Order against the HLURB on cases involving questions on subdivisions and condominiums under P.D. No. 957 ...............................................
174
Romulo R. Peralta v. Hon. Raul E. De Leon .......
174
XXIX. The Ofce of the Prosecutor and not the HLURB has jurisdiction to determine the existence of probable cause as a prelude for the ling of xx
a criminal information for the violation of P.D. No. 957 ......................................................
179
Sps. Leonardo and Milagros Chua v. Hon. Jacinto G. Ang, Dennis R. Pastrana, et al ......
179
XXX. The HLURB, not the DENR, is the sole regulatory body for housing and land development which is tasked for the responsibility of monitoring housing and land development projects ...................................
183
Ignacia Balicas v. Fact-Finding & Intelligence Bureau (FFIB), Ofce of the Ombudsman ..........
184
XXXI. Under P.D. No. 957, the civil and criminal actions are independent of each other, and there exist no prejudicial question in the former over the latter ............................................................... 187 XXXII. The HLURB has jurisdiction to determine the question on whether there is a perfected contract of sale between a condominium buyer and developer ............................................................... 187 Spouses Cesar and Elvira Raet, et al. v. Court of Appeals ...............................................
187
Chapter V: PRESIDENTIAL DECREE NO. 957 ...............
192
Presidential Decree No. 957: Regulating the Sale of Subdivision Lots and Condominiums, Providing Penalties for Violations Thereof .......................................
192
I. Government agencies that play major role in shaping the face of the real estate industry........
194
a.
National Home Mortgage Finance Corporation (NHMFC) .............................. National Housing Authority (NHA) .................. Home Development Mutual Fund (HDMF) ...... Housing and Urban Development Coordinating Council (HUDCC) ............... Hoem Guaranty Corporation (HGC) .................
194 195
II. The distinctive intention of P.D. No. 957 is for the ultimate protection of innocent lot buyers against the seemingly manipulative and scheming subdivision developers.........................
197
b. c. d. e.
xxi
194 194 194
Florencio Eugenio v. Executive Secretary Franklin M. Drilon, Housing and Land Use Regulatory Board (HLURB) and Prospero Palmiano ............
200
III. The Supreme Court used the statute’s preamble or the introductory or preparatory clause that ultimately expounds the reasons for its being enacted and for its interpretation .......................
203
Marjorie B. Cadimas, et al. v. Marites Carrion and Gemma Hugo .................................................
203
Title I: TITLE AND DEFINITIONS ........................................
205
Jacobus Bernhard Hulst v. PR Builders, Inc. ..................
208
Title II: REGISTRATION AND LICENSE TO SELL .............
214
Ruben S. Sia and Josephine Sia v. People of the Philippines and Teresita Lee ...............................
220
I. The total absence of certicate of registration and license to sell does not ipso facto render the contract null and void ....................................
225
Spouses Howard T. Co Chien and Susan Y.Co Chien v. Sta. Lucia Realty & Development, Inc., and Alsons Land Corporation......................
225
II. The lack of Certicate of Registration/License to Sell merely subjects the developer to administrative sanctions......................................
228
G.G. Sportswear Mfg. Corp. v. World Class Properties ..............................................................
228
III. The absence of license to sell does not affect the validity of an already perfected contract of sale between buyer and owner or developer .......
235
Vicenta Cantemprate, et al. v. CRS Realty Development Corporation, et al. ..........................
235
IV. Checklist of requirements for Certicate of Registration and License to Sell ..........................
238
I. Two ways wherein the license to sell may be suspended ............................................................... a. Through a veried petition ................................ b. By the HLURB motu proprio or upon its own initiative ............................................. xxii
245 245 246
II. How can the suspension order be lifted ..................... III. Condentiality nature of the Suspension Order .......
246 247
Title III: Dealers, Brokers and Salesmen .................................
249
Title IV: Procedure for Revocation of Registration Certicate .............................................................
254
I. Resolution No. 871 of the HLURB ............................. Land Bank of the Philippines v. Severino Listana, Sr. ...........................................................
256
Rule 22 – CONTEMPT ..............................................................
260
Sec. 80. Direct Contempt ........................................................... Sec. 81. Indirect Contempt ........................................................ Sec. 15. Decision .........................................................................
260 260 261
I. The doctrine of nality of judgment........................... II. Manner of execution not in accord with the tenor and terms of judgment................................................ III. The doctrine of immutability of judgment .................
262 262 263
Sec. 16. Cease and Desist Order ............................................... Sec. 17. Registration ..................................................................
263 265
I. Allocation of open space to be used as park and playground ...........................................................
266
Spouses Claudio M. Anonuevo and Carmelita Anonuevo v. Court of Appeals, et al. .........................
266
II. Seller is duty bound to register the Contract to Sell and/or Deed of Assignment ...................... Sec. 18. Mortgages .....................................................................
271 274
Sec. 1. Complaint in action for closure .....................................
275
I. Declaration of nullity of real estate mortgage........... II. Provision enacted on July 1976 applied to a mortgage executed on December 1975 .............
277
259
278
Philippine National Bank v. Ofce of the President, et al......................................................
278
III. Declaration of nullity of Real Estate Mortgage.........
283
Metropolitan Bank and Trust Company Inc. v. SLGT Holdings, Inc., et al/United Coconut Planters Bank SLGT Holdings, Inc. et al. ..........
283
xxiii
IV. Acts committed contrary to Section 18 of P.D. No. 957 are void. ........................................... V. Failure of the bank to inquire about prior written approval of the HLURB before the property was used as collateral ...........................
290
Home Bankers Savings and Trust Co. v. Court of Appeals..............................................................
291
Sec. 19. Advertisement ..............................................................
294
I. Failure of the developer to provide buyer the features indicated in their brochure....................
296
Bank of the Philippine Islands v. ALS Management & Development Corp. ....................
296
Sec. 20. Time of Completion ......................................................
299
I. Non-compliance of the owner or developer to complete the project within a period of one year from the date of the issuance of the license .............................................................
300
Zamora Realty, et al. v. Ofce of the President of the Philippines and Edilberto C. Gallardo......
300
Sec. 20. Time of Completion ...................................................... Sec. 23. Non-forfeiture of Payments .........................................
301 301
II. Two remedies in case of incomplete development of the subdivision project .....................................
304
Sec. 21. Sales Prior to Decree ....................................................
304
I. Section 20, in relation to Section 21, requires owner or developer to construct facilities, improvements and infrastructures indicated in the approved subdivision or condominium plans, brochures and any form of advertisement ..........................................
305
Jose Antonio Mapa v. Hon. Joker Arroyo, et al.........
306
I. Alteration envisioned under Section 22 of P.D. 957 must be made with the written conformity or consent of the duly organized homeowners association or the majority of the lot buyers ....................................................
310
G.O.A.L. Inc. v. Court of Appeals, et al. ....................
310
xxiv
289
Sec. 23. Non-forfeiture of Payments .........................................
312
I. Action to be taken of the buyer upon failure of the developer to cause the development of the subdivision lot or condominium unit ............
313
G.G. Sportswear Mfg. Corp. v. World Class Properties, Inc. .....................................................
313
II. Buyers are entitled to reimbursement of the amount paid, plus interest thereon .....................
314
Fil-Estate Properties, Inc. v. Spouses Gonzalo and Consuelo Go ...................................................
314
III. Failure to develop a subdivision does not constitute a legal justication for the non-payment of amortizations by a buyer .....................................
319
Florencio Eugenio v. Executive Secretary Franklin M. Drilon, HLURB and Prospero Palmiano .......
319
Sec. 20. Time of Completion ...................................................... Sec. 21. Sales Prior to Decree .................................................... Sec. 23. Non-forfeiture of Payments .........................................
320 321 321
IV. Securing a clearance from the HLURB is not needed to lawfully withhold monthly payments ..............................................................
323
Francel Realty Corporation v. Ricardo T. Sycip ........
323
Sec. 23. Non-forfeiture of Payments ......................................... V. Subsequent dishonor of the check without valid cause ............................................................
323
Francisco T. Sycip, Jr. v. Court of Appeals .........
326
VI. The HLURB properly applied Section 23 of P.D. No. 957 and ordered the suspension of payment valid ...................................................
328
Sec. 23. Non-forfeiture of Payments ......................................... Sec. 24. Failure to Pay Installments .........................................
328 330
I. R.A. No. 6552 makes no distinction between “option” and “sale” ................................................
332
Realty Exchange Venture Corporation and/or Magdiwang Realty Corporation v. Lucina S. Sendino, et al. .......................................................
332
Sec. 24. Failure to Pay Installments .........................................
333
xxv
325
Sec. 25. Issuance of Title ...........................................................
335
I. The justication that squatters entered the property after the developer has incurred delay is not a valid reason for non-delivery of title .................................................................... II. The owner or developer loses all its rights and interests to the unit upon full payment of the buyer ...........................................................
336
G.O.A.L. Inc., v. Court of Appeals, et al. ...................
336
Sec. III. (Contract to Sell).– Title and Ownership of Unit ....... Sec. 25, P.D. 957 – Issuance of Title .........................................
337 338
III. Administrator of the estate of the developer cannot be held criminally liable if non-delivery of title was due to the pendency of a probate proceedings in Court ............................................
338
Tomas Trinidad v. The Court of Appeals ..................
339
Sec. 26. Realty Tax .....................................................................
343
I. Non-payment of taxes and other assessments are not grounds for the non-delivery of title .......
344
336
Sec. 27. Other Charges ............................................................. I. Powers of the homeowners association emphasized under Section 12 of R.A. No. 9904 ........................................................
344
Sec. 28. Access to Public Ofces in the Subdivisions .............. Sec. 29. Right of Way to Public Road .......................................
345 346
I. Section 29 of P.D. No. 957 applies only to the owner or developer of a subdivision without access to a public highway ...................................
346
Concordio Abellana, et al. v. Hon. Court of Appeals, et al. .......................................................
346
Sec. 29. Right of Way to Public Road ........................................
347
II. The owner/developer of a subdivision cannot demand a compulsory easement of right of way over the existing roads of an adjacent subdivision ............................................................
348
Simeon Floro v. Orlando A. Llenado, et al. ...............
348
Sec. 30. Organization of Homeowners Association ..................
351
xxvi
345
Sec. 31. Donations of roads and open spaces to local government ........................................................................
352
I. The provisions of. P.D. No. 1216 cannot be given retroactive effect. ..................................................
354
Gloria Santos Dueñas v. Santos Subdivisions Homeowners Association .....................................
354
II. P.D. No. 957 provides that it is the registered owner or developer of a subdivision has the responsibility for the maintenance, repair and improvement of a subdivision roads ............
356
Aniano A. Albon v. Bayani F. Fernando, et al...........
356
III. A subdivision owner/developer is legally bound under P.D. No. 1216 to donate to the city or municipality the “open space” allocated exclusively recreational use .................................
359
The City of Angeles v. Court of Appeals ....................
360
Sec. 31. Donation of roads and open spaces to local government ........................................................................ Sec. 32. Phases of Subdivisions ................................................ Sec. 34. Visitorial powers.......................................................... Sec. 35. Take-over Development .............................................. Sec. 36. Rules and Regulations ................................................
362 365 366 368 368
I. The HLURB’s power and authorization to promulgate implementing rules and regulation was upheld by the Supreme Court ....
369
Sec. 37. Deputization of law enforcement agencies................. Sec. 38. Administrative Fines ..................................................
370 370
I. Ignorance of P.D. No. 957 is not a ground to be excused from administrative nes and penalties ................................................................
371
Sec. 39. Penalties ......................................................................
371
I. The penal provision .................................................... II. The civil action pending with the HLURB is not a ground to suspend a criminal action ..........
371 372
Rule 111 – PROSECUTION OF CIVIL ACTION ....................
372
Sec. 6. Suspension by reason of prejudicial question .............. Sec. 7. Elements of prejudicial question ..................................
372 372
xxvii
III. Department Circular No. 27 of the Department of Justice ...............................................................
373
Department Circular No. 27.......................................
374
IV. The subsequent issuance of a license to sell will not extinguish the liability of the developer for violation of Section 5 of P.D. No. 957 .............
375
Victoria P.Cabral v. Jacinto Uy, et al. .......................
375
V. The City of Prosecutors’ Ofce of Naga City has the authority to le the criminal information for violations of P.D. No. 957 ...............................
378
Ruben S. Sia and Josephine Sia v. People of the Philippines and Teresita Lee ...............................
378
Sec. 40. Liability of controlling persons ................................... Sec. 41. Other remedies ............................................................ Sec. 42. Repealing clause .......................................................... Sec. 43. Effectivity......................................................................
382 382 383 384
Chapter VI: REPUBLIC ACT 6552 ......................................
385
Republic Act No. 6552: An Act to Provide Protection to Buyers of Real Estate on Installment Payments.............
385
Sec. 1. Realty Installment Buyer Act........................................ Sec. 2. It is hereby declared a public policy to protect buyers of real estate on installment payments against onerous and oppressive conditions ...................... Sec. 3. ....................................................................................... I. R.A. No. 6552 cannot be applied if the buyer did not buy the property by installments .................
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Lagandon v. Court of Appeals ....................................
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II. No valid rescission of contract pursuant to R.A. No. 6552 if demand letter was furnished, not a notarial cancellation .................
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Olympia Housing, Inc. v. Panasiatic Travel Corporation, et al..................................................
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III. R.A. No. 6552 nds no application in contracts that does not involve a subdivision owner or developer but only between two couples .........
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Dela Cruz v. Court of Appeals ....................................
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IV. Cancellation envisioned by R.A. No. 6552 pertains only to extrajudicial cancellation ..........
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Heirs of Paulino Atienza v. Domingo P. Espidol .......
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V. The rescission contemplated by R.A. No. 6552 is a notarial cancellation ......................................
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Manuel C. Pagtalunan v. Runa Dela Cruz vda. De Manzano ..........................................................
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Sec. 4
I. The cancellation of a contract with its two-step process ................................................................... II. The absence of a notarial cancellation pursuant to R.A. No. 6552 does not bar the ling of a complaint for judicial cancellation ...................... III. How to compute the cash surrender of fty percent of the total payments made with respect to the two-year monthly installments paid ........................................................................
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Jestra Development and Management Corporation v. Daniel Ponce Pacico ..................
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IV. The contract to sell cannot be considered abandoned without notarial cancellation............
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Solid Homes, Inc. v. Evelina Laserna ........................
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V. R.A. No. 6552 is applicable in rescission of contract to sell ...................................................... a. Emiliano Rillo v. Court of Appeals and Corb Realty Investment, Corp.................................. b.
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Active Realty & Development Corporation v. Necita G. Daroya ..........................................
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Chapter VII: REPUBLIC ACT NO. 9904 ...........................
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I. What is the Declaration of Policy of R.A. No. 9904? ...................................................... II. What is an association? .............................................. III. What is an association member? ................................ IV. What is the basic community services and facilities? ........................................................ V. What is the board? ...................................................... VI. What is a governing document? ................................. VII. What is a homeowner?................................................ xxix
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VIII. IX. X. XI. XII. XIII. XIV. XV. XVI.
XVII. XVIII. XIX.
XX. XXI. XXII. XXIII. XXIV.
XXV. XXVI. XXVII. XXVIII.
XXIX.
What is a simple majority? ......................................... What is a socialized housing?..................................... What is a subdivision/village? .................................... Is there a need for the registration of every association of homeowners with the HLURB?.... What are the rights and duties of every homeowner? .......................................................... What are the qualications of the members? ............ What are the rights of a member? ............................. What are the duties of a member? ............................. How will the delinquent members be sanctioned by the homeowners association? ........................................................... What are the rights and powers of the association? ........................................................... What are the duties and responsibilities of the board? ......................................................... In what instances wherein the board of directors are not allowed in behalf of the association?..................................................... How can a director or trustee be removed from ofce? ............................................................ Once a director is removed from ofce, how is the vacancy lled?............................................. How can the board be dissolved? ............................... Once the board is dissolved, who then can call for the elections of new board of directors? ......... During the interim of the dissolution of the former board and until the new set of board shall have been elected, who shall manage the association?..................................................... How is the bylaws of the association adopted? ......... What are the contents of the bylaws of the association? ........................................................... How can a proxy voting be made? .............................. What are the obligations of the incumbent ofcers respect to the nancial and other records of the homeowners? ................................. What are the duties of the homeowners’ associations with respect to the LGUs in providing vital services to their members and help implement local government policies, programs, ordinances, and rules? ........................ xxx
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XXX. In return, what shall the LGU do to reciprocate the homeowners association?............................... XXXI. What are the duties of the associations with respect to the national members and help implement the national government policies and programs? ...................................................... XXXII. What are the duties and responsibilities of the HLURB with respect to the homeowners? .......... XXXIII. What are the prohibited acts for homeowners and homeowners’ associations? ........................... XXXIV. What are the penalties and sanctions in the event that there is violation of the provisions of R.A. No. 9904? .................................................. XXXV. What is the limitation as to the implementations of the Rules and Regulations of R.A. No. 9904? ...................................................... XXXVI. What actions should the existing homeowners association have to do with respect to its by-laws after the effectivity of under R.A. No. 9904 ........................................................ XXXVII. What is an election contest? ....................................... XXXVIII. What is the period for ling an election contest? ................................................................. XXXIX. What is the duty of the arbiter upon ling of the complaint? .................................................. XL. What is the period for the respondent to answer the complaint? ......................................... XLI. What is the effect of failure to answer? ..................... XLII. What is the period to call for a claricatory Conference and what is the scope thereof? ......... XLIII. What shall be the basis of the decision of the arbiter? ....................................................... XLIV. Is the decision of the arbiter immediately executor? ............................................................... XLV. What is the procedure in the event that there is a failure of election?.......................................... XLVI. In the event that a regular or special election is not held, what are the requirements that the association will submit with the Regional Ofce of the HLURB? ........................................... XLVII. What is the remedy of the event that the reasons stated in the afdavit of non-holding of election are found to be without merit?........... xxxi
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XLVIII. How can the incumbent homeowners association ofcers assume their respective ofce in a hold-over capacity? ............................................ XLIX. What is the procedure in Election Contests? ............ L. When did R.A. No. 9904 take effect?..........................
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Chapter I
INTRODUCTION “The family should be a closely knit group. The home should be a selfcontained shelter of security; a kind of school where life’s basic lessons are taught; and a kind of church where God is honored; a place where wholesome recreation and simple pleasures are enjoyed.”
– Billy Graham1
T
he vast and abundant wealth found in the wilderness, the endless horizon seen on the open ocean, the countless pebbles scattered along the sea shore, the perpetual wideness displayed by the vast blue sky and the limitless supply of fresh air every minute we breathe are only a few things that we can enjoy seemingly in innite fashion without fear of restrictions from other forces. This may be true when times we seek to enjoy the gifts of nature in the adventurous side of our lives and in a gratuitous manner. But not all good things in life are free and we cannot get something for gratis or conquer success out of nothing. Succinctly put, one should burn the midnight oil to earn a modest and clean living for him to ultimately and unquestionably achieve his dreams and triumphantly reach his goals and aspirations in life. And in everything we undertake in life, whether extremely monumental or simply trivial, there is a price to pay. Like in a family, 1
William Franklin “Billy” Graham, Jr. American evangelical Christian reverend/evangelist. As of April 25, 2010, when he met with Barack Obama, Graham has spent personal time with twelve United States presidents going back to Harry S. Truman, and is number seven on Gallup’s list of admired people for the 20th century. He is a Southern Baptist. He rose to celebrity status as his sermons were broadcast on radio and television. It is said that Graham has preached in person to more people around the world than any other preacher in history. According to his staff, as of 1993 more than 2.5 million people have “stepped forward at his crusades to accept Jesus Christ as their personal Savior,” many to the altar call song “Just As I Am.” As of 2008, Graham’s lifetime audience, including radio and television broadcasts, topped 2.2 billion. (http://en.wikipedia.org/wiki/Billy_Graham [as of January 19, 2011]) 1
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THE HLURB’S JURISDICTION
owning a house they can call their home, regardless of its gargantuan size or diminutive existence is a signicant accomplishment that one will always nd pride, joy and blissfulness in his heart. A nation is built on a strong foundation of a family that serves as a single unit composed of its household that plays a major role in the nation’s development, growth and success. It is always a dream of every Filipino family to own a decent house they can call their home for them to foster stronger family ties and everlasting bonding. This is likewise a comfort zone for the head of the family to rear his children in a more conducive place to live in. A dream that every family desires to achieve. As Lord Edward Coke Lord2 once wrote, to wit: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”
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Sir Edward Coke (pronounced “Cook”) (February 1, 1552 – September 3, 1634) was a seventeenth-century English jurist and Member of Parliament whose wr itings on the common law were the denitive legal texts for nearly 150 years. Born into a family of minor Norfolk gentry, Coke travelled to London as a young man to make his living as a barrister. There he rapidly gained prominence as one of the leading attorneys of his time, eventually being appointed Solicitor General and then Attorney General by Queen Elizabeth. As Attorney General, Coke famously prosecuted Sir Walter Raleigh and the Gunpowder Plot conspirators for treason. In 1606, Coke was made Chief Justice of the Court of Common Pleas, later being elevated, in 1613, to Lord Chief Justice of England. As a judge, Coke delivered numerous important decisions, and he gained a reputation as the greatest jurist of his age. Nonetheless, his unwillingness to compromise in the face of challenges to the supremacy of the common law made him increasingly unpopular with James I, and he was eventually removed as Lord Chief Justice in 1616. Despite his dismissal from the bench and his already advanced age, Coke remained an inuential political gure, leading parliamentary opposition to the Crown in the 1620s. His career in parliament culminated in 1628 when he acted as one of the primary authors of the Petition of Right. This document reafrmed the rights of Englishmen and prevented the Crown from infringing them. Coke’s enduring fame and importance rests principally on his immensely inuential legal writings and on his staunch defence of the rule of law in the face of royal absolutism. His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. As a judge and Member of Parliament, Coke supported individual liberty against arbitrary government and sought to ensure that the king’s authority was circumscribed by law. In later times, both English reformers and American Patriots, such as John Lilburne, ames Otis, and John Adams, used Coke’s writings to support. (found at http://en.wikipedia.org/ wiki/Edward_Coke as of January 21, 2011.)
CHAPTER I INTRODUCTION
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One will always see that shelter is one of the basic needs of every individual to live normally. Although, most Filipino families are striving to acquire real properties, either a house and lot or a lot only, they are not equipped with the necessary nancial capacity, either because they do not have enough incomes to acquire the same, or the current prices of real estate properties are too expensive and can only be afforded by those who are earning substantial incomes. We rather spend our hard earned money on basic needs, such as food, clothing, education, to name a few, and save a considerable amount for our future needs. This is a nagging reality, and an endless cycle that we are all facing everyday in our lives. No less than the 1987 Constitution so provides that, “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. x x x.3” This is a testimony that the family is so essential to the growth of a nation. Another provision of the 1987 Constitution that is worth reckoning with is Section 9, Article XIII of Social Justice and Human Rights Urban Land Reform and Housing which provides that: “Sec. 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.” Moreover, Section 7 of Article XII of the 1987 Constitution reserves only the ownership of real estate properties to Filipino citizens: Sec. 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualied to acquire or hold lands of the public domain. (Emphasis supplied).
3
First sentence of Section 12, Article II (Declaration of Principles and State Policies Principles) of the 1987 Constitution.
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