Dear PAO,
I have a tenant who has failed to pay for three consecutive months. The rental fee is P5,000.00 per month.
He is ignoring my claims and refuses to talk to me. I already filed a
complaint before the Barangay but he never showed up during the
hearings. What should I do?
Zarina
Dear Zarina,
What exists
between you and your tenant is a contract of lease. Pursuant to Article
1654 of the New Civil Code of the Philippines, you are obliged to: (1)
deliver the thing which is the object of your contract in such a
condition as to render it fit for the use intended; (2) make all the
necessary repairs, during the subsistence of your contract, in order to
keep it suitable for the use to which it has been devoted, unless there
is a stipulation to the contrary; and (3) maintain the lessee in the
peaceful and adequate enjoyment of the thing leased for the entire
duration of your contract. On the part of your tenant, he is obliged,
among others, to pay the price of the lease according to the terms the
two of you have agreed on (Article 1657 (1), id).
Accordingly, we
submit that you have the right to claim from your tenant the payment of
his rental arrears. However, your legal claims must first be threshed
out before the Barangay since, as you have mentioned in your letter, you
have filed your claims therein. It is worth emphasizing that our
regular courts will not take cognizance of any existing claim which is
well within the jurisdiction of the Barangay.
Nevertheless, you
may seek for the issuance of a certificate to file action from your
Barangay Chairman. Such recourse is available if the obligee, the lessee
as in this case, continues to avoid attending the hearings before the
Barangay, making amicable settlement unattainable. Thereafter, you may
proceed with filing an action for ejectment against your lessee. As
provided for under Section 9 of Republic Act No. 9653, otherwise known
as the Rent Control Act of 2009, “Ejectment shall be allowed on the
following grounds: x x x (b) Arrears in payment of rent for a total of
three months: x x x” You may also ask for the payment of the amount
which your lessee owes you, as well as damages, if you have incurred
any.
We hope that we were able to answer your queries. Please be
reminded that this advice is based solely on the facts you have narrated
and our appreciation of the same. Our opinion may vary when other facts
are changed or elaborated.
source: Manila Times' Column by
Thursday, April 18, 2013
Saturday, April 13, 2013
Family Code: Infidelity no reason for deportation
Dear PAO,
I just want to know whether or not I can have my father deported from Saudi Arabia. He had an affair with another woman in Khamis, Saudi Arabia while he is married to my mother. Can you advise us on what we should do? Thank you.
NRK
Dear NRK,
Spouses are obliged to remain faithful to each other. Such obligation is expressly provided for under Article 68 of the Family Code of the Philippines: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Mere distance should not serve as an excuse for both of the spouses to falter from their mutual responsibilities. Instead, distance should serve as a motivation for them to make their love for each other stronger.
In the situation you have presented before us, it is undeniable that your father has violated his legal obligation to your mother. He should not have had an affair with another woman. However, we do not see such violation as a sufficient ground in order to have your father deported from Saudi Arabia. To begin with, your father has the right to travel, like any of us, and such right is protected by no less than our Constitution. It may only be thwarted in the instances recognized under the law. As provided for under Section 6, Article III of the 1987 Philippine Constitution, “x x x Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
Aside from the foregoing, it bears stressing that deportation mainly rests on the laws of the country where the alleged violator is. Accordingly, your father may only be deported by the government of Saudi Arabia if it is proven that he has violated a law of that country.
We would like to emphasize that we are not condoning what your father has done. As we have mentioned earlier, he has violated his obligation. Nonetheless, we must remain guided by our laws. In addition, we must respect the laws of other countries.
source: Manila Times' Column by
I just want to know whether or not I can have my father deported from Saudi Arabia. He had an affair with another woman in Khamis, Saudi Arabia while he is married to my mother. Can you advise us on what we should do? Thank you.
NRK
Dear NRK,
Spouses are obliged to remain faithful to each other. Such obligation is expressly provided for under Article 68 of the Family Code of the Philippines: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Mere distance should not serve as an excuse for both of the spouses to falter from their mutual responsibilities. Instead, distance should serve as a motivation for them to make their love for each other stronger.
In the situation you have presented before us, it is undeniable that your father has violated his legal obligation to your mother. He should not have had an affair with another woman. However, we do not see such violation as a sufficient ground in order to have your father deported from Saudi Arabia. To begin with, your father has the right to travel, like any of us, and such right is protected by no less than our Constitution. It may only be thwarted in the instances recognized under the law. As provided for under Section 6, Article III of the 1987 Philippine Constitution, “x x x Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.”
Aside from the foregoing, it bears stressing that deportation mainly rests on the laws of the country where the alleged violator is. Accordingly, your father may only be deported by the government of Saudi Arabia if it is proven that he has violated a law of that country.
We would like to emphasize that we are not condoning what your father has done. As we have mentioned earlier, he has violated his obligation. Nonetheless, we must remain guided by our laws. In addition, we must respect the laws of other countries.
source: Manila Times' Column by
Wednesday, April 10, 2013
As negotiable instrument, laws set limitations on checks
Dear PAO,
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
Tuesday, April 9, 2013
Buyer can return defective vehicle
Dear PAO,
I bought a second hand car from an auto exchange shop. The dealer guaranteed to me that the car is in good condition for it was only used by the first owner for two years. The car was exactly in good condition as guaranteed. But after three months, we started to encounter several problems such as over-heating. We went back to the auto exchange shop to complain this matter. They have repaired the car but still we encountered the same problem. What other solutions are available to us? Can we just demand for the return of our payment?
Ignacio
Dear Ignacio,
In a contract of sale, one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. The vendor is not only obliged to transfer the ownership of and deliver, but he has the obligation to warrant the thing sold. In connection therewith, the seller impliedly warrants that he has the right to sell the thing at the time when the ownership is to pass, and that the buyer shall from that time have and enjoy the legal and peaceful possession of the thing. There is also an implied warranty that the thing shall be free from any hidden faults or defects, or any charge or encumbrance not declared or known to the buyer (Articles 1458, 1495 and1547, Civil Code).
In your situation, we suggest that you refer first your problem to the written warranty existing in
connection with the sale of the vehicle. The obligations and liabilities of the auto exchange shop, as the seller, even if the vehicle bought is second hand, shall be based upon the written warranty that exists. In the absence thereof, the shop shall remain to be liable under its implied warranty as already mentioned. More particularly, the liability of the shop is clear under Articles 1561 and 1567 of the Civil Code, stating that the seller shall be responsible for warranty against hidden defects which the thing sold may have, should they render it unfit for the use for which it is intended, or should they diminish its fitness for such use to such an extent that, had the buyer been aware thereof, he would not have acquired it or would have given a lower price for it. In such a case, you may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damage in either case. Thus, you may demand from the shop for the return of the vehicle bought and the refund of the payment made with damages.
source: Manila Times' Column by
I bought a second hand car from an auto exchange shop. The dealer guaranteed to me that the car is in good condition for it was only used by the first owner for two years. The car was exactly in good condition as guaranteed. But after three months, we started to encounter several problems such as over-heating. We went back to the auto exchange shop to complain this matter. They have repaired the car but still we encountered the same problem. What other solutions are available to us? Can we just demand for the return of our payment?
Ignacio
Dear Ignacio,
In a contract of sale, one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. The vendor is not only obliged to transfer the ownership of and deliver, but he has the obligation to warrant the thing sold. In connection therewith, the seller impliedly warrants that he has the right to sell the thing at the time when the ownership is to pass, and that the buyer shall from that time have and enjoy the legal and peaceful possession of the thing. There is also an implied warranty that the thing shall be free from any hidden faults or defects, or any charge or encumbrance not declared or known to the buyer (Articles 1458, 1495 and1547, Civil Code).
In your situation, we suggest that you refer first your problem to the written warranty existing in
connection with the sale of the vehicle. The obligations and liabilities of the auto exchange shop, as the seller, even if the vehicle bought is second hand, shall be based upon the written warranty that exists. In the absence thereof, the shop shall remain to be liable under its implied warranty as already mentioned. More particularly, the liability of the shop is clear under Articles 1561 and 1567 of the Civil Code, stating that the seller shall be responsible for warranty against hidden defects which the thing sold may have, should they render it unfit for the use for which it is intended, or should they diminish its fitness for such use to such an extent that, had the buyer been aware thereof, he would not have acquired it or would have given a lower price for it. In such a case, you may elect between withdrawing from the contract and demanding a proportionate reduction of the price, with damage in either case. Thus, you may demand from the shop for the return of the vehicle bought and the refund of the payment made with damages.
source: Manila Times' Column by
Sunday, April 7, 2013
Foreign citizens entitled to own real property via succession
Dear PAO,
I am a 72-year-old widower. I have two children with my second wife and three children with my previous wife. My children from the first marriage are all naturalized foreign citizens and have not acquired dual citizenship yet. They are also
living with their own families in other countries. I plan to make a last will and testament. May I exclude my children from my first marriage in my last will and testament?
Greggy
Dear Greggy,
Children, legitimate or illegitimate, are compulsory heirs of their parents. Thus, they are entitled to receive legitime or that part of the estate which by law is reserved to them (Article 887, Civil Code). As such, a child cannot be excluded in the partition of the estate of his deceased parent even if the said parent dislikes his child, unless the former is deprived of his legitime through disinheritance. The grounds for disinheritance of a child are limited to those mentioned under Article 919 of the Civil Code, to wit: (1) when a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) when a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) when a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) when a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) a refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) maltreatment of the testator by word or deed, by the child or descendant; (7) when a child or descendant leads a dishonorable or disgraceful life; (8) conviction of a crime which carries with it the penalty of civil interdiction.
Based on the foregoing, you cannot exclude your children from your first marriage in your last will and testament if there is no ground for their disinheritance. Being a foreigner or change of citizenship is not a sufficient ground for the denial of their share in the estate because, even if they are foreigners, they are entitled to their legitime and even entitled to hold real estate properties in the Philippines in accordance with Section 7, Article XII of the 1987 Constitution, giving foreigners the right to hold real estate properties if the mode of transfer is through hereditary succession.
source: Manila Times PAO Column of Atty. Persida Acosta
I am a 72-year-old widower. I have two children with my second wife and three children with my previous wife. My children from the first marriage are all naturalized foreign citizens and have not acquired dual citizenship yet. They are also
living with their own families in other countries. I plan to make a last will and testament. May I exclude my children from my first marriage in my last will and testament?
Greggy
Dear Greggy,
Children, legitimate or illegitimate, are compulsory heirs of their parents. Thus, they are entitled to receive legitime or that part of the estate which by law is reserved to them (Article 887, Civil Code). As such, a child cannot be excluded in the partition of the estate of his deceased parent even if the said parent dislikes his child, unless the former is deprived of his legitime through disinheritance. The grounds for disinheritance of a child are limited to those mentioned under Article 919 of the Civil Code, to wit: (1) when a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) when a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) when a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) when a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) a refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) maltreatment of the testator by word or deed, by the child or descendant; (7) when a child or descendant leads a dishonorable or disgraceful life; (8) conviction of a crime which carries with it the penalty of civil interdiction.
Based on the foregoing, you cannot exclude your children from your first marriage in your last will and testament if there is no ground for their disinheritance. Being a foreigner or change of citizenship is not a sufficient ground for the denial of their share in the estate because, even if they are foreigners, they are entitled to their legitime and even entitled to hold real estate properties in the Philippines in accordance with Section 7, Article XII of the 1987 Constitution, giving foreigners the right to hold real estate properties if the mode of transfer is through hereditary succession.
source: Manila Times PAO Column of Atty. Persida Acosta
Friday, April 5, 2013
PD 1529: Implied trust eases transfer of property to real owners
Dear PAO,
My wife and I bought a tract of land through Pag-ibig. Since we were both Overseas Filipino Workers (OFW), I asked my sister-in law to make the purchase in our behalf. Accordingly, the title was named after her. Unfortunately, after 3-4 months thereafter, my sister-in-law passed away because of sickness. The title remains under her name but the original certificate of title is in our possession. We found out from a reliable source that a relative of my sister-in-law is planning to get a certified true copy of the title for the purpose of selling the land. Can that relative sell the property with the use of a certified true copy of the title?
Bert
Dear Bert,
The certificate of title of a land is the best evidence to prove ownership of the named person over a parcel of land described therein. In your case, if we are to examine the owner’s certificate of title in your possession, the owner of the parcel of land described therein is your sister-in-law since she is the person named as the registered owner. As the registered owner she or her heirs in case of her death may sell or convey the same to another person. However, if an implied trust is created between you, your wife and your sister-in-law, the property may be transferred to your name as the real owners thereof. It is provided under Article 1453 of the Civil Code that “when property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another or to the grantor, there is implied trust in favor of the person whose benefit is contemplated”. If you are claiming your right under an implied trust, it is proper to register the said claim by filing a sworn statement of such claim in the Registry of Deeds of the place where the property is registered (Section 68, PD. 1529, otherwise known as the “Property Registration Decree”).
The heirs of your sister-in-law may sell the property on the basis of hereditary right being the successors of the deceased if they are to rely upon the certificate of title. However, the seller cannot register his right thereto without the presentation of the owner’s duplicate of title, which is in your possession. The presentation of the owner’s duplicate of title is necessary in order to register the transactions / dealings voluntarily entered into by the registered owner in accordance with Section 53 of the Property Registration Decree. It is still best if you and your wife could communicate this matter to the heirs of your sister-in-law. If they have no objections to your claim, they may execute a deed of conveyance in your favor in order that a title may be transferred to your name. On the other hand, you have to prove the said claim based on implied trust in court in case the heirs would opposed thereto.
source: Manila Times' Column of Atty
My wife and I bought a tract of land through Pag-ibig. Since we were both Overseas Filipino Workers (OFW), I asked my sister-in law to make the purchase in our behalf. Accordingly, the title was named after her. Unfortunately, after 3-4 months thereafter, my sister-in-law passed away because of sickness. The title remains under her name but the original certificate of title is in our possession. We found out from a reliable source that a relative of my sister-in-law is planning to get a certified true copy of the title for the purpose of selling the land. Can that relative sell the property with the use of a certified true copy of the title?
Bert
Dear Bert,
The certificate of title of a land is the best evidence to prove ownership of the named person over a parcel of land described therein. In your case, if we are to examine the owner’s certificate of title in your possession, the owner of the parcel of land described therein is your sister-in-law since she is the person named as the registered owner. As the registered owner she or her heirs in case of her death may sell or convey the same to another person. However, if an implied trust is created between you, your wife and your sister-in-law, the property may be transferred to your name as the real owners thereof. It is provided under Article 1453 of the Civil Code that “when property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another or to the grantor, there is implied trust in favor of the person whose benefit is contemplated”. If you are claiming your right under an implied trust, it is proper to register the said claim by filing a sworn statement of such claim in the Registry of Deeds of the place where the property is registered (Section 68, PD. 1529, otherwise known as the “Property Registration Decree”).
The heirs of your sister-in-law may sell the property on the basis of hereditary right being the successors of the deceased if they are to rely upon the certificate of title. However, the seller cannot register his right thereto without the presentation of the owner’s duplicate of title, which is in your possession. The presentation of the owner’s duplicate of title is necessary in order to register the transactions / dealings voluntarily entered into by the registered owner in accordance with Section 53 of the Property Registration Decree. It is still best if you and your wife could communicate this matter to the heirs of your sister-in-law. If they have no objections to your claim, they may execute a deed of conveyance in your favor in order that a title may be transferred to your name. On the other hand, you have to prove the said claim based on implied trust in court in case the heirs would opposed thereto.
source: Manila Times' Column of Atty
Subscribe to:
Posts (Atom)