Disinheritance valid when made through a will citing legal cause

Dear PAO,
Our house was built in a property left by my late grandfather.  Recently, my uncle came to our house and demanded that we vacate the property.  He claimed that my father was disinherited by my late grandfather so we do not have any right to the property.  He showed us the last will and testament of my grandfather to prove the disinheritance.  What can we do? Do we not have any right to the property?
Mardy

Dear Mardy,
Disinheritance is not taken lightly in our jurisdiction.  There are stringent rules before a compulsory heir can be stripped of his or her right to inherit, to wit: The disinheritance must be effected through a will wherein a legal cause shall be specified (Art.  916, Civil Code of the Philippines).

There are two important requisites mentioned in this provision of law. First, the disinheritance must be effected through a will.  This means that it should follow the stringent rules on forms and solemnities of a will, either holographic or notarial.  Otherwise, the disinheritance will be void.   Second, there must be a legal cause for disinheritance, which must be real, not imaginary.  In case of children and other descendants, the legal causes are: 1) conviction for the crime of adultery or concubinage with the spouse of the testator, or any other crime carrying the penalty of civil interdiction; 2) having been found guilty of attempting to kill the testator, his or her spouse, descendants or ascendants; 3) making groundless accusation against the testator of a crime punishable by at least six years of imprisonment; 4) refusal to give support without justifiable cause; 5) maltreatment by word or deed; 6) living a dishonorable and disgraceful life; 7) employing fraud, violence, intimidation, or undue influence to induce the testator to make or modify a will (Art. 919 , Civil Code of the Philippines).

Your father may question his disinheritance using these standards as guide.  He may check if the last will and testament of your grandfather conforms with the requirements set by the Civil Code.  He may also verify the cause of the disinheritance. If it is not included in the legal causes provided by law, or if the same be false or fabricated, your father may question his disinheritance.  In such a case, the other heirs of your grandfather have the burden of proving the truth of the cause (Art. 917, Civil Code of the Philippines). Failure on their part to substantiate the alleged cause would render the disinheritance void.

In addition, our Civil Code expressly provides that “a subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made” (Art. 922). Hence, your father may also show that he and your grandfather have already reconciled to question the disinheritance if this be the case.

In any event, it is not true that your family does not have any right to the property.  Even if we consider that your father was legally disinherited by your grandfather, your family still has a right on the property he left.  The law clearly states that “the children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime” (Art. 923, Civil Code of the Philippines). Thus, the rule on representation will apply. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited (Art.
970, Civil Code of the Philippines). This means that you and your siblings, if any, will represent your father and receive his share from the estate left by your grandfather.

We hope you find the foregoing in order. Please bear in mind that the opinion above is based on the facts you presented and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Negligent persons who cause harm liable for damages

Dear PAO,
As I was passing by a salon last week, I was shocked to have been drenched in what seemed to me was foul-smelling water. One of the hairdressers of that salon was cleaning up and threw a bucket of water outside their window without even checking if there were people staying or passing by. I was so outraged because I was then on my way to work. I demanded to talk to the salon owner, but they refused to heed my demand. So, I decided to file a blotter to the nearest police station to document what happened to me. Upon reaching my house, I started noticing that my scalp was itching. The next day, hair strands started to fall off from my head, and now I have a small patch in my scalp for the lost hair.

Can I sue the hairdresser? Can I also sue the salon owner? I hope you can advice me.
Ms. Depressed

Dear Ms. Depressed,
Every person must act diligently so as to avoid injury to another person or another’s property. A person who causes damage to another or to the property of the latter may be held liable thereto to the extent as may be provided under the terms and stipulations agreed upon by them, should a contract exist between the parties, or in consonance with law, if there is no contractual relationship between them.

Accordingly, a person who throws a bucket of water outside his or her window may be held liable if he was negligent in his actions and such negligence caused damage or injury to a bystander or a passerby, similar to what happened to you. This is pursuant to Article 2176 of the New Civil Code of the Philippines, which provides: “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict x x x”

The liability does not only extend to the perpetrator, but also to those responsible for them, as long as the former is performing his or her assigned tasks. As provided for under Article 2180 of the said law: “The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their tasks, even though the former are not engaged in any business or industry. x x x”

However, it is still essential for you to establish that the injury you claim to have sustained, particularly the itching of your scalp as well as the small patch which was brought about by the falling off of your hair, was predominantly the result of the negligent act of the hairdresser. If you fail, however, to establish this or if it is later on shown that the injury you sustained was by reason of your own negligence, the award of damages may not prosper. According to Article 2179 of the New Civil Code of the Philippines: “When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.”

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Citing a debtor for indirect contempt goes beyond non-payment of debt

Dear PAO,
A case for non-payment of loan was filed against my father. He never bothered me about it because, for him, it was his personal obligation to settle. I was just surprised when he told me that there was an order to imprison him. He mentioned something about indirect contempt. I thought nobody can be imprisoned due to non-payment of debt, or as in his case, non-payment of loan. How come there is an order against him in that manner? Please enlighten me because I am really worried for him.
Arianne

Dear Arianne,
You are correct in saying that no person can be imprisoned merely by reason of non-payment of debt. This guarantee is expressly provided for under Section 20, Article III of the 1987 Philippine Constitution which states: “No person shall be imprisoned for debt or non-payment of poll tax.”

In the situation that you have presented, we cannot conclude with certainty whether the order issued against your father was precisely because of his failure to pay his loan obligation. If it was, then you may question that order of the court.

You should consider, however, that the order may have been for some other reason. As you have mentioned in your letter, your father raised his concern regarding an indirect contempt. This may very well be the reason why the court issued such order against him. Indirect contempt is defined by and punished under Section 3, Rule 71 of the Revised Rules of Court which provides that:

“After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

(a)    Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b)    Disobedience of or resistance to a lawful writ, process, order or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c)    Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule;

(d)    Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice;

(e)    Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f)    Failure to obey a subpoena duly served;

(g)    The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.”

If your father was adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be penalized with fine not exceeding Thirty Thousand Pesos (P30,000.00) or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of indirect contempt committed against a lower court, he may be punished with fine not exceeding Five Thousand Pesos (P5,000.00) or imprisonment not exceeding one (1) month, or both. If he violated a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the injured party of the property involved or such amount as may be alleged and proved (Section 7, Rule 71, Revised Rules of Court).

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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Joint wills prohibited by law

Dear PAO,
My wife and I are already of old age and in preparation for our eventual demise, we deem it proper to address this inevitable event by preparing our last will and testament. Because of this, my wife and I made our last will together detailing the manner of distribution of our property to our children. Our last will was made on one lengthy document incorporating both our wishes in the handling and distribution of our pieces of property. We both voluntarily signed and witnessed together. When we were about to have the document notarized, however, we were advised that we can’t have our last will together in the same document. I want to confirm if this is true and if there are any legal bases for this disallowance in executing a shared last will and testament. We appreciate your legal opinion to clarify this matter.
Conor

Dear Conor,
While you and your wife may prepare your last will and testament, it is important to know that the law provides for certain limitations and specifications in the manner of execution of such document. Based on your narration, the will that you and your wife prepared is considered to be a joint will. This kind of will is called a joint will since it contains the wills of more than one individual in one document. The Civil Code of the Philippines has this to say about the preparation of this kind of will:

“Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.”

As seen from this cited law, there is a clear prohibition against the making of a joint will. Considering this prohibition, joint wills are void and therefore shall have no legal effect in the transfer of your estate to your designated successors.

As opined by the respected succession law expert Prof. Ruben Balane, and as supported by the Supreme Court case, Dacanay v. Florendo, 87 Phil. 324 (1950), joint wills are considered to be against public policy because they limit the mode of revocation of a will since one of the testators cannot destroy the will without also revoking the will of the other testator; they compromise the nature of secrecy of a will; they present danger of undue influence between testators; and there may be a danger of a testator tempted to kill the other testator (Ruben F. Balane, Jotting and Jurisprudence in Civil Law Succession, 2006).

The prohibition against joint wills is further emphasized in another provision of the Civil Code of the Philippines which states that a joint will executed by Filipinos even in a foreign country shall still not be valid in our country even if it is authorized by the laws of the foreign country where it was executed (Art. 819, Civil Code of the Philippines).

To reiterate simply, joint wills are prohibited by law. Thus, in order to ensure that the transfer of your estate can be legally allowed and executed in accordance with your plans, it will be in your and your wife’s best interest to prepare your own separate wills in observance of provisions of the law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Annotation of levy on title removable after 10-year prescriptive period

Dear PAO,
I lost in a case way back in 1990 and my property in the province was levied to satisfy the judgment of the court.  The levy was annotated on my title. For unknown reasons, however, my property was not auctioned off or sold. Last month, I received a letter from the person who won the case demanding me to pay my outstanding obligation or he will proceed with auctioning off  my property.  May I ask if he can still enforce the levy?  What can I do in this situation?
Donald

Dear Donald,
A court judgment may only be executed within the period provided by the law and rules.  After the lapse of such time, the decision can no longer be executed.

According to the rules, a party who obtained a favorable decision has the right to have the decision executed by filing a motion with the court that rendered the same within five (5) years from the time the decision became final and executory. After such time, the concerned party must first file an action to revive judgment before he can have the same executed (Section 6, Rule 39, Rules of Court). This action must be filed within ten (10) years from the time the decision was rendered in consonance with the provision of the law stating that an action predicated or based on a judgment must be brought within ten years from the time the right of action accrues (Article 1144, Civil Code).

This ten-year prescriptive period also applies to levy of property. As mentioned by the Supreme Court in the case of Jalandoni vs. PNB, a valid execution issued and levy made within the five-year period after entry of the judgment may be enforced by sale of the property levied upon thereafter, provided the sale is made within ten years after the entry of the judgment (108 SCRA 102). Thus, the party who obtained a favorable decision must proceed with the auction and sale of the levied property within the period provided to execute the decision. Otherwise, he or she loses her right to do so.

Moreover, the court declared in the same case that an expired levy that was annotated on the title becomes a cloud on the title.  As a cloud, the owner of the property, or his or her heirs is entitled to have the same removed. As provided by law, whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to the said title, an action may be brought to remove such cloud or to quiet the title (Art. 476, Civil Code). The action to remove the cloud may be filed by any person who has an interest in the property before the appropriate Regional Trial Court in accordance with Rule 63 of the Rules of Court.

Applied in your case, considering that more than twenty (20) years has lapsed since your property was levied, it can be safely assumed that the same has expired and is no longer enforceable.  It has become a cloud on your title.  As the owner of the levied property, you may file a petition in court to remove the annotation of the levy on your title.

We hope that we were able to enlighten you on the matter. 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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Widow can conditionally donate house, lot to niece

Dear PAO,
I am already old, a widow and have no children. My niece is my only companion in life and the one who is taking care of me. Though still a minor at 16 years of age, I am wondering if I can donate my only piece of property, a house and lot, to her as a gesture of repaying the good deeds she has done for me. If ever, is this donation valid? Can I put a provision in the donation that as long as I am still alive, I will be the one who will use the house? 
Sioning

Dear Sioning,
Your desire to bestow upon your niece the house and lot mentioned in your letter without asking for anything in return is a donation. As defined, donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, New Civil Code of the Philippines).

Since your niece is still a minor, she still has no capacity to enter into a contract. Nonetheless, her legal guardian may represent her in all her transactions. For instance, in a Deed of Donation, since she cannot accept as yet the donation, she may be represented by her parents or legal guardian in accepting the same. This is clearly provided under Article 741 of the New Civil Code of the Philippines, to wit:

“Art. 741. Minors and others who cannot enter into a contract may become donees but acceptance shall be done through their parents or legal representatives.”

Thus, even if your niece is still a minor, you may donate to her what you think is appropriate to reward her for taking good care of you, such as the house and lot you mentioned in your letter. Also, since it appears that this house and lot is the only piece of property you own, you may reserve the use thereof exclusively to yourself even if the ownership is already transferred to your niece by way of donation. Article 750 of the New Civil Code of the Philippines gives light to this, to wit:

“Art. 750. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Law allows use of pen names

Dear PAO,
I would like to seek advice on the legal use of pen names. I am a children’s book writer and I have been using a pen name for the past couple of years. I have heard that there is a law penalizing the usurpation and improper use of one’s name. I want to know whether I have violated it considering my use of a pen name. I hope you can give me advice on this matter. Thank you and God bless.
Edson

Dear Edson,
The use of pen names is not an uncommon practice and it is even recognized and allowed under Philippine laws but subject to specific limitations. According to the Civil Code of the Philippines:

“Article 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.”

As this law expressly provides, use of pen names is legally permitted under Philippine laws. Thus, you may use a pen name for your work as a writer as long as it is done in good faith and with no harm to other persons. Furthermore, the cited provision provides that the pen name you are using is protected by law and cannot be usurped considering that you have a vested right in its use (Melencio Sta Maria, Persons And Family Relations Law, 2010).

With regard to your concern on the improper use of one’s name in relation to your use of a pen name, you have nothing to worry about since the use of a pen name is generally not considered improper as already explained above. Likewise, the law penalizing usurpation of a name does not apply to your case since use of a pen name is not a usurpation of a name unless you are using the name of another person as your pen name. Thus, while you may use a pen name as a writer, make sure that the pen name you are using is not the name of an existing person.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

No crime committed by custodian’s sibling over ‘stolen’ certificate of title

Dear PAO,
My parents are gone and being the oldest child, my siblings agreed that I will be the custodian of all certificates of title of their pieces of property. One of our siblings, however, who is so greedy, got one of the certificates without my permission during the celebration of the death anniversary of our father in my house and now he is refusing to return it. I want to pursue a case against him. What is the proper case to file? Is it theft or robbery?
Alex

Dear Alex,
The crimes of theft and robbery are both punishable under Crimes Against Property of Title XX of the Revised Penal Code (RPC). Both crimes pertain to the taking of personal property of another without the latter’s consent and with intent to gain. If the taking was committed without violence against, or intimidation of persons or force upon things, the crime committed is theft pursuant to Article 308 of the RPC. On the other hand, if the taking was committed with violence against, or intimidation of persons or force upon things, the proper crime to be charged is robbery pursuant to Article 293 of the same law.

The crimes of theft and robbery, however, are not the proper cases that may be filed against your sibling who, according to you, had got one of the certificates of title pertaining to the pieces of property of your deceased parents without your permission. One of the elements of theft and robbery is the taking of personal property of another and this essential element for both crimes are lacking in your case. It is important to note that the pieces of property covered by the certificates of title in your possession belong to your deceased parents. As such, these are co-owned by you and your siblings. The co-ownership of these pieces of property is based on your right as successor or heir of your parents. Since these pieces of property have not yet been divided, you and your siblings have the equal right over each of the pieces of property. Thus, being a co-owner of what were left by your parents, you cannot file a case either for theft or robbery against the sibling who allegedly got one of the certificates of titles in your care.

We suggest that you file a case for partition in court instead. This case for partition shall have the effect of dividing all the pieces of property of your parents to the latter’s heirs thereby preventing incidents like what happened during the commemoration of the death anniversary of your father. Nevertheless, you may try to have a settlement on your own, wherein you may agree by yourselves the division of these pieces of property through the execution of a deed of extra-judicial settlement.

We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

source:  Manila Times

The crime of concubinage

Dear PAO,
My husband is working in Metro Manila and comes home with us in Davao once a month. There’s a rumor that my husband is cohabiting with another woman while he is away for work so I investigated the matter and found it to be true. What case can I file against my husband?
BT

Dear BT,
The act of your husband in cohabiting with another woman constitutes the crime of concubinage which is defined and penalized under Article 334 of the Revised Penal Code (RPC), to wit:

“Art. 334. Concubinage.—Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.”

The crime of concubinage is considered a private crime which may only be prosecuted by the offended spouse. However, the offended party shall not be allowed to file a complaint for concubinage without including both the guilty parties, if they are both alive, nor, in any case, if she shall have consented or pardoned the offenders (Article 344, RPC).

Hence, being the offended spouse, you may file a complaint against your husband and his other woman before the Office of the Prosecutor of the place where they are cohabiting with each other. To successfully prosecute them of the crime of concubinage, you need to prove the following elements: 1) you and your husband are married; 2) he committed any of the following acts: a) keeping a mistress in the conjugal dwelling; b) having sexual intercourse under scandalous circumstances with a woman not his wife; c) cohabiting with her in any other place; 3) as regards the woman, she must know your husband to be married (Luis B. Reyes, The Revised Penal Code (Book Two), page 848).

The Public Attorney’s Office (PAO) provides free legal assistance to qualified indigent clients in filing of criminal complaints before the Office of the Prosecutor. To be able to assist you, you need to go to our district office of the place where your husband is cohabiting with another woman. Our district offices are usually located at city or municipal halls, justice halls, provincial halls or other buildings near the aforementioned places.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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Grounds for ejecting lessee of rented condo unit

Dear PAO,
I am currently renting a condominium unit in Taguig City (Metro Manila) for P8,000 a month. The contract is to expire in one year. Six months after I started occupying the unit, the owner told me to vacate as she was selling it. Of course I did not leave. Can the buyer evict me after the sale?
Rhenz

Dear Rhenz,
The contract of lease you entered into with the condominium unit owner is covered by Republic Act (RA) 9653 or the Rent Control Act of 2009. Section 9 thereof provides the grounds for ejectment, to wit:

“SEC. 9. Grounds for Judicial Ejectment. – Ejectment shall be allowed on the following grounds:
(a) Assignment of lease or subleasing of residential units in whole or in part, including the acceptance of boarders or bedspacers, without the written consent of the owner/lessor;

(b) Arrears in payment of rent for a total of three (3) months: Provided, That in the case of refusal by the lessor to accept payment of the rent agreed upon, the lessee may either deposit, by way of consignation, the amount in court, or with the city or municipal treasurer, as the case may be, or barangay chairman, or in a bank in the name of and with notice to the lessor, within one (1) month after the refusal of the lessor to accept payment.

The lessee shall thereafter deposit the rent within ten (10) days of every current month. Failure to deposit the rent for three (3) months shall constitute a ground for ejectment.

The lessor, upon authority of the court in case of consignation or upon joint affidavit by him and the lessee to be submitted to the city or municipal treasurer or barangay chairman and to the bank where deposit was made, shall be allowed to withdraw the deposits;

(c) Legitimate need of the owner/lessor to repossess his or her property for his or her own use or for the use of any immediate member of his or her family as a residential unit: Provided, however, That the lease for a definite period has expired: Provided, further, that the lessor has given the lessee the formal notice three (3) months in advance of the lessor’s intention to repossess the property and: Provided, finally, that the owner/lessor is prohibited from leasing the residential unit or allowing its use by a third party for a period of at least (1) year from the time of repossession;

(d) Need of the lessor to make necessary repairs of the leased premises which is the subject of an existing order of condemnation by appropriate authorities concerned in order to make the said premises safe and habitable: Provided, That after said repair, the lessee ejected shall have the first preference to lease the same premises: Provided, however, That the new rent shall be reasonably commensurate with the expenses incurred for the repair of the said residential unit and: Provided, finally, That if the residential unit is condemned or completely demolished, the lease of the new building will no longer be subject to the aforementioned first preference rule in this subsection; and
(e) Expiration of the period of the lease contract.”

Clearly, the sale of the unit being rented is not a ground for evicting a tenant, even if the sale is consummated. The buyer should honor the contract as well as its terms and conditions. Should there exist a ground or grounds for ejectment after the sale, it is the right of the buyer to evict the tenant.
Also, as expressly provided by the above-mentioned law, no lessor shall be evicted by reason of the sale of the leased unit. This is particularly provided by Section 10 of the said law:

“SEC. 10. Prohibition Against Ejectment by Reason of Sale or Mortgage. – No lessor or his successor-in-interest shall be entitled to eject the lessee upon the ground that the leased premises have been sold or mortgaged to a third person regardless of whether the lease or mortgage is registered or not.”

Thus, if the only reason of your lessor to evict you from the premises you are renting is the sale of the said unit, then this will not prosper as this is contrary to law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to guide you with our opinion on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


source:  Manila Times

Rent control law does not cover commercial space

Dear PAO,
I am leasing a commercial space for P5,000 a month. My tenant who is a barbershop owner is insisting that I cannot evict him as yet because he is paying rent. He claims that under the Rent Control Law, the lessor cannot eject the lessee unless he fails to pay rent for at least three months. Our contract of lease has already expired. Can I force my lessor to leave because I am having a difficult time dealing with him? Besides, I don’t want to extend our contract anymore.    
Ruben

Dear Ruben,
The contract of lease you entered into with your tenant is not covered by the Rent Control Law. Republic Act (R.A.) 9653 or the Rent Control Act of 2009, covers only residential units. Section 5 thereof provides:

“Section 5. Coverage of this Act. – All residential units in the National Capital Region and other highly urbanized cities, the total monthly rent for each of which ranges from One peso (P1.00) to Ten thousand pesos (P10,000.00) and all residential units in all other areas, the total monthly rent for each of which ranges from One peso (P1.00) to Five thousand pesos (P5,000.00) as of the effectivity date of this Act shall be covered, without prejudice to existing contracts.”

Clearly, the commercial space you are leasing to your tenant is not covered by the abovementioned law. It is the provisions of the New Civil Code of the Philippines that govern it. The code provides that a lessor may eject a lessee under the following circumstances:

“Art. 1673. The lessor may judicially eject the lessee for any of the following causes:

(1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired;

(2) Lack of payment of the price stipulated;

(3) Violation of any of the conditions agreed upon in the contract;

(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof.

xxx”

Since according to you the contract of lease has expired, you may compel your lessee to vacate the commercial space you are leasing to him. However, if you let him stay for fifteen days more after the expiration of the contract, an implied new lease is created (Article 1670, New Civil Code of the Philippines).

The period of the new lease is not, however, the same with the stipulated period in the original contract agreed upon, but in accordance with Article 1682 of the New Civil Code of the Philippines, to wit:

“Art. 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to guide you with our opinion on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Court of Appeals rules for Globe in Isabela ‘tower fees’ case

THE COURT of Appeals (CA) has ruled in favor of Globe Telecom, Inc. after the latter contested a local ordinance enacted by Santiago City, Isabela imposing “tower fees” on its cellular sites.

The appellate court’s 11^th division, in a 19-page decision promulgated on May 30, nullified Santiago City’s Ordinance No. 6THCC-53 which ordered telecommunications companies to pay an annual P200,000 in “tower fees” as part of the city’s income generating schemes.

The CA decision reversed a Santiago City regional trial court (RTC) decision declaring the ordinance as valid and ordering Globe to pay P5.92 million in tower fees for its seven cell sites in the city.

“Evidently, there is no reasonable relation between defendant-appellee’s imposition of the subject tower fees and the promotion of health, morals, good order, safety or the general welfare of the people,” Associate Justice Vicente S.E. Veloso wrote.

Santiago City’s local government, in 2008, issued the resolution as part of its mandate under the Local Government Code’s General Welfare Clause.

The Santiago City RTC, in a May 10, 2012 decision, found that the ordinance was consistent with a local government’s authority to regulate companies operating within its jurisdiction.

However, the appellate court said the ordinance failed to adequately justify its regulation and restraint of property rights, and called the fee “patently oppressive, confiscatory and prohibitive.”

Associate Justices Jane Aurora C. Lantion and Nina G. Antonio-Valenzuela concurred with the decision. -- Mikhail Franz E. Flores

source:  Businessworld

Hurdle to Ayala project in Negros cleared

BACOLOD CITY -- Another obstacle to the proposed P6-billion property development project of Ayala Land, Inc. here was cleared after the Land Registration Authority (LRA) upheld the denial of the adverse claim of SM Prime Holdings, Inc. to the property.

The LRA ruling came about two months after the Regional Trial Court (RTC) here junked SM Prime’s petition to annul the negotiated sale and lease of the 7.7-hectare provincial government property to Ayala.

“This is not the last obstacle yet as SM has appealed the denial of its petition,” said Negros Occidental Governor Alfredo G. Marañon, Jr.

He said, however, that Ayala has started conducting soil tests at the site, which is envisioned to be a master-planned mixed-use complex.

The provincial government and Ayala signed, shortly after a negotiated bidding in July 2011, contracts allowing Ayala to purchase from the provincial government 3.6587 hectares (ha) of land worth P750 million and lease 4.0481 ha at P2.95 million a month.

The contracts were approved by the Commission on Audit in September 2012.

SM Prime, insisting that it won the July 7, 2011 bidding that was declared a failure by the provincial government, sued the province and asked to be awarded the contracts.

Last Jan. 23, Bacolod RTC Judge Estefanio Libutan, Jr. denied SM Prime’s petition.

In his decision, LRA Administrator Eulalio C. Diaz III explained that “the exclusive right to purchase or lease the property subject to bidding is not a claim on the title, but at least, an assailment of the bid proceeding” and has nothing to do with the title itself.

On March 26, 2012, the Bacolod registrar of deeds denied SM Prime’s application to register a lis pendens on the ground that the case involving the property is a special civil action and does not fall within the coverage of Section 76 of Presidential Decree 1529, or the Property Registration Decree. -- APN

source: Businessworld  

Property owner has right to enjoy and dispose of property

Dear PAO,
For almost 15 years, my aunt allowed our family to stay in her house. However, my aunt now wants to evict us out of the house. Can she validly do this?
Mr. J.

Dear Mr. J,
Under the law, the owner of a property shall have the right to enjoy and dispose of a thing, without limitations other than those established by law. He shall also have a right of action against the holder and possessor of the property that he owns in order to recover it (Article 427, Civil Code of the Philippines).

Being the owner, your aunt unquestionably has the right of possession over her house. The fact that she allowed you and your family to stay there for a very long time shall not divest her of her rights over her property. Since your right to stay at the house of your aunt is dependent only on her consent or tolerance, she may validly demand from you to vacate her house if she wants to. If you and your family refuse to vacate her house despite demand, your aunt shall have the right to file an action against you for unlawful detainer pursuant to Section 1, Rule 70, Rules of Court, to wit:

Rule 70 Forcible entry and unlawful detainer
Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.

If after hearing, the court finds that the allegations in the complaint for unlawful detainer are true, it shall render a judgment in favor of the plaintiff for the restitution of the house, the sum justly due as reasonable compensation for the use and occupation of the premises, attorney’s fees and costs (Section 17, Rule 70, Rules of Court).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Unalienable land must remain unalienable!

Here is a question that Filipinos ought to ask themselves. When a land is declared unalienable (meaning, it is beyond the commerce of man according to the Philippine Constitution) can a Supreme Court decision declared such a land as alienable even if a great part of it is under the sea? This is the question that the people of the Municipality of Liloan 18 kilometers North of Cebu City are just beginning to ask questions, why was 92 hectares of the 500 hectare Silot Bay awarded to the family of Labor Leader Democrito Mendoza and titular head of the Associated Labor Unions (ALU)?

Perhaps a simpler question to ask is… can an ordinary man on the street a.k.a. Juan dela Cruz secure a permit from the Department of Environment and Natural Resources (DENR) and have it titled even if a great portion of the land is under water? Of course not! Even squatters who occupy land that doesn’t belong to them may occupy it…but never own it.

This is the crux of the issue… where on March 28, 2007, the Supreme Court granted ownership of a large portion of Silot Bay to the Mendoza family even if they could not occupy it because believe it or not…it was part of the tidal basin of Silot Bay and therefore unalienable. Apparently the people of Liloan Town and its Mayor Duke Frasco are up in arms about this lopsided SC Ruling granted clearly to very powerful people.

In that March 2007 decision the SC said in part, “If the titles of innocent buyers were recognized and protected in the afore-mentioned circumstances, even when the original title to the property was obtained through fraud, then the titles of the purchasers in good faith and for value of the fishpond areas in the present case better deserve our recognition and protection.”

At this point, I dare all the Supreme Court Justices who signed that order to come to Cebu City and look and see for themselves portion of Silot Bay that someone had allegedly or fraudulently sold to the Mendoza Family for the simple reason that the sea is unalienable and could never be titled. Remember the scam when someone sold the Eiffel Tower or the Brooklyn Bridge? If we based this SC ruling… then the Brooklyn Bridge would have belonged to a private individual!

In my book, if it was an ordinary man who was gypped in that allege fraudulent sale… it would have been a simple case of “caveat emptor” or Buyers Beware! But in this country where corruption is the rule rather than the exception… I dare say that the SC decision in the Silot Bay case was made “under duress” or “Sub Coercitione” after all the Associated Labor Union (ALU) is such a powerful organization and its officials can get anything it wants under any government.

 

Finally after six long years, the people of Liloan have awakened because the Mendoza Family started putting fences even if portion of this land is under the sea. This prompted the Municipal Council of Liloan to approve a resolution seeking a review of the Silot Bay case. Meanwhile Mayor Frasco has issued a notice of illegal construction in the setting up of the fence.

But more importantly for the people of Liloan… and yes for the Filipino people as a whole… that when it comes to titling of properties… anything that is under the sea should always remain unalienable… even if the Supreme Court says otherwise. So let’s see if the SC would make this review and give justice where justice is really due to the people of Liloan.



SHOOTING STRAIGHT By Bobit S. Avila (The Philippine Star) | Updated February 11, 2014