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