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

New will must contain clause that revokes previous will

Dear PAO,

I made my own last will and testament two years ago which was already notarized and given to a trusted family member. Since then, a lot has changed including my relationship with my family and the person to whom I entrusted my will died already. Because of this, I’d like to make a new last will that substantially changes the content of my old will. I’d like to know how I can make a new last will and testament that will replace the first one I made. I hope you can help me. Thanks!

Glory

Dear Glory,

The Philippine law on succession specifically provides for the manner of changing a last will and testament and replacing it with a new one. The New Civil Code of the Philippines provides that:
“Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.”

It can be seen from the above cited law that a last will and testament can be revoked either by implication of law; by physical destruction of the will with intent to revoke it; or by execution of a new will. In your case, the last one applies since you mentioned that you wish to make a new will wherein such act of making a subsequent will can have the effect of revoking your old will and rendering it ineffective.

However, mere preparation of a new will does not automatically render the old will inoperative. In order to have a valid revocation of a will by a subsequent will, it is important that: the subsequent will complies with the formal requirements in the execution of a will; the maker of the will possesses testamentary capacity; and the subsequent will must either contain express revocatory clause or is incompatible with the prior will; and that the subsequent will be also probated. (Ruben F. Balane, Jottings and Jurisprudence in Civil Law Succession, 2006)

In other words, to effectively replace the old will with a new will, the recent will must either expressly mention the intention to replace the old will, or contain provision which is incompatible with the old will as this signifies the intention to revoke the old will. This, in addition to the requirement that the last will follows the formalities set by law and be probated by Court, is what you must do to replace your old will with a new one.

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

source:  Manila Times

The statute of frauds: More than just a handshake

WE LIVE in a society where businesses thrive and flourish based on so-called gentlemen’s agreements and adhere to a close-knit paradigm of intrapersonal relationships. Most businessmen today fail to recognize the value of a written and signed contract. While not all contracts need to be in writing and subscribed by or signed by the parties to be enforceable, the Statute of Frauds, found in paragraph 2 of Article 1403 of our Civil Code, enumerates six classes of statutes which describe transactions required by law to be in writing.

The Statute of Frauds finds its roots in the Parliament of England in the 1600s. It was then adopted in our Civil Code. The rationale behind the Statute of Frauds is to prevent fraud and perjury in the enforcement of obligations. Without a written contract, parties will depend on their sheer memory or that of their witnesses. Without any palpable evidence of the intention of the parties when the contract is executed, there is a high probability of fraud.

The first statute pertains to an agreement whose terms are not to be performed within a year from its making. In Viewmaster Construction Corp. v. Roxas (G.R. No. 133576, July 13, 2000), the Supreme Court found that a verbal agreement to act as guarantor for a loan -- only after the borrower sells 50% of his shareholdings in a corporation; and undertake a joint venture over two real estate properties -- was clear to be performed more than a year from the making thereof. As the circumstances behind the agreement fell squarely within the coverage of this statute, the verbal agreement was declared to be unenforceable.

The second statute applies to a special promise to answer for the debt, default or miscarriage of another. It must be noted however that for this statute to apply, the promise must be merely collateral. Thus, if the promisor becomes thereby primarily liable for the payment of the debt, the Supreme Court held in Reisse v. Jemije (G.R. No. 5447, March 1, 1910) that the transaction need not be made in writing to be enforceable.

The third statute involves transactions made in consideration of marriage. To clarify, this statute does not cover instances where there is a breach of a mutual promise to marry. Consequently, a groom may sue his bride for damages based on a verbal promise (Cabague v. Auxilio, G.R. No. 5028, Nov. 26, 1952). What the statute contemplates is a promise by third persons to one of the parties contemplating the marriage. In the case of Domalagan v. Bolifer (G.R. No. 8166, Feb. 8, 1916), the Supreme Court held that a father who verbally agreed and gave money to his son’s fiancé cannot seek the return thereof because the agreement was not evidenced by a note or memorandum.

The fourth statute relates to sale of personal property for a price not less than P500. While this amount may be considered unsubstantial at this age and time, the value of P500 still controls, since there has been no amendment to this provision of law.

The fifth statute pertains to an agreement for a lease longer than one year. Consequently, a tenant cannot demand for the execution of a supplemental contract of lease for a period longer than of one year based on the landlord’s verbal promise.

The statute also applies to transactions involving the sale of real property or an interest therein. However, where part of the purchase price in an oral contract of sale of real estate had been paid, said partial performance takes the transaction out of the coverage of the statute. This statute only applies to interests involving a perfected contract of sale.

Lastly, the sixth statute applies to representations made to the credit of a third person. Thus, as a general rule, a representation made by a corporate officer to bind a corporation to a verbal agreement may be impugned for being unenforceable if such was not made in writing. However, such objections must be timely made and no benefit must have been derived by the corporation from the said transaction.

If the parties fail to reduce in writing their agreement, such a defect may nevertheless be ratified. Also, partial performance of any of the obligations in the agreement will no longer make it susceptible to being challenged under the Statute of Frauds.

In conclusion, knowing which transactions are covered by the Statute of Frauds is relevant to either ensure the enforceability of contractual obligations or challenge any obligation or liability not agreed upon. Clearly, the failure to present a written contract may have far reaching consequences as no evidence of the transaction will be admitted in court, unless the party enforcing presents a note or memorandum which is duly subscribed by the party obligated. In either case, it is safer to have a written contract, note or memorandum which clearly defines the terms of the obligation -- especially since, there may be instances when a handshake may not be enough.

(The author is an Associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. She can be contacted at 830-8000 or jcalegre@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes and not offered as and does not constitute legal advice or legal opinion.)

source:  Businessworld