campomanes

(LILIBETH CAMPOMANES)

 [G.R. No. 172804, January 24, 2011]

VILLANUEVA,  VS. BRANOCO.

The Facts

Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs,^[3] sued respondents, spouses Froilan and Leonila Branoco (respondents), in the Regional Trial Court of Naval, Biliran (trial court) to recover a 3,492 square-meter parcel of land in Amambajag, Culaba, Leyte (Property) and collect damages. Petitioner claimed ownership over the Property through purchase in July 1971 from Casimiro Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner declared the Property in his name for tax purposes soon after acquiring it.

 Respondents  claimed ownership over the Property through purchase in July 1983 from Eufracia Rodriguez (Rodriguez) to whom Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed), signed at the bottom by the parties and the two  (2) witnesses,  stated therein “  I , ALVEGIA RODRIGO xxxx  by reason of poverty which I suffered while our children were still young; and because my husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient as she was to all the works in our house, and because of the love and affection which I feel [for] her,  I have one parcel of land located at Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land   stated  above.  I already devise in favor of EUFRACIA RODRIGUEZ since May 21, 1962, her heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor, but will be inherited by the heirs of EUFRACIA RODRIGUEZ;

      That I EUFRACIA RODRIGUEZ, hereby accept the land above described from Inay Alvegia Rodrigo and I am much grateful to her and praying further for a longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime’’

. It is now in the possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be vested on her upon my demise.’’

 ISSSUE : 

                  1.  Whether or not  the sale  of Vere from Rodrigo void.

                  2.   Whether or not the donation is inter vivos or mortis causa.

                  3.  Whether or not the Deed is a donation or a will or a devise.

Supreme Court Ruled:

 Rodrigo passed naked title to Rodriguez under a perfected donation inter vivos.

 First.

 Rodrigo stipulated that "if the herein Donee predeceases me, the [Property] will not be reverted to the Donor, but will be inherited by the heirs of x x x Rodriguez," signaling the irrevocability of the passage of title to Rodriguez's estate, waiving Rodrigo's right to reclaim title. This transfer of title was perfected the moment Rodrigo learned of Rodriguez's acceptance of the disposition which, being reflected in the Deed, took place on the day of its execution on 3 May 1965. Rodrigo's acceptance of the transfer underscores its essence as a gift in presenti, not in futuro, as only donations inter vivos need acceptance by the recipient.^[. Rodrigo wished to retain full title over the Property, she could have easily stipulated, as the testator did in another case, that "the donor, may transfer, sell, or encumber to any person or entity the properties here donated x x x"^] or used words to that effect. Instead, Rodrigo expressly waived title over the Property in case Rodriguez predeceases her.

 Petitoners  contending it is a fideicommissary substitution clause (for the non-reversion stipulation).  The question of the Deed's juridical nature, whether it is a will or a donation,  controversy ;  by treating the clause in question as mandating fideicommissary substitution, a mode of testamentary disposition by which the first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. The  petitioner assumes that the Deed is a will. Neither the Deed's text nor the import of the contested clause .

.Second.

What Rodrigo reserved for herself was only the beneficial title to the Property, evident from Rodriguez's undertaking to "give one [half] x x x of the produce of the land to Apoy Alve during her lifetime ;, the Deed's stipulation that "the ownership shall be vested on [Rodriguez] upon my demise," taking into account the non-reversion clause, could only refer to Rodrigo's beneficial title.  ; the donor, while "b[inding] herself to answer to the [donor] and her heirs x x x that none shall question or disturb [the donee's] right," also stipulated that the donation "does not pass title to [the donee] during my lifetime; but when I die, [the donee] shall be the true owner" of the donated parcels of land. ; the disposition as a gift inter vivos,

Taking the deed x x x as a whole, x x x x it is noted that in the same deed [the donor] guaranteed to [the donee] and her heirs and successors, the right to said property thus conferred. From the moment [the donor] guaranteed the right granted by her to [the donee] to the two parcels of land by virtue of the deed of gift, she surrendered such right; otherwise there would be no need to guarantee said right. Therefore, when [the donor] used the words upon which the appellants base their contention that the gift in question is a donation mortis causa [that the gift "does not pass title during my lifetime; but when I die, she shall be the true owner of the two aforementioned parcels"] the donor meant nothing else than that she reserved of herself the possession and usufruct of said two parcels of land until her death, at which time the donee would be able to dispose of them freely.

 Rodrigo still retained full ownership over the Property, it was unnecessary for her to reserve partial usufructuary right over it.

Third.

The existence of consideration other than the donor's death, such as the donor's love and affection to the donee and the services the latter rendered, while also true of devises, nevertheless "corroborates the express irrevocability of x x x [inter vivos] transfers.".

. Dispositions bearing contradictory stipulations    (e.g. "the ownership shall be vested on [Rodriguez] upon my demise" and "devise").   are interpreted wholistically, to give effect to the donor's intent.;  "the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is `to take effect at the death of the donor' are not controlling criteria [but] x x x are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor."the nature of dispositions are resolved to favor inter vivos transfers "to avoid uncertainty as to the ownership of the property subject of the deed."     ^]

Nor can petitioner capitalize on Rodrigo's post-donation transfer of the Property to Vere as proof of her retention of ownership. If such were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of passing ownership. The interest of settled property dispositions counsels against licensing such practice.^]

Having irrevocably transferred naked title over the Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the donation nor dispose of the said property in favor of another." Thus, Rodrigo's post-donation sale of the Property vested no title to Vere. As Vere's successor-in-interest, petitioner acquired no better right than him. On the other hand, respondents bought the Property from Rodriguez, thus acquiring the latter's title which they may invoke against all adverse claimants, .

Petitioner grounds his claim of ownership over the Property through his and Vere's combined possession of the Property for more than ten years, counted from Vere's purchase of the Property from Rodrigo in 1970 until  February 1986 for prescription. The ten year ordinary prescriptive period to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just title and good faith. There is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was the owner thereof, and could

transmit his ownership.Petioner acquired no title over the property.; just title having successively acquired the Property through sale, neither was a good faith possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property "in the concept of an owner" ("como tag-iya") since 21 May 1962, nearly three years before Rodrigo's donation in 3 May 1965 and seven years before Vere bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her, including Vere and petitioner. The payment of  taxe in 1982  finds no basis, infact, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession of the Property, a fact that prevented Vere from being a buyer in good faith. The sale between Rodrigo and petitioner” predecessor-in-interest (Vere) is void .

Lacking good faith possession, petitioner's only other recourse to maintain his claim of ownership by prescription is to show open, continuous and adverse possession of the Property for 30 years.

 Rodrigo never passed ownership over the Property to Rodriguez, namely, that Rodriguez registered the Deed and paid taxes on the Property only in 1982; the text of the Deed and based on the contemporaneous acts of Rodrigo and Rodriguez, the latter, already in possession of the Property since 1962 as Rodrigo admitted, obtained naked title over it upon the Deed's execution in 1965. Neither registration nor tax payment is required to perfect donations.;  Rodriguez obtained the title obtained from Rodrigo under the Deed.

The "language of the [Deed is] x x x confusing and which could admit of possible different interpretations,"; foolowing^[ factors  be considered pivotal to the Deed as donation inter vivos: (1) Rodriguez had been in possession of the Property as owner since 21 May 1962, subject to the delivery of part of the produce to Apoy Alve; (2) the Deed's consideration was not Rodrigo's death but her "love and affection" for Rodriguez, considering the services the latter rendered; (3) Rodrigo waived dominion over the Property in case Rodriguez predeceases her, implying its inclusion in Rodriguez's estate; and (4) Rodriguez accepted the donation in the Deed itself, an act necessary to effectuate donations inter vivos, not devises.

G.R. No. L-27952 February 15, 1982

 RAMIREZ vs.  RAMIREZ

FACTS;

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate; submitted an inventory of the estate together with testamentary dispositions.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle.

ISSUE:  Whether or not the usufruct  of wanda is valid.

Supreme court held;

The validity of the usufruct given to Wanda  covers not only succession by operation of law but also testamentary succession; the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

The usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens .

Taking into consideration of testamentary succession as to substitutions, namely;

1. Simple or common 2. Brief or compendious 3. Reciprocal 4. Fidecommissary. (only  two are principal classes of substitution; simple and fidecommissary)

ART. 859.  Simple or vulgar  -The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. Hence, the vulgar substitution is valid.

G.R. No. 45425 March 27, 1992

 KILAYKO vs. TENGCO

On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento"

On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustquia Lizares.  On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the RTC Negros Occidental.

The required publication of the notice of hearing of the petition having been made, in due course, the probate court issued an order declaring the will probated and appointing Eustaquia as the executrix of the estate of Maria Lizares.

On July 10, 1968, Eustaquia filed a project of partition which was granted by the probate court in an order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them the properties repectively assigned to each and every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks, and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares.

Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order that some properties of Maria Lizares which had been omitted in the partition be adjudicated to her. 8 The Court granted the motion and correspondingly reopened the testate proceedings. It adjudicated to Eustaquia certain shares of stocks, a revolving fund certificate, plantation credits and sugar quota allocations, and real or personal properties of Maria Lizares which were not given by her to any other person in her last will and testament. ⁹

On November 28, 1972, the heirs of Maria Lizares and Eustaquia Lizares executed an agreement of partition and subdivision, thereby terminating their co-ownership over  the lots. ( in the partition).

A year later or on November 23, 1973, Eustquia Lizares died single without any descendant.  In due time, Rodolfo Lizares and Amelo Lizares were appointed joint administrators of Eustquia's intestate estate.

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko,et al. (hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion to reopen once again the testate estate proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. The court denied the motion.

on October 14, 1974, the said movants filed a complaint for recovery of ownership and possession of real property against the joining administrators of the estate of Eustaquia Lizares  and availed their rights by filing a notice of lis pendens with the Register of Deeds of Negros Occidental.

ISSUE ;

1.   whether or not the distribution of the property is valid.

2.   Whether or not RTC has a jurisdiction.

Supreme court ruled;

In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.  The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will.

The will has been already probated, only the partition be examined by the RTC either be accepted or rejected.

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled . . .. A project of partition is merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto.

 In the instance case .the records will show that  distribution and in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by the probate court, the parties and Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their co-ownership over Lots ( in the partition).  These facts taken altogether show that theMaria Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof.

Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was affected through improper means or without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition.

 That Eustaquia had been in possession of the questioned lots since March 2, 1971 up to the time of her death indicates that the distribution pursuant to the decree of partition has already been carried out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of the testate estate proceedings of Maria Lizares, the judicial decree of partition and order of closure of such proceedings was already final and executory, then reglementary period of thirty (30) days having elapsed from the time of its issuance, with no timely appeal having been filed by them. Therefore, they cannot now be permitted to question the adjudication of the properties left by will of Maria Lizares, by filing an independent action for the reconveyance of the very same properties subject of such partition.

A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.

The very object of which the courts were constituted was to put an end to controversies."  The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is the opening of the same by proper motion within the reglementary period, instead of an independent action, the effect of which if successful, would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed .

The order approving the distribution of the estate of Maria Lizares to the heirs instituted in said will has become final and unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and over the parties; r the settlement of the estate of Maria Lizares was a proceeding in rem that was directed against the whole world including Celsa L. Vda. de Kilayko, et al., and the judicial administrators of Eustaquia 

when a testator merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. ⁴⁷ In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy.

G.R. No. 182567               July 13, 2009

EASEMENT

 TELMO vs. BUSTAMANTE,

The  respondent is a co-owner of a real property of 616 square meters in Brgy. Halang, Naic, Cavite,lot 952-A. Petitioner and Elizalde Telmo (Telmos) are the owners of the two (2) parcels of land denominated as Lot 952-B and 952-C, respectively, located at the back of respondent’s lot. When his lot was transgressed by the construction of the Noveleta-Naic-Tagaytay Road, respondent offered for sale the remaining lot to the Telmos. The latter refused because they said they would have no use for it, the remaining portion being covered by the road’s 10-meter easement.

 on May 8, 2005, respondent caused the resurvey of Lot 952-A in the presence of the Telmos. The resurvey showed that the Telmos encroached upon respondent’s lot. Petitioner then uttered, "Hangga’t ako ang municipal engineer ng Naic, Cavite, hindi kayo makakapagtayo ng anuman sa lupa n’yo; hindi ko kayo bibigyan ng building permit."

On May 10, 2005, respondent put up concrete poles on his lot. However, around 7:00 p.m. of the same day, the Telmos and their men allegedly destroyed the concrete poles. The following day, respondent’s relatives went to Brgy. Chairman Consumo to report the destruction of the concrete poles.

Respondent complained that he and his co-owners did not receive any just compensation from the government when it took a portion of their property for the construction of the Noveleta-Naic-Tagaytay Road. Worse, they could not enjoy the use of the remaining part of their lot due to the abusive, Illegal, and unjust acts of the Telmos and Consumo. Respondent charged the latter criminally—

petitioner deniedthat only performed his official duties in requiring an application for a building permit before any structure can be erected on government property. He said that respondent insisted on enclosing with barbed wire and concrete posts the lot that already belonged to the national government, which had now been converted into a national road. He also alleged that if he allowed the enclosures erected by the respondent, other residents would be denied ingress to and egress from their own properties.

Petioner explained to the people present that the property enclosed by respondent is owned by the government and that no one is allowed to construct any fence without a permit from him, as the Municipal Engineer, or from any building official of the local government of Naic, Cavite. Consumo said that the residents affected by the fence constructed by respondent were the ones who pulled out the concrete posts in order to provide access to the national road. These residents included the petitioner, whose trucks used for delivering sand and hollow blocks were enclosed and also denied access.

Petitioner  telmo that respondent could not enclose the property in question unless the latter obtains a building permit from the Office of the Municipal Engineer/Building Official, since it appeared that the subject property was no longer a property of respondent but was converted into government property by virtue of the 30-meter road set-back imposed by the Zoning Ordinance of the Municipality of Naic, Cavite. Elizalde Telmo stated that he did not offer any resistance to the fencing of the property in question.

 petitioner contends that the property claimed and enclosed with concrete posts by respondent was validly taken by the National Government through its power of eminent domain, pursuant to Executive Order No. 113, as amended by Executive Order No. 253, creating the Noveleta-Naic-Tagaytay Road.  petitioner contends that the concrete posts erected by respondent were a public nuisance under Article 694 (4 of the Civil Code, more particularly a nuisance per se, which may be summarily abated under Article 699 (3) of the same Code. Petitioner says that as the Municipal Engineer, he is also the Building Official of Naic, Cavite; and thus, it was well within his authority, pursuant to Section 214, paragraph two (2) of the National Building Code, to order the removal of the concrete posts. Petitioner likewise claims that Section 23 of Revised Philippine Highway Act (Presidential Decree No. 17) mandated him to remove respondent’s concrete posts. Petitioner concludes that since he merely performed his official duties in removing the concrete posts erected by petitioner from the property, which is already owned by the government, he must be absolved of any administrative liability.  Respondents however is no loner interested in pursuing the case, he submitted an Affidavit of Desistance.

ISSUE:  Whether or not the demolition is valid by way  of easement( right of way)

Ruling;

The desistance of the complainant does not necessarily result in the dismissal of the administrative complaint because the Court attaches no persuasive value to a desistance, especially when executed as an afterthought.²⁵ It should be remembered that the issue in an administrative case is not whether the complaint states a cause of action against the respondent, but whether the public officials have breached the norms and standards of the public service.²⁶ Considering that petitioner admitted in his pleadings that he summarily removed the concrete posts erected by respondent, allegedly within the parameters of his authority as Municipal Engineer of Naic, Cavite,  case be decided on its merits rather than on the basis of the desistance of respondent.

It cannot be deniedthat the respondent’s property was taken by the National Government thru the Department of Public Works and Highways when it constructed the Noveleta-Naic-Tagaytay Road. What is not clear from the records of this case is whether respondent’s property was taken as part of the national road itself or only as part of the right-of-way easement therefor. that the re-survey plan²⁷ of his property attached by respondent to his complaint and the survey plan²⁸ of the Noveleta-Naic-Tagaytay Road submitted by petitioner appear to be different. Nevertheless, it is evident from the sketch plans that respondent could not enclose his property because it is now being used by the National Government. Therefore, whatever cause of action respondent may have in his claim for just compensation for the taking of his property, the same should be lodged against the National Government.

 First ;While it is settled that respondent does not have the legal right to enclose the property,  the petitioner should performed his official functions properly.; for ff; provisions

Sec. 215. Abatement of Dangerous Buildings.—When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the decree of danger to life, health, or safety.

Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those which are herein declared as such or are structurally unsafe or not provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health or public welfare because of inadequate maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to the pollution of the site or the community to an intolerable degree.

  Second ;it appears that the concrete posts do not even fall within the scope of the provisions     of the National Building Code.

[A] constructed edifice designed usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure – distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.

The respondent’s concrete posts were not in the nature of a nuisance per se, which is not be the subject of summary abatement sans any judicial proceedings. A nuisance per se is that which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. Evidently, the concrete posts summarily removed by petitioner did not at all pose a hazard to the safety of persons and properties, which would have necessitated immediate and summary abatement. What they did, at most, was to pose an inconvenience to the public by blocking the free passage of people to and from the national road.

Third.  Revised Philippine Highway Act and Department Order No. 52 do not expressly provide for the administrative sanction to be taken against public officials violating their provisions..

Department Order No. 52 directs all District Engineers to immediately remove or cause the removal of all obstructions and prohibited uses within the right-of-way of all national roads in their respective jurisdictions. These obstructions and prohibited uses include, among others, all kinds of private, temporary and permanent structures, such as buildings, houses, shanties, stores, shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences, walls, railings, basketball courts, garbage receptacles, and the like. The Department Order requires the District Engineers to issue notices to the concerned persons to remove the obstructions and prohibited uses within the right-of-way, and shall follow through prompt compliance with these notices and full implementation of the Order. It further provides that appropriate sanctions will be taken against those who fail to comply with its provisions.

G.R. No. 129098             December 6, 2006

CABRERAVS. BALTAZAR 9CABRERA

Facts;

In her Complaint-Affidavit before the Ombudsman; petitioner stated that she entered into a lease agreement with the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations.  she had spent approximately P5,000,000.00 for its construction before the fishpond operations commenced in August 1995. A month later, petitioner learned from newspaper reports of the impending demolition of her fishpond as it was purportedly illegal and blocked the flow of the Pasak River..⁴

Respondents ordered the destruction of petitioner's fishpond. The property was demolished on 10 October 1995 by dynamite blasting. Petitioner alleged that the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage. Petitioner imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their prior knowledge of the existence of the lease agreement. She also charged respondents Governor Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the destruction of the fishpond without first verifying its legality.⁵

Respondents, submitted counter-affidavits, denying the accusations against them. , they insisted that contrary to petitioner's claim, the fishpond was an illegal structure because it was erected on the seashore, at the mouth of the Pasak River, and sat on an inalienable land. They claimed that the demolition was done by the Task Force Bilis Daloy upon the directive of then President Fidel V. Ramos.⁶

Governor lapid averred that the contract of lease between petitioner and the Municipality of Sasmuan, represented by then Mayor Abelardo Panlaqui, was executed two weeks before respondent Mayor Baltazar took his oath of office in 1995.  also argued that under the law, the Department of Agriculture (DA) is the government agency authorized to enter into licensing agreements for fishpond operations, and as per certification by the DA Regional Director, petitioner's fishpond operation was not covered by a fishpond lease agreement or application.  also referred to the certification by the Municipal Health Officer of Sasmuan ;issued before the actual demolition of the fishpond, describing it as a nuisance per se and recommending its abatement. Ombudsman dismissed the case by reason of police power exercise by the LGU .

⁹ Petitioner arguing  under Sec. 149 of Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991, the exclusive authority to grant fishery privileges is vested in the municipalities. Petitioner also questioned the certification by the Municipal Health Officer, alleging that the same was issued before the ocular inspection of the property which took place only on the day of the demolition. Petitioner also contended that a judicial proceeding was necessary to determine whether the property indeed had caused the flooding. Respondents opposed.

ISSUE: 

1.    Whether or not the demolition is valid despite of existence of the contract  of lease.

RULING:

Based on the declaration that the fishpond was a nuisance per se be abated through police power.  ; R.A. No. 7160 applicable to the grant of fishery privileges, the Bureau of Fisheries and Aquatic Resources (BFAR) is the government agency authorized to grant fishpond license or permit in areas not identified as municipal waters or not declared as alienable or disposable by the Department of Environment and Natural Resources (DENR). Since it appears from DENR records that the subject property has not been declared disposable or included in areas devoted for fishpond development,

 the lease agreement entered into by petitioner was void ab initio. In view of the illegality of the lease agreement, the Ombudsman ruled that its demolition was justified. The Ombudsman described the demolition as a valid exercise of police power and in accordance with the provision of Sec. 28 of P.D. No. 704 directing the removal of any fishpen or fishpond that obstructed the free navigation of a stream or lake. It also upheld the authority of the district health officer to determine the abatement of a nuisance without need of judicial proceedings. "those who participated in the blasting of the subject fishpond were only impelled by their desire to serve the best interest of the general public; for the good and the highest good."

The Department of Agriculture (DA) is the government agency authorized to enter into licensing agreements for fishpond operations, and as per certification by the DA Regional Director, petitioner's fishpond operation was not covered by a fishpond lease agreement or application.  the certification by the Municipal Health Officer of Sasmuan issued before the actual demolition of the fishpond,  as a nuisance per se and subject for abatement.

G.R. No. 184478               March 21, 2012

PEREZ VS.    MADRONA

FACTS;

Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a residential property located in Lot 22, Block 5,  Subdivision, Phase II, Marikina City and covered by Transfer Certificate of Title No. 169365⁴ of the Registry of Deeds of Marikina. In 1989, respondents built their house thereon and enclosed it with a concrete fence and steel gate.

In 1999, respondents received the following letter dated May 25, 1999 from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office.  For a demolition notice.

As response, respondent Madrona sent petitioner a three-page letter⁶ dated June 8, 1999 stating that the May 25, 1999 letter (1) contained an accusation libelous in nature as it is condemning him and his property without due process; (2) has no basis and authority since there is no court order authorizing him to demolish their structure; (3) cited legal bases which do not expressly give petitioner authority to demolish; and (4) contained a false accusation since their fence did not in fact extend to the sidewalk.

On June 9, 1999, respondents received a letter⁷ from petitioner requesting them to provide his office a copy of the relocation survey on the subject property. Respondents, however, did not oblige because it was as if petitioner was fishing evidence from them.

More than a year later or on February 28, 2001, petitioner sent another letter⁸ with the same contents as the May 25, 1999 letter but this time giving respondents ten days from receipt thereof to remove the structure allegedly protruding to the sidewalk. This prompted respondents to file a complaint⁹ for injunction before the Marikina City RTC on March 12, 2001.

Respondents likewise sought the issuance of a temporary restraining order (TRO) and a writ of preliminary injunction to enjoin petitioner and all persons acting under him from doing any act of demolition on their property and that after trial, the injunction be made permanent.

ISSUE ;   1.Whether or not the demolition  order is proper.

1.     Whether or not the rights of the respondents violated.  

Ruling:

For injunction to issue, two requisites must concur: first, there must be a right to be protected and second, the acts against which the injunction is to be directed are violative of said right. Here, the two requisites are clearly present: there is a right to be protected, that is, respondents’ right over their concrete fence which cannot be removed without due process; and the act, the summary demolition of the concrete fence, against which the injunction is directed, would violate said right.

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity .. The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention.

Respondents’ fence is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still exists. If petitioner believes that respondents’ fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted.

Respondents, for their part, counter that the presumption of regularity has been negated by the fact that despite their reply to the first notice, which put petitioner on notice that what he was doing was ultra vires, he still reiterated his earlier demand and threat of demolition. Having been warned by respondents that his acts were in fact violations of law, petitioner should have been more circumspect in his actions and should have pursued the proper remedies that were more in consonance with the dictates of due process.

That respondents, being lawful owners of the subject property, are entitled to the peaceful and open possession of every inch of their property and petitioner’s threat to demolish the concrete fence around their property is tantamount to a violation of their rights as property owners who are entitled to protection under the Constitution and laws.  there is no showing that respondents’ fence is a nuisance per se and presents an immediate danger to the community’s welfare, nor is there basis for petitioner’s claim that the fence has encroached on the sidewalk as to justify its summary demolition.