Each of us must rededicate ourselves to serving the common good.  We are a community. Our individual Fates are linked; our futures intertwined…

― Jimmy Carter, 39th President of the United States


 

By Ernesto C. Perez II


 

JIM recently wrote to me and requesting for a legal opinion. She is a beneficiary in a Community Association in Mati City. Her problem started when another beneficiary built a structure and improvements over a road lot that provided access to her lot to the road. Specifically, here are her questions:

1. Does beneficiary [who built the structure] has the right to claim the “open space”/ road-right-of-way/old subdivision road? Because he argued that he owns it as replacement to portion of his lot [that was now] being used in new subdivision road. (Note he claim without any CA consultation and simple majority approval).

2. The CA Officers/Boards tolerated his action, our complaint was not given attention. We were looking for justice, what best for us to do in order to get heard?

The problem of JIM is similar to other Community Mortgage Program (CMP) projects all over the country. But, in order to answer her query we assume several things.

First, that the CMP project where JIM is a beneficiary has an approved subdivision plan by the Department of Environment and Natural Resources (DENR).

Second, that each lot identified in the approved plan has a technical description based on the lot data computations covering the entire subdivision project.

Finally, that each lot identified in the approved plan has an individual title.

By assuming these three things, the problem of JIM can be answered by merely getting a copy of the title of the road lot at the Registry of Deeds having jurisdiction over the location of the real property.

Road lots have separate land titles as well as the open spaces used for community areas, parks, and/or playground. These lots are outside the commerce of man.

What does this mean? Road lots and open spaces for community areas cannot be owned by any person. It cannot be sold, mortgaged or conveyed to anybody.

As reflected in the land title, the technical description of the road lot will prove that the reason of the neighbor-beneficiary of JIM is not legal due to the reason mentioned above.

However, is there a chance that the reason put forth by the said neighbor-beneficiary of JIM be legally tenable? The answer is YES.

But there should be a process that must be followed before a road lot can be converted into a residential lot.

A petition to amend the approved plan should be filed before the DENR. But, not any person can file such a petition. In the case of the CMP project showcased above, the Community Association in Mati City should be the Petitioner.

But, prior to filing the Petition, the Community Association should first conduct a public consultation on the affected beneficiaries. In the case of JIM, she should be among those who should have been consulted by the Community Association because her lot was affected by the actions of her neighbor-beneficiary.

The Board of Trustee/Directors of the Homeowners’ Association (HOA) of the Community Association of JIM should convene and appoint a person who will sign the Verification and Certification of Non-Forum Shopping that will be attached to the Petition to Amend the Approved Plan.

Absent all these things, the claim of the neighbor-beneficiary of JIM is without legal basis. The reason for filing the Petition is to allow the affected people to consent to the changes because all residential lots in a subdivision project should have access to a road or right-of-way.

If there is no approved plan by the DENR on the CMP project, then all the more reason that the rights of JIM should be protected. The Board of Trustees/Directors of the HOA should take the lead in addressing the concerns of JIM and the other affected beneficiaries.

If the members of the Board of the HOA have been remised in their duties in protecting the rights of the homeowner-members (like JIM) then the course of action of JIM would be to petition HLURB for the removal of the director or trustee of their HOA who did not give attention to the problem of JIM, under Rule 11, Section 55 of Board Resolution No. 877, Series of 2011, or the “Implementing Rules and Regulations of Republic Act No. 9904, otherwise known as The Magna Carta for Homeowners and Homeowners Associations.”

But prior to filing a Petition to Remove a Director or Trustee of a HOA, dialogue is always best between the parties involved. We hope that any litigation is averted and an amicable settlement to the issue at hand is reached because in the end, the people who are in dispute at this time are neighbors who will see each and live with each other every day of their lives.

Do you know of a similar situation in another locality? Share it with us. We will be more than welcome to know about it.