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PROPERTY RULES

Demolish me not

04:10 AM February 20, 2021

Ernie filed a complaint for demolition before the City Engineer’s Office (“CEO”) of the City of Pines questioning the ongoing construction of a residential structure and garage extension by Leon, Art and Dan on a parcel of land allegedly owned by Mar and Ernie’s father, Juan. The CEO found out that the construction had no building permit. Consequently, the City Mayor issued Demolition Order No. 05, series of 2005 (DO No. 05) directing the City Demolition Team to summarily demolish the said structures erected by the three gentlemen. No amount of plea for a reversal could change the position of the Office of the Mayor.

Aggrieved, the three gentlemen filed a complaint for injunction and prohibition seeking to enjoin the implementation of the demolition order. In their complaint, they applied for a temporary restraining order, which was granted by the RTC. Subsequently, the RTC issued a writ of preliminary injunction pending the final determination of the merits of the case.

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During trial, Art testified, among others, that he has a Tax Declaration and a pending application for Ancestral Land Claim over the subject property filed before the National Commission on Indigenous Peoples (NCIP), and that he has been paying taxes therefore and occupying the same since 1977. He also testified that Ernie had previously filed a case with the Office of the Department of Environment and Natural Resources (DENR), questioning his possession thereof, as well as, seeking the cancellation of his tax declaration over the said property. The DENR-CAR dismissed the case in his favor, but Ernie appealed to the Office of the DENR Secretary. At the time the appeal was pending, Ernie filed the complaint for demolition before the CEO. Art further testified that the barangay is covered by Proclamation No. 414, series of 1957 (Proclamation 414), which declared the same as mineral reservation, for which reason he was unable to get a title over the subject property despite his possession thereof.

The Punong Barangay also testified in favor the three gentlemen. He testified that by Resolution No.386, series of 1995, the City Council requested for the release of the vast area covered by Proclamation 414, for housing purposes to be awarded to the occupants of the Barangay. Also, he narrated that in a census conducted in 2003, it was found that there were two hundred thirty (230) houses in the subject barangay and none of these houses had building permits.

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On the other hand, Ernie’s witnesses all testified that the structures of petitioners on the subject property were not covered by any building permit. Ernie also testified that the issue of possession over the said property was the subject of an appeal pending before the Office of the DENR Secretary.

Q: Who are the “new squatters,” the “professional squatters,” and the “squatting syndicates”?

A: “New squatter” refers to individual groups who occupy land without the express consent of the landowner after March 28, 1992. Their structures shall be dismantled and appropriate charges shall be filed against them by the proper authorities if they refuse to vacate the premises. “Professional squatters” refers to individuals or groups who occupy lands without the express consent of the landowner and who have sufficient income for legitimate housing. The term shall also apply to persons who have previously been awarded home lots or housing units by the Government but who sold, leased or transferred the same to settle illegally in the same place or in another urban area, and non-bona fide occupants and intruders of lands reserved for socialized housing. The term shall not apply to individuals or groups who simply rent land and housing from professional squatters or squatting syndicates. “Squatting syndicates” refers to groups of persons engaged in the business of squatter housing for profit or gain.

Q: Are Leon, Art and Dan considered as “new squatters,” or “professional squatters,” or part of “squatting syndicates”?

A: No, since, although their structures were built after March 28, 1992, they or their predecessors-in-interest had occupied, and were claimants of the subject property long before the said date. Neither have they been identified by the LGU as professional squatters nor members of a squatting syndicate. Thus, since petitioners do not fall under the coverage of the said IRR, the issuance of DO No. 05 (the demolition order) had no legal basis at the onset.

Q: Were the three situations enumerated under Section 28, Article VII of RA 7279 as above-cited present in the case at bar?

A: No. It was not shown that the structures are in danger areas or public areas, such as a sidewalk, road, park or playground; that a government infrastructure project is about to be implemented; and that there is a court order for demolition or eviction. Therefore, the issuance by the City Mayor of an order for the summary demolition of petitioners’ structures finds no basis in the said law permitting summary demolition or eviction.

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Q: Does the absence of building permits warrant the summary demolition of the structures?

A: While it is admitted that there were no building permits, P.D. No. 1096, otherwise known as the “National Building Code of the Philippines” (NBCP), provides that the mere fact that a structure is constructed without a building permit, as well as non-compliance with work stoppage order, without more, will not call for a summary demolition, but subjects the violator to an administrative fine under Section 212, Chapter II of the NBCP, or a criminal case under Section 213 of the same law.

Indeed, while Section 301, Chapter III of the NBCP states that “ [ n] o person, firm or corporation, including any agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure or cause the same to be done without first obtaining a building permit therefore from the Building Official assigned in the place where the subject building is located or the building work is to be done,” the remedy of summary abatement against the bare absence of a building permit was not provided for.

Meanwhile, Section 215 of the NBCP, and its corresponding IRR provision states that before a structure may be abated or demolished, there must first be a finding or declaration by the Building Official that the building/structure is a nuisance, ruinous or dangerous.

To this, it bears noting that it is the Building Official, and not the City Mayor, who has the authority to order the demolition of the structures under the NBCP. In fact, in the performance of his duties, a Building Official may enter any building or its premises at all reasonable times to inspect and determine compliance with the requirements of this Code, and the terms and conditions provided for in the building permit as issued.

In this case, none of the foregoing requisites were shown to concur. Plainly, records are bereft of any declaration coming from the Building Official, and it is undisputed that the demolition order was issued by the City Mayor. In fine, DO No. 05, which ordered the summary demolition of petitioners’ structures has no legal moorings and perforce was invalidly issued.

(Source: Alangdeo vs. The Coty Mayor of Bguio, G.R. No. 206423, July 1, 2015)Ma. Soledad Deriquito-Mawis is the Dean of Lyceum of the Philippines University, Board of Trustee at the Philippine Association of Law Schools, founder of Mawis Law Office

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TAGS: demolition, squatters
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