[ manilastandardtoday.com ] January 25, 2010
MALACANANG has effectively allowed the rezoning of the posh Bel-Air Village in Makati, saying the restrictions imposed on buyers of lots in the subdivision, including obligatory membership in its homeowners’ association, were valid only until January 2007.
Executive Secretary Eduardo Ermita, in a decision issued on Dec. 29, 2009, reinstated the decision of an arbiter of the Housing and Land Use Regulatory Board, which said that Bel-Air Village Association Inc. could not extend the validity of the Deed of Restrictions, and that there was no quorum when the group made the decision.
Arbiter Michelle Jan Babiano said her May 21, 2008 decision was based on a complaint filed against the homeowners’ association and the Makati City Register of Deeds, and by several members who had resigned and questioned the association’s decision to extend the restrictions.
The complainants—Aurora Pijuan, Gamaliel Pascual Jr., Ma. Lourdes Limjap Pascual, Sofia Limjap, Cesar Yatco Real Estate Services Inc., GRD Property Resources Inc. and Masterman Land Corp.—had resigned from the homeowners association in January 2007, a month before they filed their complaint.
They claimed that in acquiring their properties, they accepted the restrictions but were fully aware they were effective only until January 2007.
Babiano said the complainants had claimed that the restrictions provided only a way for cutting short the term of the restrictions, and that recent advances in urban planning should allow Bel-Air Village to “grow with the times and consider the stringent restrictions outmoded.”
“The term of the Restrictions was never part of the Restrictions, and hence, it may not be amended on the basis of the second sentence,” Babiano said in her decision.
“To propose now that [the association] has such power to extend is to unduly read into the Deed what was not agreed upon by the Complainants, in utter disregard if the latter’s proprietary rights well-enshrined under the Constitution.’’
“The foregoing restrictions shall remain in force for 50 years from Jan. 15, 1957, unless sooner canceled in its entirety by two-thirds vote of members in good standing of the Bel-Air Association. However, the Association may, from time to time, add new ones, amend or abolish particular restrictions or part thereof by majority rule,” the terms of the Deed of Restrictions said.
The complainants had earlier asserted their position to the association that the group did not have the power to extend the Deed of Restrictions. The association called for a special membership meeting in December 2006 to vote for the proposed amendment to extend the restrictions up to August 2032.
Babiano said there was no quorum during the Dec. 12, 2006 meeting because the proxies used by representatives of the homeowners were not notarized and less than 50 percent of the members were present.
The association won their appeal with theLand Use Board’s commissioners, who said in their December 2008 decision and January 2009 resolution that if the association had the power to shorten the term of restrictions, it should also have the power to extend it. The board also said the proxies need not be notarized under the corporation code.
Ermita said they did not agree with the commissioners because the framers of the restrictions “could have easily stated the [extension] in wording the provision [‘unless sooner canceled or extended in its entirety’].”
“The 50-year term is not to be construed as one of the restrictions, otherwise it would be absurd to have a set of restrictions restricting each other,” Ermita’s decision said.
Ermita also said that other than the corporation code, the New Civil Code and other laws should also be followed when it concerned proxies.
The decision of the Office of the President said that Article 187 provided that a Special Power of Attorney was needed when the contract involved the creation of a “conveyance of real rights over immovable property.”
Ermita noted that although the complainants could not be compelled to be members of the association, they had signified their willingness to contribute their share of reasonable and necessary expenses incurred in rendering essential services, such as garbage collection and other expenses.
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