FIRST DIVISION
G.R. No. 199353, April 04, 2018
LEVISTE MANAGEMENT SYSTEM, INC., Petitioner, v. LEGASPI TOWERS 200, INC., AND VIVIAN Y. LOCSIN AND PITONG MARCORDE, RESPONDENTS.
ENGR. NELSON Q. IRASGA, IN HIS CAPACITY AS MUNICIPAL BUILDING OFFICIAL OF MAKATI, METRO MANILA AND HON. JOSE P. DE JESUS, IN HIS CAPACITY AS SECRETARY OF THE DEPT. OF PUBLIC WORKS AND HIGHWAYS, THIRD PARTY, Respondents.
G.R. NO. 199389, April 04, 2018
LEGASPI TOWERS 200, INC., Petitioner, v. LEVISTE MANAGEMENT SYSTEM, INC., ENGR. NELSON Q. IRASGA, IN HIS CAPACITY AS MUNICIPAL BLDG. OFFICIAL OF MAKATI, METRO MANILA, AND HON. JOSE P. DE JESUS, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, Respondents.
D E C I S I O N
LEONARDO-DE CASTRO, J.:**
Legaspi Towers is a condominium building located at Paseo de Roxas, Makati City. It consists of seven (7) floors, with a unit on the roof deck and two levels above said unit called Concession 2 and Concession 3. The use and occupancy of the condominium building is governed by the Master Deed with Declaration of Restrictions of Legaspi Towers (hereafter "Master Deed") annotated on the transfer certificate of title of the developer, Legaspi Towers Development Corporation.
Concession 3 was originally owned by Leon Antonio Mercado. On 9 March 1989, Lemans, through Mr. Conrad Leviste, bought Concession 3 from Mercado.
Sometime in 1989, Lemans decided to build another unit (hereafter "Concession 4") on the roof deck of Concession 3. Lemans was able to secure the building permit for the construction of Concession 4 and commenced the construction thereof on October 1990.
Despite Legaspi Corporation's notice that the construction of Concession 4 was illegal, Lemans refused to stop its construction. Due to this, Legaspi Corporation forbade the entry of Lemans' construction materials to be used in Concession 4 in the condominium. Legaspi Corporation similarly wrote letters to the Building Official Nelson Irasga ("hereafter Irasga"), asking that the [building] permit of Lemans for Concession 4 be cancelled. Irasga, however, denied the requested cancellation, stating that the applicant complied with the requirements for a building permit and that the application was signed by the then president of Legaspi Corporation.
Lemans filed the Complaint dated February 20, 1991 with the RTC, praying among others that a writ of mandatory injunction be issued to allow the completion of the construction of Concession 4. On 3 April 1991, the RTC issued the writ prayed for by Lemans.
Later, Legaspi Corporation filed the Third Party Complaint dated October 7, 1991. This was against Irasga, as the Municipal Building Official of Makati, and Jose de Jesus (herafter "De Jesus"), as the Secretary of Public Works and Highways (collectively referred to as the "third-party defendants-appellees") so as to nullify the building permit issued in favor of Lemans for the construction of Concession 4.
After the parties had presented and formally offered their respective pieces of evidence, but before the rendition of a judgment on the main case, the RTC, in its Order dated May 24, 2002, found the application of Article 448 of the Civil Code and the ruling in the Depra vs. Dumlao [case] (hereafter "Depra Case") to be proper.
Lemans moved for the reconsideration o[f] the aforementioned order. The RTC denied this and further ruled:The main issue in this case is whether or not [LEMANS] owns the air space above its condominium unit. As owner of the said air space, [LEMANS] contends that its construction of another floor was in the exercise of its rights.
It is the [finding] of the Court that [LEMANS] is not the owner of the air space above its unit. [LEMANS'] claim of ownership is without basis in fact and in law. The air space which [LEMANS] claims is not on top of its unit but also on top of the condominium itself, owned and operated by defendant Legaspi Towers.
Since it appears that both plaintiff and defendant Legaspi Towers were in good faith, the Court finds the applicability of the ruling in Depra vs. Dumlao, 136 SCRA 475.
From the foregoing, Lemans filed the Petition for Certiorari dated November 13, 2002 with the [Court of Appeals], docketed as CA G.R. SP. No. 73621, which was denied in the Decision promulgated on March 4, 2004. The Court did not find grave abuse of discretion, amounting to lack or excess of jurisdiction, on the RTC's part in issuing the above orders. Lemans sought reconsideration of this decision but failed.
Meanwhile, Lemans adduced evidence before the RTC to establish that the actual cost for the construction of Concession 4 was Eight Hundred Thousand Eight Hundred Ninety-seven and 96/100 Pesos (PhP800,897.96) and that the fair market value of Concession 4 was Six Million Pesos (PhP6,000,000.00). Afterwards, the RTC rendered the Assailed Decision.5
WHEREFORE, judgment is hereby rendered ordering defendant Legaspi Towers 200, Inc. to exercise its option to appropriate the additional structure constructed on top of the penthouse owned by plaintiff Leviste Management Systems, Inc. within sixty [60] days from the time the Decision becomes final and executory. Should defendant Legaspi Towers 200, Inc. choose not to appropriate the additional structure after proper indemnity, the parties shall agree upon the terms of the lease and in case of disagreement, the Court shall fix the terms thereof.
For lack of merit, the third party complaint and the counterclaims are hereby dismissed.
Costs against the plaintiff.6
[LEMANS PETITION:]I
THE COURT OF APPEALS ERRED WHEN IT FAILED TO APPLY THE DEPRA VS. DUMLAO DOCTRINE WHEN IT REFUSED TO RULE ON THE PROPER VALUATION OF THE SUBJECT PROPERTY FOR THE PURPOSE OF DETERMINING THE PURCHASE PRICE IN THE EVENT THAT RESPONDENT LEGASPI TOWERS EXERCISES ITS OPTION TO PURCHASE THE PROPERTYII
THE COURT OF APPEALS ERRED WHEN, REFUSING TO RULE ON THE VALUATION OF THE SUBJECT PROPERTY, IT DISREGARDED THE EVIDENCE ALREADY SUBMITTED AND PART OF THE RECORDS.10
[LEGASPI TOWERS PETITION:]
- THE COURT OF APPEALS ERRED IN NOT HOLDING THAT [LEGASPI TOWERS] HAS THE RIGHT TO DEMOLISH CONCESSION 4 FOR BEING AN ILLEGAL CONSTRUCTION.
- THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE BUILDING PERMIT OF CONCESSION 4 IS NOT VALIDLY ISSUED.11
RULE 41
Appeal from the Regional Trial Courts
SECTION 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. (Emphases supplied.)
The remedy against an interlocutory order is not appeal but a special civil action for certiorari under Rule 65 of the Rules of Court. The reason for the prohibition is to prevent multiple appeals in a single action that would unnecessarily cause delay during trial. In Rudecon v. Singson:The rule is founded on considerations of orderly procedure, to forestall useless appeals and avoid undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when all such orders may be contested in a single appeal.
Faced with an interlocutory order, parties may instantly avail of the special civil action of certiorari. This would entail compliance with the strict requirements under Rule 65 of the Rules of Court. Aggrieved parties would have to prove that the order was issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction and that there is neither appeal nor any plain, speedy, and adequate remedy in the ordinary course of law.
This notwithstanding, a special civil action for certiorari is not the only remedy that aggrieved parties may take against an interlocutory order, since an interlocutory order may be appealed in an appeal of the judgment itself. In Investments, Inc. v. Court of Appeals it was held:Unlike a "final" judgment or order, which is appealable, as above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case. (Emphases supplied; citations omitted.)
It is noteworthy to state that the petitioner imputes grave abuse of discretion on the part of the respondent judge in ruling that Article 448 and the case of Depra v. Dumlao (136 SCRA 475) are applicable in the case at bar. At most, these are considered mere errors of judgment, which are not proper for resolution in a petition for certiorari under Rule 65.
The error is not jurisdictional, and certiorari is not available to correct errors in judgment or conclusions of law and fact not amounting to excess or lack of jurisdiction. In the extraordinary writ of certiorari, neither questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion.16 (Emphases supplied.)
The special civil action of certiorari under Rule 65 is intended to correct errors of jurisdiction. Courts lose competence in relation to an order if it acts in grave abuse of discretion amounting to lack or excess of jurisdiction. A petition for review under Rule 45, on the other hand, is a mode of appeal intended to correct errors of judgment.Errors of judgment are errors committed by a court within its jurisdiction. This includes a review of the conclusions of law of the lower court and, in appropriate cases, evaluation of the admissibility, weight, and inference from the evidence presented. (Emphases supplied; citations omitted.)
As correctly pointed out by the private respondent Legaspi, the air space wherein Concession 4 was built is not only above Concession 3, but above the entire condominium building. The petitioner's [LEMANS'] ownership of Concession 3 does not necessarily extend to the area above the same, which is actually the "air space" of the entire condominium building. The ownership of the air space above Concession 3 is not a necessary incident of the ownership of Concession 3.
It may be well to state here the following provisions of Republic Act No. 4726, otherwise known as The Condominium Act:Section 2. A condominium is an interest in real property consisting of a separate interest in a unit in a residential, industrial or commercial building and an undivided interest in common directly or indirectly, in the land on which it is located and in other common areas of the building. A condominium may include, in addition, a separated interest on other portions of such real property. Title to the common areas, including the land, or the appurtenant interests in such areas, may be held by a corporation specially formed for the purpose (hereinafter known as the "condominium corporation") in which the holders of separate interests shall automatically be members or shareholders, to the exclusion of others, in proportion to the appurtenant interest of their respective units in the common areas. (RA 4726, The Condominium Act)
Section 3 (d). "Common areas" means the entire project excepting all units separately granted or held or reserved.
Section 6. Unless otherwise expressly provided in the enabling or master deed or the declaration of restrictions, the incidents of the condominium grant are as follows:
(a) The boundary of the unit granted are the interior surfaces of the perimeter walls, ceilings, windows and doors thereof. The following are not part of the unit – bearing walls, columns, walls, roofs, foundations and other common structural elements of the building x x x.
Evidently, what a unit includes is only the four walls, ceilings, windows and doors thereof. It certainly does not include the roof or the areas above it.
In a condominium, common areas and facilities are "portions of the condominium property not included in the units," whereas, a unit is "a part of the condominium property which is to be subject to private ownership." Inversely, that which is not considered a unit should fall under common areas and facilities.
Inasmuch as the air space or the area above Concession 3 is not considered as part of the unit, it logically forms part of the common areas.
The petitioner's efforts to establish that Concession 3 and the open area in the roof deck are reserved and separately granted from the condominium project are futile, inasmuch as even if the same is established, it would not prove that the area above it is not part of the common area. Admittedly, there is nothing in the Master Deed which prohibits the construction of an additional unit on top of Concession 3, however, there is also nothing which allows the same. The more logical inference is that the unit is limited to that stated in the Condominium Act, considering that the Master Deed with Declaration of Restrictions does not expressly declare otherwise.
To allow the petitioner's claim over the air space would not prevent the petitioner from further constructing another unit on top of Concession 4 and so on. This would clearly open the door to further "impairment of the structural integrity of the condominium building" which is explicitly proscribed in the Master Deed.19
Art. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.
Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.
(1) | the present fair price of the 34-square meter encroached area of the land; |
(2) | the amount of expenses spent in building the kitchen; |
(3) | the increase in value the area may have acquired by reason of the building; and |
(4) | whether the value of the 34-square meter area is considerably more than that of the kitchen built thereon. |
Article 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal code or any local ordinance; or (2) A civil action; or (3) Abatement, without judicial proceedings.
The enabling or master deed may be amended or revoked upon registration of an instrument executed by the registered owner or owners of the property and consented to by all registered holders of any lien or encumbrance on the land or building or portion thereof. The term "registered owner" shall include the registered owners of condominiums in the project. Until registration of a revocation, the provisions of this Act shall continue to apply to such property.
Section 2. The Building and the Units. The building included in the condominium project is a commercial building constructed of reinforced concrete and consisting of seven (7) storeys with a basement, a ground floor, a deck roof, and two levels above the deck roof, x x x.23
ARTICLE V
IMPROVEMENTS AND ADDITIONS
x x x x
Section 2. Extraordinary Improvements. Improvements or additions to the common areas which shall cost more than P100,000.00 or which involve structural construction or modification must be approved by the members in a regular or special meeting called for the purpose before such improvements or additions are made, x x x.25
ARTICLE VII
ABATEMENT OF VIOLATIONS
Section 1. Power to Abate Violations. In the event that any member or his tenant or lessee fails or refuses to comply with any limitation, restriction, covenant or condition of the Master Deed with Declaration of Restrictions, or with the rules and regulations on the use, enjoyment and occupancy of office/units or other property in the project, within the time fixed in the notice given him by the Board of Directors, the latter or its duly authorized representative shall have the right to enjoin, abate or remedy the continuance of such breach or violation by appropriate legal proceedings.
The Board shall assess all expenses incurred in abatement of the violation, including interest, costs and attorney's fees, against the defaulting member.26
Art. 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.
The rule that the choice under Article 448 of the Civil Code belongs to the owner of the land is in accord with the principle of accession, i.e., that the accessory follows the principal and not the other way around. Even as the option lies with the landowner, the grant to him, nevertheless, is preclusive. The landowner cannot refuse to exercise either option and compel instead the owner of the building to remove it from the land.
The raison d'etre for this provision has been enunciated thus: Where the builder, planter or sower has acted in good faith, a conflict of rights arises between the owners, and it becomes necessary to protect the owner of the improvements without causing injustice to the owner of the land. In view of the impracticability of creating a state of forced co-ownership, the law has provided a just solution by giving the owner of the land the option to acquire the improvements after payment of the proper indemnity, or to oblige the builder or planter to pay for the land and the sower the proper rent. He cannot refuse to exercise either option. It is the owner of the land who is authorized to exercise the option, because his right is older, and because, by the principle of accession, he is entitled to the ownership of the accessory thing.29
SECTION 10. Whenever the common areas in a condominium project are held by a condominium corporation, such corporation shall constitute the management body of the project. The corporate purposes of such a corporation shall be limited to the holding of the common areas, either in ownership or any other interest in real property recognized by law, to the management of the project, and to such other purposes as may be necessary, incidental or convenient to the accomplishment of said purposes. The articles of incorporation or by-laws of the corporation shall not contain any provision contrary to or inconsistent with the provisions of this Act, the enabling or master deed, or the declaration of restrictions of the project. Membership in a condominium corporation, regardless of whether it is a stock or non-stock corporation, shall not be transferable separately from the condominium unit of which it is an appurtenance. When a member or stockholder ceases to own a unit in the project in which the condominium corporation owns or holds the common areas, he shall automatically cease to be a member or stockholder of the condominium corporation.
Endnotes:
** Per Special Order No. 2540 dated February 28, 2018.
1 Section 4. The provisions of this Act shall apply to property divided or to be divided into condominiums only if there shall be recorded in the Register of Deeds of the province or city in which the property lies and duly annotated in the corresponding certificate of title of the land, if the latter had been patented or registered under either the Land Registration or Cadastral Acts, an enabling or master deed which shall contain, among others, the following x x x[.]
2 AN ACT TO DEFINE CONDOMINIUM, ESTABLISH REQUIREMENTS FOR ITS CREATION, AND GOVERN ITS INCIDENTS.
3Rollo (G.R. No. 199353), pp. 41-50; penned by Associate Justice Florito S. Macalino with Associate Justices Juan Q. Enriquez, Jr. and Ramon M. Bato, Jr. concurring.
4 Id. at 118-122.
5 Id. at 42-44.
6 Id. at 122.
7 Id. at 47-48.
8 Id. at 48-49.
9 Id. at 52-53.
10 Id. at 24.
11Rollo (G.R. No. 199389), p. 41.
12 221 Phil. 168 (1985).
13 G.R. No. 184466, December 5, 2016.
14Rollo (G.R. No. 199389), pp. 148-149.
15 Id. at 150-151. To recall, in the August 19, 2002 Order, the trial court denied LEMANS motion for reconsideration of the May 24, 2002 Order and held:The main issue in this case is whether or not plaintiff owns the air space above its condominium unit. As owner of the said air space, plaintiff contends that its construction of another floor was in the exercise of its rights.
It is the findings [sic] of the Court that plaintiff [LEMANS] is not the owner of the air space above its unit. Plaintiff[']s claim of ownership is without basis in fact and in law. The air space which plaintiff claims is not only on top of its unit but also on top of the condominium itself, owned and operated by defendant Legaspi Towers.
Since it appears that both plaintiff and defendant Legaspi Towers were in good faith, the Court finds the applicability of the ruling in Depra v. Dumlao, 136 SCRA 475.
WHEREFORE, for lack of merit the motion is hereby DENIED. (Emphases supplied.)
16 Id. at 162.
17 G.R. No. 174379, August 31, 2016, 801 SCRA 629, 642-643.
18See Presidential Decree No. 1271 Committee v. De Guzman, G.R. Nos. 187291 & 187334, December 5, 2016.
19Rollo (G.R. No. 199389), pp. 160-161.
20 Supra note 12.
21Rollo (G.R. No. 199389), pp. 78-88.
22 SECTION 4. The provisions of this Act shall apply to property divided or to be divided into condominiums only if there shall be recorded in the Register of Deeds of the province or city in which the property lies and duly annotated in the corresponding certificate of title of the land, if the latter had been patented or registered under either the Land Registration or Cadastral Acts, an enabling or master deed which shall contain, among others, the following:23Rollo (G.R. No. 199389), p. 80.
x x x x (b) Description of the building or buildings, stating the number of stories and basements, the number of units and their accessories, if any; x x x x (g) The following plans shall be appended to the deed as integral parts thereof: (1) A survey plan of the land included in the project, unless a survey plan of the same property had previously bee[n] filed in said office; (2) A diagrammatic floor plan of the building or buildings in the project, in sufficient detail to identify each unit, its relative location and approximate dimensions;
24 Id. at 301-311.
25 Id. at 308.
26 Id. at 308-309.
27 Section 23 of the Corporation Code:SECTION 23. The Board of Directors or Trustees. — Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year and until their successors are elected and qualified.
28Communities Cagayan, Inc. v. Nanol, 698 Phil. 648, 660 (2012), citing Arturo M. Tolentino, CIVIL CODE OF THE PHILIPPINES, Vol. II, 116 (1998). In his Commentaries, Tolentino had the occasion to expound that:[Article 448] and the following articles are not applicable to cases where there is a contractual relation between the parties, such as lease of land, construction contract, usufruct, etc., in which cases the stipulations of the parties and the pertinent legal provisions shall apply. The owner of the land and that of the improvements may validly settle the conflict of their rights by contract, and it is only in the absence of contrary stipulation that the alternative solutions provided by Article 448 are applicable. (Emphases supplied.)
29Tuatis v. Escol, 619 Phil. 465, 488-489 (2009); Espinoza v. Mayandoc, G.R. No. 211170, July 3, 2017.
30National Power Corp. v. Presiding Judge, RTC, 10th Judicial Region, Br. XXV, Cagayan De Oro City, 268 Phil. 507, 513 (1990).
31 Section 4. The provisions of this Act shall apply to property divided or to be divided into condominiums only if there shall be recorded in the Register of Deeds of the province or city in which the property lies and duly annotated in the corresponding certificate of title of the land, if the latter had been patented or registered under either the Land Registration or Cadastral Acts, an enabling or master deed which shall contain, among others, the following[.]
32Limson v. Wack Wack Condominium Corp., 658 Phil. 124, 133 (2011).