Sale of awarded lot without NHA consent gives no right of possession to buyer

Sale of awarded lot without NHA consent 
gives no right of possession to buyer




This is a unique unlawful detainer case where the plaintiff claimed right of possession over a lot just because it was sold to him in a deed of absolute sale by the awardee of the real property without prior consent of the NHA.

Can the buyer evict the children of the awardee through the Municipal Trial Court? 

My thesis says that the buyer did not acquire any possessory rights and that the MTC does not have jurisdiction to determine whether the award was validly transferred by the sale and the exclusive authority to do so is lodged by the law only in the NHA.

Read the Position Paper I wrote and pasted below:







Republic of the Philippines
MUNICIPAL TRIAL COURT in CITIES
Fourth Judicial Region
ANTIPOLO CITY
BRANCH 2


SPS. RONNIE M. TAGLE and
ANNIE T. TAGLE,
                                                Plaintiffs,

           
- versus -                                                       SCA Case No. 090-13
                                                                        Unlawful Detainer and Damages


ELIZABETH BROSAS, etc.
                                                Defendant.
x----------------------------------------------x



Position Paper
For Defendant Enelyn Garcia



Defendant Enelyn Garcia, being one of the actual occupants of the real property at issue since 1989, respectfully files this Position Paper.



The Timeliness



            The undersigned counsel was never furnished a copy of the Order of the Honorable Court dated March 26, 2015.


            Fortunately, the counsel had a hearing last April 29 at the RTC of Antipolo, Branch 74 and he was asked by defendant Elizabeth Brosas whether he received already the order directing the submission of Position Paper.


            Thus, it was only on that day of April 29 that the undersigned acquired a copy of the said order.


            With this, the instant Position Paper is being filed as a matter of right on this date of 4 May 2015.




The Position of Defendant Enelyn Garcia



            The Honorable Court has no jurisdiction over the instant case.


Granting arguendo that the Honorable Court has jurisdiction, the plaintiffs-spouses have no right possession to speak about so that the instant complaint for unlawful detainer must be dismissed outright.


There was no demand to vacate made upon Enelyn Garcia, so that this case must be dismissed.


There is no Certificate to File Action issued in so far as Enelyn Garcia is concerned, so that this case must be dismissed for non-compliance with Republic Act 7160 on the requisite exhaustion of barangay lupon proceedings.


Enelyn Garcia has been occupying the real property subject of this case upon her own right independent of her mother Nelly and father Ernesto.


Enelyn Garcia and her children cannot be evicted from the real property subject of this case because the Family Home law prohibits the same if there was no prior consent taken from the beneficiaries of a family home.



Brief Statement of Facts



            In 1988, the family of Nelly Encelan Garcia, including her children Elizabeth E. Garcia-Brosas and Enelyn E. Garcia, have lived on a buffer strip known as Block 37, Lot 1, Phase 1, Bagong Nayon II, Antipolo, Rizal.


            Nelly then struggled to keep her hold of the same property because a certain Pamela Q. Palos, an NHA employee, was blocking her application to purchase the said strip from the NHA.


            To prove the foregoing statement of facts, a copy of the letter of Osias V. Recio, lawyer of Nelly, dated June 02, 1993, is attached hereto as EXHIBIT “1-Enelyn.”


             After ten (10) years of protracted dispute, Nelly Encelan Garcia filed a Petition for Legalization of Lot Occupancy on 10 February 1998 addressed to the General Manager of the National Housing Authority in Diliman, Quezon City.


            A copy of the same petition is attached hereto as EXHIBIT “2-Enelyn.”


In support of her application for legalization of occupancy of the lot that is now the subject matter of the dispute, Nelly executed an “AFFIDAVIT OF INCOME” on 13 January 2000, a copy is attached hereto as EXHIBIT “3-Enelyn.”


In the same affidavit, Nelly Encelan Garcia stated the following declaration pertinent to this case, to wit:


“2.  That my family and I have been staying in the lot we are applying for since 1989 up to the present;”


In a communication dated 18 June 2000, a document denominated as “PABATID NG LIGALISASYON SA PANINIRAHAN” signed on the same date by Eufemio G. Jacob, OIC, NHA-Rizal, was addressed to Nelly Encelan and Ernesto Paguinto Garcia, informing them that the NHA approved their application for the legalization of their occupation of Lot 01, Block No. 37-A, Phase I of Bagong Nayon II Project having an area of sixty-six (66) square meters.


The same “PABATID” stated that the same parcel was priced at ₱110,880.00 to be paid in fifteen (15) years with a monthly amortization of ₱1,264.21 that must begin in the month of July 2000.


The same “PABATID” stated that for Nelly Encelan Garcia and Ernesto Paguinto Garcia to avail of the same they should come to the NHA office and pay the Legalization fee of ₱2,000.00, Five percent (5%) downpayment of ₱5,544.00, First Monthly Amortization of ₱1,264.21, Notarial/Service Fee of ₱200.00, and Occupancy Fee of ₱2,000.00.   The total amount was ₱11,008.21.


Nelly agreed to the offer and paid the corresponding amount of ₱11,008.21.


Subsequently on 18 September 2009, Nelly E. Garcia signed “CONDITIONAL CONTRACT TO SELL” with the NHA authorized representative Eufemio G. Jacob.


A copy of the same “CONDITIONAL CONTRACT TO SELL” is marked hereto as EXHIBIT “4-Enelyn” in series.


To the “CONDITIONAL CONTRACT TO SELL” was attached a document denominated as “OCCUPANY RULES AND REGULATIONS.”


The provisions of the “Conditional Contract to Sell” that are material to the case at bar are as follows:


5. The VENDEE (Nelly Garcia) is making this purchase for his own use and benefit and not for the use and benefit of another undisclosed party.


The purpose of the sale is to aid the VENDEE in acquiring a house/lot for himself and his dependents and not to provide him with a means for investment, speculation or profits therefrom in a future assignment of his rights herein acquired or the resale of the land, or through rent, lease or subletting to others of the land subject of this contract.


6.  The VENDEE agrees not to sell, alienate, convey, encumber or lease this lot except to qualified program beneficiaries.    Should the beneficiary unlawfully sell, transfer or otherwise dispose of this lot or any right thereto, the transaction shall be null and void.    He shall also lose his right to the land, forfeit the total amortization paid thereon, and shall be barred from the benefits under RA 7279 for a period of ten (10) years from the date of violation.  Likewise, the beneficiary shall abide by the regulations of the respective Housing Program under which, the purpose of the Act is being implemented.


7.   The VENDEE agrees to abide with the occupancy rules and regulations of the VENDOR printed at the back hereof and any violation thereof shall be considered a breach of the conditions of this contract, and shall be subject to the penalty provided for in paragraph 4 hereof.

8.  Title to the subject matter of this contract remains with the VENDOR and shall pass to, and be transferred in the name of the VENDEED only upon the execution of the final deed of sale following the acquisition by the VENDOR of the title to the land.


Even until this year of 2000, defendants Elizabeth Garcia-Brosas and Enelyn E. Garcia lived with their mother Nelly and their father lived with another family.


Enelyn went abroad to work.  At that time, their mother had no income to rely on and Nelly had not paid any amortization.   Enelyn had to work to survive her own children and her mother and help her sister Elizabeth.


Because Nelly had no other children, Enelyn and her mother agreed that Enelyn would remit funds to be paid to the NHA and that Nelly assigned all the rights to Enelyn.  


Enelyn did not think of putting everything in writing because she thought it would be awkward for her to demand of her mother to sign a contract of assignment of rights.


Nevertheless, Enelyn complied with her obligation and remitted funds every month to her mother Nelly aside from some amount for her basic subsistence and the needs of Enelyn’s own children living in the house that is the dispute property at the moment.


For more than a decade of sending money, Enelyn had been confident that the amounts she remitted for the NHA were paid to the NHA.   Enelyn only discovered that her mother did not pay the remitted amounts to the NHA when she learned that Spouses Tagle sued to compel their eviction from their house.


In other words, although verbally, Enelyn and her mother Nelly had a perfected contract that the latter would assign all the rights over the said house, which rights pertained to the rights out of the “Conditional Contract to Sell.”


Perusing the Complaint filed by Spouses Tagle, it alleged that their mother Nelly and estranged father Ernesto P. Garcia executed an instrument denominated “DEED OF ABSOLUTE SALE OF A HOUSE WITH WAIVER AND TRANSFER OF RIGHTS”, and was notarized by their counsel Atty. Ernesto M. Prias on August 30, 2013.


A common exhibit, a copy of the same “Deed of Absolute Sale of a House with Waiver and Transfer of Rights” is hereto marked as EXHIBIT “5-Enelyn” to prove that there is no statement transferring all the rights of Nelly Garcia to Spouses Tagle.


What is explicit in the same “Deed of Absolute Sale of a House with Waiver and Transfer of Rights” is that NELLY E. GARCIA and ERNESTO P. GARCIA did not assign rights but sold ownership to Spouses Tagle.


At this date of August 30 2013, there is no dispute that the ownership of the house and lot covered thereby, which is a parcel of lot at Lot 1, Block 37-A, Phase 1, Bagong Nayon 2 Project, Antipolo City, Rizal, still belonged to the National Housing Authority.


Alarmed by this, Enelyn consulted her lawyer, Atty. Berteni Cataluña Causing, and immediately wrote the NHA in a letter dated April 25, 2014.  A copy of the same letter is attached hereto as EXHIBIT “6-Enelyn,” EXHIBIT “6-Enelyn-A” up to EXHIBIT “6-Enelyn-O.”


The content of the same letter stated:


On behalf of pro-bono clients Elizabeth Garcia Brosas and Evelyn Garcia, we write to express their opposition to the anticipated application of Spouses Ronnie M. Tagle and Anie T. Tagle to transfer the rights over a parcel of land to the same spouses from Nelly E. Garcia, the mother of Elizabeth and Enelyn. At the same time, the clients are applying that the same rights shall be instead transferred to them as direct heirs or descendants of Nelly E. Garcia, or as new awardees upon the rule of equity of the incumbents or hereditary heirs.

The same rights pertain to a parcel of land described as Lot 1, Block 37-A, Phase 1, Bagong Nayon, consisting of 66 square meters, which land was awarded by the National Housing Authority (NHA) to the mother of the clients of the undersigned.

As children, the clients have been giving money to their mother to pay for the same land’s amortization but their prodigal mother incurably seized by drug addiction.

The clients only got the shock of their lives when they were served a summons by the barangay to attend the hearing called by the barangay and know in that barangay hearing that Spouses Tagle were showing them a deed of absolute sale dated August 30, 2013 signed by their mother Nelly E. Garcia and father Ernesto P. Garcia for the sum of Three Hundred Thousand Pesos (₱300,000.00) in favor of Spouses Tagle over the same lot.

The clients cannot accept this sale primarily because they had an agreement with their mother that Enelyn shall remit money to their mother to be paid for the amortizations of the abovementioned lot payable to the National Housing Authority (NHA). And when fully paid, the same lot shall be transferred into the name of Enelyn.

The clients can submit copies of evidence of these remittances to prove the monies sent to their mother.

Additionally, clients Elizabeth and Enelyn have been the actual occupants of the same parcel of land and the improvements therein since the same lot was awarded to their mother and have already had constituted the same as their family homes. Their mother has never been living in the same lot. The fact that the same has already been constituted as their Family Code forbids displacement of all members of the family home, including the children.

And the biggest reason for the opposition of the clients is the fact that their mother committed major violations that are grounds for cancellation of the contract of awards of the NHA with their mother.

These violations so far known by clients are:

1.      Acting as a “DUMMY AGENT” of Spouses Ronnie M. Tagle and Anie T. Tagle;
2.      Giving false statement in paying the amount of ₱263,993.49 representing the same to be her own money paid when in truth it was the money of Spouses Tagle;
3.      Giving false statement in representing that she was a single mother when in truth she was already married to Ernesto Paguinto Garcia, the father of herein clients; and
4.      The mother of the clients has not actually occupied the said lot awarded to the mother.

There may be other violations that may be known.

Nevertheless, some of the proofs that the mother acted herself as the dummy of Spouses Tagle are: (1) ANNEX “A” – Deed of Absolute Sale of a House with Waiver and Transfer of Rights dated August 30, 2013; (2) ANNEX “B” – A copy of the Statement of Account whereby a big amount of ₱ 263, 993.49 was paid dated August 19. 2013; (3) A copy of the receipt for the payment of such big amount, which copy is in the hand now of their mother; (4) ANNEX “C” – A copy of “Patawag Bldg. 01” (subpoena) issued by the Tanggapan ng Lupong Tagapamayapa to attend the barangay proceeding on 24 September 2013, at 10:30 am., for a case of “Pagpapaalis sa Nabiling Bahay” filed by Ronnie Tagle of Sitio Tanglaw Barangay San Isidro, Antipolo City; (5) ANNEX “D” – A copy of the letter of demand sent by the lawyer of Spouses Tagle to client Elizabeth Brosas to vacate from the house standing on Lot 1, Block 37-A, Phase 1, Bagong Nayon 2, Barangay San Isidro, Antipolo City; (6) ANNEX “E” – A copy of Complaint for unlawful detainer, “Spouses Ronnie M. Tagle and Anie T. Tagle vs. Elizabeth Brosas, “ Civil Case No. 090-13; and (7) ANNEX “F” – A copy of the Summons issued by the Municipal Trial Court in Cities of Antipolo.

The deed of absolute sale having been executed on too close a date of August 30, 2013 compared to the date of payment of ₱263,993.49 as August 19, 2013 reveals a clear intention of the minds Spouses Tagle and the mother of the clients that the latter was to act as the dummy of the former. This theory is further bolstered by the fact that the mother of the clients has had no money or no source of income to be able to pay such huge amount of ₱263,993.49. Also supporting this theory is the fact that the records of payments of amortization show that the mother of the clients failed to pay for almost two decades.

The acts of sending a demand letter, filing a case with the barangay and the court demonstrate the truth that Spouses Tagle used as dummy the mother of the clients.

These acts defeat the purpose of the law to award NHA lots only to the benefits of the awardee and to their hereditary heirs.

These also constitute false statement, as well as the declaration that she was single when in truth she was already married. A copy of the marriage certificate of Nelly Garcia aka Nelia with Ernesto P. Garcia is attached here as ANNEX “G”.

Moreover, execution of the deed of sale with waiver violates the consent rule of the NHA: that it must be secured first before an awardee can be allowed to sell the awarded lot to a person not an awardee.

Considering these flagrant violations and the fact that clients Elizabeth Garcia Brosas and Enelyn Garcia are hereditary heirs of Nelly  Garcia and the fact that they have been the actual occupants of the house on Lot 1, Block 37-A, Phase 1, Bagong Nayon 2, the clients hereby formally apply to be the awardee of the same lot, either as new or as replacement of their mother’s right, whichever is feasible or allowed under the NHA rules.     

Hoping for the prompt action.


The undersigned counsel followed up this April 25, 2014 letter with another dated 5 June 2014, where defendants Enelyn and Elizabeth reiterated their protest against the act of their mother Nelly selling the property to Spouses Tagle.


The NHA, through Engr. Lorenzo D. Pineda, Officer-in-Charge of NHA-Rizal, wrote Attorney Causing acknowledging his 05 June 2014 letter petitioning for the revocation of the award unto Nelly Garcia and opposition to the transfer of rights to spouses Ronnie M. Tagle and Annie T. Tagle, as well as informing that the same petition has been referred to the Legal Department of the NHA for further review and evaluation.   A copy of this letter is marked hereto as EXHIBIT “7-Enelyn.”


It is very clear that defendant Enelyn has brought to the NHA the issue of possession over the awarded lot, which is the same that is at the center of this controversy.


Because of the protest lodged by defendants Enelyn and  Elizabeth, the NHA ordered an ocular inspection and its personnel, Conchita F. Recarro”, conducted the same and submitted the document denominated “OCULAR INSPECTION REPORT,”  a copy thereof is marked hereto as EXHIBIT “8-Enelyn.”


In the same “Ocular Inspection Report”, it is stated there that the date of inspection was July 1, 2014.


In the same “Ocular Inspection Report,” the NHA staffer wrote her findings as follows:


Based on historical data accounted (for), the actual owners of the abovementioned parcel of land are spouses Nelly Encelan Garcia and Ernesto Garcia (both as still alive) who are also considered as re-awardees by purchasing the lot in instalment basis upon cancellation of award from the original owner, Conchita Navarro.  Nelly Garcia (mother), Elizabeth Garcia Brosas and Enelyn Garcia (daughters) and grandchildren have been the actual occupants of the said lot situated in Block 37-A Lot 01, Phase I, Bagong Nayon II Resettlement Project, Antipolo City.


During the interview with Nelly Garcia conducted on 01 July 2014, she narrated that being the legal owner with the consent of her husband Ernesto Garcia), she sold the property to spouses Ronnie Tagle and Anie Tagle as manifested by the Deed of Absolute Sale of a House & Lot with Waiver and Transfer of Rights signed by both parties in the amount of Php300,000.00.   The selling of the afore-stated property in question was done without the Authority’s knowledge and consent.   The Authority only intervened when conflict got aggravated.


Ronnie and Anie Tagle summoned the actual occupants to vacate the parcel of land and take over the rights of Nelly Garcia over the lot awarded to the latter.   Elizabeth and Enelyn, daughters of Nelly, ignored the summons and refused to leave.   Furthermore, Nelly said that she’s willing to move out of the said property despite the strong opposition of her daughters.  Nelly’s daughters countered and sought for legal counsel about their rights over the property as hereditary successors/heirs.



The protest of Enelyn and Elizabeth has remained unacted upon even until the writing of this Position Paper.


This means that until now, the NHA has not resolved the issue of possession over the real property being raised by defendants Enelyn and Elizabeth.


By the “Conditional Contract to Sell” executed by Nelly Garcia and the “Occupancy Rules and Regulations” attached thereto, NELLY GARCIA IS PROHIBITED FROM SELLING THE SAME AWARDED PROPERTY and the same property can only be re-awarded to another qualified beneficiary.


The Spouses Tagle can never be qualified to be awardees of the same NHA lot because they own a house of their own located at Sitio Tangalaw, Barangay San Isidro, Antipolo City.


            Meanwhile, defendant Enelyn maintains her stand that she has not received any demand letter from Spouses Tagle or their lawyer Atty. Prias.


            Defendant Enelyn also maintains her stand that she has not received been summoned to the Tanggapan ng Lupon ng Tagapamayapa for this case.


            The fact of non-compliance with the demand requisite and non-exhaustion of remedies before the Lupon ng Tagapamayapa makes the instant complaint clear to be dismissible.


            National housing program is clothed with public interest.  Private persons are prohibited from circumventing the same.



The Discussions of the Positions



Lack of jurisdiction
over the subject matter



            The Honorable Court has no jurisdiction over the instant case. 


            This is because the exclusive power to determine right of possession to lots and houses awarded or to be awarded by the National Housing Authority (NHA) belongs to the NHA alone.


            This exclusive authority of the NHA to decide right to possession over awarded lots stemmed not only from laws, including Republic Act 7279, but mainly from the CONDITIONAL CONTRACT TO SELL signed by Nelly Garcia with the NHA.


            It settled. The law between the parties in a contract is the content of the contract itself.


            But in law, it created NHA to exclusively determine right to possession as awardees to its beneficiaries.


            Being vested with the exclusive authority to determine right of possession to NHA lots, the NHA is deemed also to be an expert in this field and all courts must defer to it under the legal principle of primary jurisdiction, not only because of lack of jurisdiction.


            It is therefore clear that the Honorable Municipal Trial Court in Cities of Antipolo has no authority to determine the rights and obligations to possession over lots under the jurisdiction of the NHA.


            In the instant case, there is no dispute the parcel of lot involved—Lot 1 of Block 37-A, Phase I of Bagong Nayon 2 Resettlement Project in Antipolo City—is still within the jurisdiction of the NHA because it has not yet issued a deed of absolute sale in favor of anybody and the stage is still in the issue of award.


            Jurisprudence settled the issue that NHA has the exclusive authority as to who should be awarded the lots of the NHA and the courts have no authority to inquire thereto, unless the title to the awarded lot has been transferred to the awardee and the question is the nullity of the title.


            In National Housing Authority vs Soledad C. Pascual, GR No. 158364, November 28, 2007, the Supreme Court said, citing the case Raymundo vs People’s Homesite and Housing Corp., to wit:


As to the propriety of the filing of the Complaint before the trial court, the Court agrees with petitioner that it has the sole power to dispose of lands under its administration.  The ruling of this Court in Raymundo v. People’s Homesite and Housing Corporation still stands that:

3. The power to dispose of the lands placed under the administration of the Philippine Homesite and Housing Corporation (now National Housing Authority) is lodged in said body.   There is no provision of law authorizing courts to review decisions of respondent PHHC and to take cognizance of actions to annul awards of sale of any other action made by it pursuant to the authority granted it by law.   If the courts are to take cognizance of cases involving errors or abuse of power exercised by the respondent PHHC, the remedy would be by means of an action for certiorari or prohibition to set aside the orders or decisions of the respondent, and not a direct action for specific performance as the one instituted in this case. But this special civil action would not lie unless there is an allegation of abuse of discretion for lack of jurisdiction.


            In the instant case, it is very clear that the house and lot concerned were awarded to Nelly and the same have not been paid up and whose title therefor has not been transmitted yet by the NHA to Nelly.  Jurisdiction over the lot awarded to Nelly is therefore still with the NHA.


            It is also very clear that Spouses Tagle executed a deed of absolute sale with Nelly when the same house and lot have not yet been transferred by the NHA to Nelly.


            This therefore reduced the issues into whether or not Spouses Tagle have the right to be awarded the same lot and house they claimed to have bought from awardee Nelly.


            It is also undeniable that defendants Enelyn and Elizabeth have contested the said sale by their mother to Spouses Tagle by filing a petition for the revocation of the award given to Nelly and an opposition to the application of Spouses Tagle for the approval of their deed of absolute sale.


            Because the question at the bottom is whether or not the NHA can award the contested property to Spouses Tagle and that the right of possession can only come from the award, it stands to reason that this is a matter only the NHA has the authority to decide.


            Up to this point, by reason of the law, there is no possessory right to be talked about in favour of Spouses Tagle.  In subtle worlds, it is premature.


            Moreover, the “Conditional Contract to Sell” signed by Nelly with the NHA is the law between Nelly and the NHA.


            The pertinent provisions of the “Conditional Contract to Sell” states as follows:


5. The VENDEE (Nelly Garcia) is making this purchase for his own use and benefit and not for the use and benefit of another undisclosed party.


The purpose of the sale is to aid the VENDEE in acquiring a house/lot for himself and his dependents and not to provide him with a means for investment, speculation or profits therefrom in a future assignment of his rights herein acquired or the resale of the land, or through rent, lease or subletting to others of the land subject of this contract.


6.  The VENDEE agrees not to sell, alienate, convey, encumber or lease this lot except to qualified program beneficiaries.    Should the beneficiary unlawfully sell, transfer or otherwise dispose of this lot or any right thereto, the transaction shall be null and void.    He shall also lose his right to the land, forfeit the total amortization paid thereon, and shall be barred from the benefits under RA 7279 for a period of ten (10) years from the date of violation.  Likewise, the beneficiary shall abide by the regulations of the respective Housing Program under which, the purpose of the Act is being implemented.


7.   The VENDEE agrees to abide with the occupancy rules and regulations of the VENDOR printed at the back hereof and any violation thereof shall be considered a breach of the conditions of this contract, and shall be subject to the penalty provided for in paragraph 4 hereof.

8.  Title to the subject matter of this contract remains with the VENDOR and shall pass to, and be transferred in the name of the VENDEED only upon the execution of the final deed of sale following the acquisition by the VENDOR of the title to the land.

              
            Concededly, on whether Nelly committed violations of any of these provisions is a matter only the NHA can determine.


            By reason of the “Conditional Contract to Sell”, the Honorable Court therefore has no authority to determine whether Spouses Tagle have the right to the award and from the award the right of possession can be determined.



Granting MTCC has jurisdiction,
still the plaintiffs have no right


           
            Granting arguendo that the Honorable Court has jurisdiction, the plaintiffs-spouses have no right of possession to speak about so that the instant complaint for unlawful detainer must be dismissed outright.


            This is because the “Conditional Contract to Sell” itself says of prohibition for Nelly to sell the property and says clearly that the act of selling the same is expressly declared as “null and void.”


            The Ocular Inspection Report of the NHA states that the “the selling of the afore-stated property in question was done without the Authority’s knowledge and consent.   The Authority only intervened when conflict got aggravated.”  (See Exhibit “8-Enelyn”)


            For clarity, let the pertinent provisions be restated:


5. The VENDEE (Nelly Garcia) is making this purchase for his own use and benefit and not for the use and benefit of another undisclosed party.


The purpose of the sale is to aid the VENDEE in acquiring a house/lot for himself and his dependents and not to provide him with a means for investment, speculation or profits therefrom in a future assignment of his rights herein acquired or the resale of the land, or through rent, lease or subletting to others of the land subject of this contract.


6.  The VENDEE agrees not to sell, alienate, convey, encumber or lease this lot except to qualified program beneficiaries.    Should the beneficiary unlawfully sell, transfer or otherwise dispose of this lot or any right thereto, the transaction shall be null and void.    He shall also lose his right to the land, forfeit the total amortization paid thereon, and shall be barred from the benefits under RA 7279 for a period of ten (10) years from the date of violation.  Likewise, the beneficiary shall abide by the regulations of the respective Housing Program under which, the purpose of the Act is being implemented.


7.   The VENDEE agrees to abide with the occupancy rules and regulations of the VENDOR printed at the back hereof and any violation thereof shall be considered a breach of the conditions of this contract, and shall be subject to the penalty provided for in paragraph 4 hereof.

8.  Title to the subject matter of this contract remains with the VENDOR and shall pass to, and be transferred in the name of the VENDEED only upon the execution of the final deed of sale following the acquisition by the VENDOR of the title to the land.


            In Section 5, the purposes of the award to Nelly were stated that it is to aid the awardee for own use and benefit and not an undisclosed party.   Here, Spouses Tagle were considered as undisclosed party when Nelly signed the deed.


            In the same Section 5, it is clearly stated that the award was not to provide the awardee “with a means for investment, speculation or profits therefrom in a future assignment of his rights herein acquired or the resale of the land, or through rent, lease or subletting to others of the land subject of this contract.”


            This is very clear to be inconsistent with the sale by Nelly to Spouses Tagle.  She cannot profit from the lot awarded to her.


            In Section 6, the “Conditional Contract to Sell” bound Nelly not to sell the same and if she did, the act of selling will be “null and void.”


            In Section 7, Nelly bound herself to comply with Occupancy Rules and Regulations.  Then, the first rule in the same states that Nelly must observe and strictly comply with the terms and conditions of the “Conditional Contract to Sell,” including not to sell the awarded lot.  It follows that the act of Nelly violated the condition not to sell the same.


            In Section 8, it is explicit that the title to the lot remains with the NHA.  If that is so, then Nelly has no authority to sell the same lot to Spouses Tagle.


            With these, it is very clear that Spouses Tagle did not earn any right of possession over the lot.



No demand
             

There was no demand to vacate made by the plaintiffs upon Enelyn Garcia.  So that this case must be dismissed even on this ground.


It is elementary that the right of action to file an unlawful detainer begins with the receipt of the notice of termination of the right of possession and demand to vacate. 


If there is no demand, it means that the contract of possession has never been terminated.


And if the contract of possession has never been terminated, it means that there is no unlawful detainer of the real property.



No certificate to file action


            It is basic in the Local Government Code of 1991 or RA 7160 that all ejectment cases must pass through the Barangay Lupon if the parties are natural persons.


            If this is not complied with, then the court cannot have jurisdiction over the ejectment case.


In this case, it is undisputed that there is no certificate to file action in so far as defendant Enelyn Garcia is concerned.  It is also undisputed that the parties are natural persons and not juridical persons.


Ergo, the instant unlawful detainer case must be dismissed even on this ground alone.



The Prayer


WHEREFORE, it is respectfully prayed that the instant Position Paper be ADMITTED and the instant complaint for unlawful detainer be DISMISSED.


Other reliefs just and equitable are also prayed for. 24 March 2015 Manila for Antipolo City.


CAUSING SABARRE CASTRO Pelagio
Mailing Address: Unit No. 1, # 2368 JB Roxas St., corner Leon Guinto St., Malate, Manila
Email addresses: berteni.causing@gmail.comtotocausing@yahoo.com; Tel/Fax: 3105521


By:


BERTENI CATALUÑA CAUSING
IBP No. 949537/ 06-01-2015 / Manila IV
PTR No. 3834103 / 06-01-2015 / Manila
Roll No. 60944/MCLE No. IV – 0007338 issued 10 August 2012

Cc:
ATTY. ERNESTO M. PRIAS
Counsel for Spouses Tagle
Room 202, J & F Building, Kingsville Arcade, Masinag,
Barangay Mayamot, Antipolo City, Rizal Province


























x-----------------------------------------------------------x
Republic of the Philippines                                              )
City of Manila                                                                      )SC

Verification

            I, ELIZABETH GARCIA-BROSAS, a resident of Lot 1, Block 37-A, Phase I, Bagong Nayon 2 Resettlement Project, Antipolo City, under oath, hereby depose and state:
           
1.     I am authorized to sign this verification in this case through a Special Power of Attorney (SPA) executed by Enelyn E. Garcia submitted to the Court and in pursuance thereof I caused the preparation of the foregoing Position Paper;

2.     The contents therein are true and correct of my personal knowledge and based on authentic records;

IN WITNESS WHEREOF, I sign this Verification 4 May 2015 in Manila.



ELIZABETH GARCIA-BROSAS
___________ ID No. ________


SUBSCRIBED AND SWORN TO BEFORE ME on ___ May 2015 in Manila, affiant exhibiting the competent evidence of identity stated below her name above.

Doc. No.:       ____;
Page No.:      ____;
Book No.:     ____;

Series of 2015.


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