LEGAL OPINION NO. 11-18-2010

Republic of the Philippines
Province of South Cotabato
City of Koronadal
CITY LEGAL OFFICE
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LEGAL OPINION NO. ________


DATE : November 18, 2010

TO : ENGR. RUEL C. TIANCHON
Office of the City Engineer
City of Koronadal

RE : Application for Demolition Permit of Robert V. Dizon

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Respectfully returned to the City Engineer, City Engineering Office, City of Koronadal, his within request for opinion on whether the City Engineer may issue a Demolition Permit in as much as an Adverse Claim and a Notice of Lis Pendens have been annotated on the TCT-T-13703.

The undersigned are of the opinion that the City Engineer may grant demolition permit being applied for subject to the conditions set forth under the National Building Code and related laws.

While the issue of ownership is one of a justiciable character, the determination of which is lodged with the courts, the matter of the issuance of a demolition permit is well within the authority vested by law upon the building official. Unless prevented by a temporary retraining order (TRO) or a writ of injunction, the exercise of such authority is warranted as long as the conditions for the issuance of a demolition permit are met and satisfied, especially so when the property involved poses hazards to the public.

A notice of lis pendens is governed by Rule 13, Section 14 of the Revised Rules of Court, which states:

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“Sec. 14. Notice of lis pendens. — In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded.” (Emphasis added)

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A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires interest over said property does so at his own risk, or that he gambles on the result of the litigation over the said property. The filing of a notice of lis pendens charges all strangers with notice of the particular litigation referred to therein and, therefore, any right they may thereafter acquire over the property is subject to the eventuality of the suit. Such announcement is founded upon public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation. (LU vs. LU YM, SR., G.R. No. 153690, 4 August 2009). The Honorable Supreme Court has likewise held, thus:


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“The filing of a notice of lis pendens has a two-fold effect: (1) to keep the subject matter of the litigation within the power of the court until the entry of the final judgment in order to prevent the final judgment from being defeated by successive alienations; and (2) to bind a purchaser, bona fide or not, of the land subject of the litigation to the judgment or decree that the court will promulgate subsequently.”

This Court has interpreted the notice as:

“The notice is but an incident in an action, an extrajudicial one, to be sure. It does not affect the merits thereof. It is intended merely to constructively advise, or warn, all people who deal with the property that they so deal with it at their own risk, and whatever rights they may acquire in the property in any voluntary transaction are subject to the results of the action, and may well be inferior and subordinate to those which may be finally determined and laid down therein. The cancellation of such a precautionary notice is therefore also a mere incident in the action, and may be ordered by the Court having jurisdiction of it at any given time. And its continuance or removal-like the continuance or removal of a preliminary attachment of injunction-is not contingent on the existence of a final judgment in the action, and ordinarily has no effect on the merits thereof.” (Heirs of Sy Bang vs. Sy, G.R. No. 114217, 13 October 2009)

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A notice of adverse claim, on the other hand, is nothing but a notice of a claim adverse to the registered owner, the validity of which is yet to be established in court at some future date, and is no better than a notice of lis pendens which is a notice of a case already pending in court. (Acap vs. Court of Appeals, G.R. No. 118114. December 7, 1995)

Unless therefore a TRO or a writ of injunction is issued by the court, the building official is not prohibited by a mere notice of lis pendens or of an adverse claim from issuing a demolition permit, provided that all the requirements are complied with.

Yours truly,



[Sgd.]ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer


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[Sgd.]ALEXANDER A. ALCAZAR
Legal Assistant II


Cc:
Office of the City Mayor
Office of the City Engineer
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