LEGAL OPINION RE CONFLICTING CLAIMS IN THE KORONADAL CITY PUBLIC MARKET [STALL NO. 13]

Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742

LEGAL OPINION NO. ________

DATE : 15 November 2013


TO : CYRUS JOSE J. URBANO, CPA, MBA
City Administrator

RE : As Stated
________________________________________________________

Kanami Koronadal!

This is with reference to your letter dated 12 November 2013 requesting for a legal opinion apropos the letter of Atty. Raul O. Tolentino asking for the cancellation/revocation of the lease contract which was entered into by John Abella with the City Government of Koronadal.

It appears that on 14 January 2013, a Contract of Lease was entered into between the City Government of Koronadal, as the lessor and John Abella, as the lessee, covering Stall No. 13, Supermarket Building 1, Ground Floor of the City Public Market of this City. The lease has duration of two (2) years renewable upon its expiration unless revoked in accordance with the Local Revenue Code of Koronadal City. However, it appears from the record of the Licensing Office that Agencia Niña, Inc. under the business name, Golden Drug Store had been actually occupying the leased subject property.

Based on the foregoing facts, it can be gleaned that John Abella subleased the said property to the Agencia Niña, Inc., /Golden Drug Store.

However, note must be taken that the aforementioned contract specifically prohibits the subleasing of the above-mentioned property to any third person which provides:

x x x

“6. That it shall be inviolable [sic] violation of this contract to sublease, mortgage, sell, transfer or in any manner allow people to conduct business in the said stall/room other than the lessee himself/herself”

x x x

Also, the Civil Code of the Philippines particularly Article 1649 expressly provides, inter alia, that:

x x x

Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation to the contrary."

x x x

Applying the above provisions to the case under consideration, it follows that the subleasing could not have been valid there being no proof that the City Government of Koronadal, the lessor, gave its express consent to the substitution of Agencia Niña, Inc.,/Golden Drug Store in lieu of John Abella as lessee. In view of such violation of the provision of the lease contract or for failure to comply with the terms/ conditions thereof, the lessor has a right to revoke/cancel/terminate the contract of lease with the lessee John Abella and to take physical possession of the subject property.

Section 5, B.04. Administrative Provisions.- of the City Market Ordinance provides that:

x x x

“Dummies, sublease of stalls/rooms- In any case the person registered to be the holder or lessee of a stall room/room in the public market, is found to be not the same person who is actually occupying said stall/room, the lease of such stall/room shall be cancelled, if upon investigation such stall holder shall be found to have subleased his stall/room to another person or to have connived with such person so that the latter may for any reason, be able to occupy the said stall.”

x x x

Nonetheless, it does not follow that the actual occupant Agencia Niña, Inc., /Golden Drug Store be permitted or be placed as lessee.

Anent thereto, the undersigned, consequently, recommend that the subject property be DECLARED VACANT AND REOPENED FOR APPLICATION FOR LEASE.

Please be guided accordingly.



In public service,




ATTY. EUFEMIO A. SIMTIM, JR., REA, REB
City Legal Officer




JACQUELINE MAE ESTORNINOS-SAQUILABON, LLB
Legal Assistant II


c.c
BPLS
CMO
City Market Committee