Who is Atty. Jayr?

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Atty. Eufemio A. Simtim, Jr. or Atty. Jayr is a licensed lawyer in the Philippines. He is a Partner at Simtim Gunay Viejo Sales Sobrejuanite Law Group, but he does only virtual consultations as he is presently out of the country. He has been in the litigation practice in most part of his legal career and has worked in the academe, in the government and in the corporate world. He also passed the PRC licensure exams for Real Estate Broker and for Real Estate Appraiser (Rank No. 5). He presently runs his Youtube Channel, @yourlawyer, providing free legal information and updates.

Friday, May 20, 2011

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:

x x x


“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)

x x x


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:


x x x


“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)

x x x


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


- and -


[Sgd.]ALEXANDER A. ALCAZAR
Legal Assistant II


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

Sunday, April 10, 2011

WARMING UP THE SENIORS FOR GLOBAL CHALLENGES

ATTY. EUFEMIO A. SIMTIM, JR.
Mindanao State University
General Santos City
Maalab Seniors’ Night


A pleasant evening to everyone! Magandang Gensan! Kanami Koronadal!

Last week, in one ordinary evening, I opened my Facebook Account. I noticed that I had one new friend’s request pending, over and above some fifty (50) or so other pending requests. Without entertaining any second thought, though, I accepted it. That was the first request. After a short while, he sent me a private message, introduced himself as the president of the Senior’s Club of MSU-GSC, and asked me if I could be the guest speaker for the Seniors’ Night. That was the second request. Mindful of my unpredictable work schedule, I left the second request pending. While I gave an affirmative reply later, still, I was not certain about this engagement until last night.

I have always talked before a crowd -- different crowds, large and small; and I never had difficulty organizing and conveying my thoughts. But when I was preparing for my speech, for tonight’s occasion, I had a hard time in gathering, condensing, tacking and keeping my thoughts together, having to summon my immediate and remote past, including my memories of Mindanao State University, so as to be able to prepare an inspiring message I am now tasked to give you. It was not as easy as I thought it would be - as I realized that this one must be special and extraordinary. I have so much in mind to tell you, but I am bounded by the very limits of time to put across the crux of the message I wish to deliver.

Delivering a speech such as this is a great responsibility; so I thought - deeply - until I cast my mind back to our own Seniors Night, several years back. Reflecting thereon has helped me enormously in preparing for this one, because it turns out that I cannot even remember who our guest speaker was – much more, a single word from him or her. And it eventually dawned upon me that what we had was not a Seniors’ Night, but a Graduation Ball. I learned that the former has taken the place of the latter. Nevertheless, this liberating discovery enables me now to proceed without any fear that I might inadvertently influence you to abandon promising careers in business, the law or politics for the scatterbrained delights of staying up late at night – keeping yourselves busy with Facebook.

Amid the distressing plight of our Mother Earth unfolding before our very eyes – poverty, unemployment, underemployment, mismatch of jobs, social unrest, civil disorder, war, calamities, stories of greed and corruption, almost everywhere -- I am now tasked by my new Facebook friend to warm you up for the Global Challenge, but I am more inclined to do otherwise, that is, to cool you down. Because I know, you have been much warmed up – being fresh from the rigorous process of completing your academic requirements.

Thus, I can dispense with discussions on success, because before me are warm bodies representing success itself. Yes, as you soon would be confirmed graduates of a premiere university, you yourselves are the embodiment of success. Proud to be MSUans!

Looking back, however, to the time when you left the portals of your respective alma maters and had set foot in Mindanao State University, let me ask you, my friends, can you now say that you already have reached that goal you have set way back then, if any? Only you can provide the answer.

When I finished high school, I told myself – I shall become a lawyer. So, when I finished college, I knew, I haven’t reached my goal yet, as I still needed to go to a law school. This is where the setting of goal comes into play. Whether there is still something left for you to work on after earning your degree or there is a need for you to set new goals to achieve, and that is to include job-hunting.

As I always believe, for one to move forward, he must have an ultimate goal in life. Like fishermen out in the sea at night, your goal will serve as your North Star - your guide - wherever you may go, such that all your actions must be geared towards attaining that goal. So that when you’re lost or when things seem to be in disarray and confusing, you just have to look up to the sky, follow your North Star, and find your way back to the right path.

Perhaps, today, while some of you are filled with contentment, some are still at a quandary because, to this day, they have not yet identified the journey they should take. But then, it is never too late. In that respect, I urge you to find something that you are really passionate about as this shall give you a strong sense of purpose in life and it is always a big part of happiness. To do what you want to do. And in order to do that, you need to be honest with yourself.

A prominent person once said that “[t]he way to be happy is to like yourself. That is the real reason not to lie or cheat or turn away in fear. There is that old joke, not very funny though, which goes ‘no matter where you go, there you are.’ That’s true. The person who you are with most in life is yourself and if you do not like yourself, you are always with somebody you do not like.”

When I was about to finish high school, I told my parents that I would take up AB Political Science, preparatory to taking up Law. My father registered an objection at once, because it would take time, hence, to him, it was not practical; besides, we had no money to finance my enrolment in a law school. He wanted me instead to become a teacher like him and my mother. I realized that we were truly then economically challenged and I began to think that, maybe, I was dreaming too big. Besides, I started to think and doubt my capacity to hurdle the challenge of becoming a lawyer. I was then a guiltless and gullible lad, barely 17 years old, frail, clueless, who was totally foreign to that field. But I was very ambitious and relentless!

I insisted and ratiocinated that, while I had the highest regard to the teaching profession, I had to try something new, and becoming a lawyer was indeed something novel for a family like ours. The tide turned into my favor, and my father, though still mindful of our lowly station in life, but who had always been compassionate and understanding, threw his full support towards the achievement of my ambition. My family supported me in every step of the way.

My friends, as another prominent person had said, you have to find the courage to do things you are not ready to do. Doing something you are not ready to do is never comfortable. But in pushing through this discomfort, you will learn a lot more about yourself. You will learn you can do something you never thought or imagined you could do, or you will learn where your limits are. Either is valuable. It is important to push through that uneasiness because that is how you really grow and you really reach for your dreams. Do not be intimidated.

When I entered the university, all I knew was that I wanted to become a lawyer; scarcely did I know that I would be dwelling so much with history, one of the subjects that I liked the least and with which I felt I was barely prepared, as my memory was not serving me so well. I found myself struggling so hard to compete with my classmates in college, who generally had better background in world history; I had to toil - and to toil hard. Not even I would have guessed that eventually, I would land at the top, not only of the class, but of the entire university graduates, and would lead the Oath of Loyalty on our graduation.

When I took up Law, I had no idea what was in store for me. I was so clueless, even at the time when I took the entrance examination and appeared before a panel interview. My contemporaries were sons and daughters of influential people – politicians, government officials, judges, lawyers, doctors - or by themselves and in their own right were influential. But I told myself, “If God is with me, no one can stop me!” Who would have thought that on graduation, I would again land at the top of the class!

But to finish Law and to hurdle the Bar Examinations were two different things. The Bar Examinations truly was the hardest examination one would ever take. I was, however, much elated and grateful, learning that there were people who supported me and helped me, not only in knocking the heaven’s door, but in storming the heaven itself with prayers, at the time when I was taking the Bar Examinations.

Upon admission to the bar, I took the road less travelled by new lawyers. I joined a known law firm, went into active litigation, acting as private prosecutor at one time and as a defense counsel at another, and argued against seasoned as well as shrewd lawyers, and pleaded before the majesty of the court.

Then came the time that another challenge confronted me, totally new for me; that was, to join the government service as the Chief Legal Counsel of the City of Koronadal. Whether I like it or not, accepting the offer would entail an immersion into the world of real politics, which used to be a “no-no” for me. But again, there lies the challenge, and the opportunity to grow and to enrich my knowledge and experience, and eventually, to expand my horizon. I discovered that running a city is just like running a little republic. As the City Legal Officer, I have been confronted by insurmountable legal concerns coming from different fronts -- peace and order, environment, taxation, human rights and social welfare, education, poverty alleviation, agriculture and food supply, infrastructure, transportation, procurement, human resource, legislation, so on and so forth.

The bottom line is that, in all these things that I have gone through, I was not ready at all; I did not know what was ahead, but along with the new challenge and experience, I learned, got myself prepared and looked forward with enthusiasm to further challenges in life.

So, this I would like to tell you, my dear soon-to-be Facebook friends: Never be afraid to take up new challenges in your life. After your graduation, you would be charting once again your future, you own destiny - another chapter of your life. The step that you would take from there, would further define who you would be. So, take that step that would make you the person you want to become. You alma mater can do great things, through you. So make those great things happen.

As Margaret Spellings, Former U.S. Secretary of Education, would put it, “it's easy to get caught up in life's routine. Take time to pause and make sure that you're living life and life isn't living you. Have a plan, but don't be afraid to improvise. Get off the beaten path. Explore the detours and back roads. But don't be in such a hurry to get where you're going that you miss some amazing scenery along the way.”

I was nervous when I started with all those endeavors — just as many of you are nervous about the careers you're about to begin. But just like Peggy Noonan, the pen behind the speeches for President Reagan, it is but normal to have that three-stage reaction whenever we are confronted with new things, new tasks, and new responsibilities. At first, we would hope that nobody figures out how stupid we are. After a while, we would realize, “Hey, I'm as smart as everyone else.” And later, we would realize that we are now the ones in charge!

That same three-stage reaction has found equal application to me no matter where I have worked. And like anyone else, it may be the defining recurrence of my life, too, and the same reaction that you will have no matter where you choose to ply your trade.

And so, MSU-GSC Maalab Senior Class of 2011, tonight, I've got some news for you, too: You are in now charge!

Understand that whatever else may fail you, whatever bad luck or failure may befall you, your personal integrity - your dignity - is always in your own hands and can never be taken from you. I am sure pretty well that your Alma Mater has equipped you with the necessary weapons to face the different adversities in life and has instilled in you the moral foundation necessary to combat the tests and temptations along the way.

No matter what you do in life, do not forget to find some way to give back. The impact of that choice will not only improve the lives of others, it will enlarge and enrich yours as well. I am talking about the broad concept of social responsibility.
Finally, be grateful for all the blessings you received from the Almighty and pray for His continued guidance and providence all the time - and I mean it, ALL THE TIME.

That is all I have to tell you. So, I urge you now to go and get started on all of the successes and failures and all of the other grand things that you want to do in your life. But remember this: When in the course of some competition, you come in dead last, do not forget to smile for the cameras -- And be sure along the way to become so proud of yourself, that you have done what you have wanted and that you have done it the best way you can; so you can come home and say to yourself and to us, with pride, "It was really great and brilliant."

Congratulations, in advance, MSU-GSC Batch 2011! Mabuhay kayong lahat!

Brief Reflection on the Recently Held National Convention of Lawyers

It was the first time that I attended the IBP National Convention of Lawyers. If asked what said event has remarkably achieved in as far as I am concerned, I could say that it has successfully brought back the burning passion in me as a member of the bar, more than the chance visits we paid to some spots in Subic.

The challenges that beset me in the profession have been enormous, such that, in every step of the way, I had to reckon with intricate circumstances and crossroads,offering from complex options to none. A lawyer, imperatively, has to rise above all of these challenges. Now, the resolve is there - rekindled - to confront all the challenges with adherence to the sworn obligation as an officer of the court and a priest of justice. It is hoped, therefore, that the Supreme Court, including all inferior courts, would provide the needed atmosphere to restore the declining public trust in our judicial system.

NOTE:

If you are using a mobile device, please click "View web version" to find the Contact Form and the link to request for a Virtual Meeting.