PROPERTY AUGUST 24 (Additional) 1

G.R. No. L-27952 February 15, 1982

de la 'Central Azucarera de la Carlota a P17.00

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

por
accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion
a
P0.15
accion ..............................................1,620.90

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle
Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his
companion Wanda de Wrobleski.

Cuenta de Ahorros en el Philippine Trust

Co..............................................................................................
2,350.73

The task is not trouble-free because the widow Marcelle is a French who lives in
Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the
testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with
only his widow as compulsory heir. His will was admitted to probate by the Court of
First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was
appointed administratrix of the estate. In due time she submitted an inventory of the
estate as follows:

TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garantizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR
LIQUIDO...........................................
P507,976.97

INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la
Escolta,
P500,000.00

por

Manila.............................................................

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas
menores de edad, residentes en Manila, I.F., calle 'Alright, No.
1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con
sustitucion vulgar a favor de sus respectivos descendientes, y, en
su defecto, con sustitucion vulgar reciprocal entre ambos.

PROPERTY AUGUST 24 (Additional) 2

El precedente legado en nuda propiedad de la participacion
indivisa de la finca Santa Cruz Building, lo ordena el testador a
favor de los legatarios nombrados, en atencion a que dicha
propiedad fue creacion del querido padre del otorgante y por ser
aquellos continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador,
Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General
Gallieni No. 33, Seine Francia, con sustitucion vulgar u
fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de
Mallorca, Son Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la
nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D.
Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y
encuanto a la mitad restante, a favor de su sobrino, D. Horace V.
Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente
ordinadas, las usufiructuarias nombradas conjuntamente con los
nudo propietarios, podran en cualquier memento vender a tercero
los bienes objeto delegado, sin intervencion alguna de los titulares
fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the
widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion"
shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third
(1/3) of the free portion is charged with the widow's usufruct and the remaining twothirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the
provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the
widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with
respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda)
survived the testator; (b) that the provisions for fideicommissary substitutions are also
invalid because the first heirs are not related to the second heirs or substitutes within

the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an
alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the
proposed partition of the testator's interest in the Santa Cruz (Escolta) Building
between the widow Marcelle and the appellants, violates the testator's express win to
give this property to them Nonetheless, the lower court approved the project of
partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have
appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the estate in
full ownership. They admit that the testator's dispositions impaired his widow's
legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or
widower, she or he shall be entitled to one-half of the hereditary estate." And since
Marcelle alone survived the deceased, she is entitled to one-half of his estate over
which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of
Marcelle because the testament provides for a usufruct in her favor of one-third of the
estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en
pleno dominio" as her legitime and which is more than what she is given under the
will is not entitled to have any additional share in the estate. To give Marcelle more
than her legitime will run counter to the testator's intention for as stated above his
dispositions even impaired her legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another heir so
that he may enter into the inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil
Code.) According to Tolentino, "Although the Code enumerates four classes, there are
really only two principal classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs

PROPERTY AUGUST 24 (Additional) 3

should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a
favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar
reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The
appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de
Wrobleski" in connection with the one-third usufruct over the estate given to the
widow Marcelle However, this question has become moot because as We have ruled
above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and
Horace v. Ramirez.

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution "provided such substitution does not go beyond one
degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there
can be only one tranmission or substitution, and the substitute need
not be related to the first heir. Manresa, Morell and Sanchez
Roman, however, construe the word "degree" as generation, and
the present Code has obviously followed this interpretation. by
providing that the substitution shall not go beyond one degree "from
the heir originally instituted." The Code thus clearly indicates that
the second heir must be related to and be one generation from the
first heir.
From this, it follows that the fideicommissary can only be either a
child or a parent of the first heir. These are the only relatives who
are one generation or degree from the fiduciary (Op. cit., pp. 193194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee
admits "that the testator contradicts the establishment of a fideicommissary
substitution when he permits the properties subject of the usufruct to be sold upon
mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.

They allege that the substitution in its vulgar aspect as void because Wanda survived
the testator or stated differently because she did not predecease the testator. But
dying before the testator is not the only case for vulgar substitution for it also includes
refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil
Code, supra. Hence, the vulgar substitution is valid.

The appellants claim that the usufruct over real properties of the estate in favor of
Wanda is void because it violates the constitutional prohibition against the acquisition
of lands by aliens.

As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:

SEC. 5. Save in cases of hereditary succession, no private

agricultural land shall be transferred or assigned except to

The 1935 Constitution which is controlling provides as follows:

PROPERTY AUGUST 24 (Additional) 4

individuals, corporations, or associations qualified to acquire or hold
lands of the public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that
the Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables
aliens to acquire private lands does not extend to testamentary succession for
otherwise the prohibition will be for naught and meaningless. Any alien would be able
to circumvent the prohibition by paying money to a Philippine landowner in exchange
for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is
the vesting of title to land in favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby
ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in
naked ownership and the usufruct to Wanda de Wrobleski with a simple substitution
in favor of Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
SO ORDERED.
G.R. No. L-45142

April 26, 1991

SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO ESPINA, CELIA

ESPINA,
GAUDIOSA
ESPINA
and
NECIFORA
ESPINA, petitioners,
vs.
THE HON. OTILIO ABAYA and SOFIA ESPINA and JOSE ESPINA, respondents.
Cipriano C. Alvizo, Sr. for private respondents.

MEDIALDEA, J.:

This is a petition for certiorari with prayer for the issuance of a writ of preliminary
injunction seeking the nullification of the orders issued by the respondent Judge Otilio
Abaya, in his capacity as the presiding judge of the Court of First Instance of Surigao
del Sur, Branch II, Lianga, Surigao del Sur in Civil Case No. L-108, entitled "Simprosa
Vda. de Espina, et. al. v. Sofia Espina, et. al." dated May 9, 1975 dismissing the
complaint for partition; July 25, 1975 denying the motion for reconsideration; August
13, 1975 denying the second motion for reconsideration and March 15, 1976 denying
plaintiffs' notice of appeal.
The antecedent facts are as follows:
Marcos Espina died on February 14, 1953 and was survived by his spouses,
Simprosa Vda. de Espina and their children namely, Recaredo, Timoteo, Celia,
Gaudiosa, Necifora, Sora and Jose, all surnamed Espina. Decedent's estate
comprises of four (4) parcels of land located at the Municipality of Barobo Province of
Surigao del Sur.
On August 23, 1973 an action for partition of the aforementioned parcels of land was
filed by petitioners Simprosa and her children Recaredo, Timoteo, Celia, Gaudencia
and Necifora.
The complaint alleges that parcel No. 1 is the exclusive property of the deceased,
hence the same is owned in common by petitioners and private respondents in eight
(8) equal parts, while the other three (3) parcels of land being conjugal properties, are
also owned in common, one-half (1/2) belongs to the widow Simprosa and the other
half is owned by her and her children in eight (8) equal parts.
It also alleges that parcel No. 1 has been subdivided into two lots. Lot No. 994 PL8-44
is covered by Original Certificate of Title No. 5570 in the name of one of the heirs,
Sofia Espina, who acquired the title as a trustee for the beneficiaries or heirs of
Marcos Espina, while lot No. 1329 PCS-44 is covered by Original Certificate of Title
No. 3732 issued in the name of one of the heirs, Jose Espina as trustee for the heirs
of Marcos Espina. Said parcel of land is in the possession of petitioners and private
respondents who have their respective houses thereon.
Simprosa presently occupies parcel No. 2 while parcel No. 3 is occupied by Timoteo,
although the same is actually titled in the name of Sofia. Parcel No. 4 is occupied by
Recaredo.
Petitioners have several times demanded the partition of the aforementioned
properties, but notwithstanding such demands private respondents refused to accede.
Private respondents alleged in their answer that in or about April, 1951, the late
Marcos Espina and his widow, Simprosa, together with their children made a
temporary verbal division and assignment of shares among their children. After the
death of Marcos, the temporary division was finalized by the heirs. Thereafter the

PROPERTY AUGUST 24 (Additional) 5

heirs took immediate possession of their respective shares on April 20, 1952. Private
respondents took actual physical possession of their respective shares including the
portions ceded to them by Simprosa upon their payment of P50.00 each per quarter
starting April, 1952 until the latter's death pursuant to their contract of procession The
assignment of shares was as follows:
(a) To the surviving spouses, (sic) Simprosa Vda. de Espina, herein plaintiffs,
one-half (1/2) of the parcel of land adjudicated to each of said plaintiffs-heirs
and defendants;
(b) To each of the following compulsory heirs, to wit:
1. To Recaredo (sic) Espina, one-half (1/2) portion which contains an area of
one and three-fourths (1 3/4) hectares and which forms part of Parcel 4
whose description is given in paragraph III of the complaint, the said Parcel
IV has been in the possession of both Recaredo Espina and plaintiff
Simprosa Vda. de Espina from April 20, 1952 until the present time;
2. To Timoteo Espina, one half (1/2) portion which contains an area of not
less than one-half (1/2) hectare and which forms part of Parcel 3 whose
description is given in paragraph III of the complaint, the said Parcel III was
originally assigned by Marcos Espina who thereupon obtained an Original
Certificate of Title in her (sic) name but was finally adjudicated to said
Timoteo Espina in April, 1952, the other half (1/2) portion of which parcel III
was the share of the surviving spouses (sic), Simprosa Vda. de Espina, and
said Parcel III has been in the possession of said Timoteo Espina and
Simprosa Vda. de Espina from April, 1952 until the present time as their
share;
3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina, one-half
(1/2) portion, share and share alike which contains two (2) hectares and
which forms part of Parcel II whose description is given in paragraph III of
the complaint, the other half (1/2) of said Parcel III (sic) is the share of the
surviving spouses (sic) Simprosa Vda. de Espina, and said Parcel III (sic)
has been in the possession of said Cecilia. (sic) Espina, Gaudiosa Espina
and Necifora Espina and Simprosa Vda. de Espina from April, 1952 until the
present time;
4. To Sofia Espina, one-half (1/2) portion of the parcel of land included in the
deception of Parcel 1 in paragraph III of the complaint, the other half (1/2) of
said parcel being the share of the surviving spouses (sic) Simprosa Vda. de
Espina and having been ceded by said Simprosa Vda. de Espina to said
Sofia Espina for a valuable consideration payable quarterly at the rate of
P50.00 beginning April, 1952 until her death, and said Sofia Espina has
been regularly paying to said Simprosa Vda. de Espina quarterly from April,
1952 the said amount of P50.00 until the present time, and by virtue of said
agreement, Sofia Espina obtained Original Certificate of Title in her name of

said parcel of land which is included in the description of said parcel 1, as

her exclusive property;
5. To Jose Espina, one-half (1/2) portion of the other parcel of land included
in the description of Parcel 1 in paragraph 1 of the complaint, the other half
(1/2) of said parcel being the share of the surviving spouses (sic) Simprosa
Vda. de Espina and having been coded (sic) by said Simprosa Vda. de
Espina to said Jose Espina for a valuable consideration payable quarterly at
the rate of P50.00 beginning April, 1952 until her death, and said Jose
Espina has been regularly quarterly paying to said Simprosa Vda. de Espina
from April, 1952 until the present time, the said amount of P50.00, and by
virtue of said agreement, Jose Espina obtained Original Certificate of Title in
his name of said parcel of land which is included in the description of said
Parcel 1 as his exclusive property. (Rollo, pp. 27-28)
On February 13, 1974 private respondents filed a motion to dismiss the complaint
alleging the following grounds, to wit:
I
THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CONFER
UPON THE COURT COMPLETE AND LAWFUL JURISDICTION OVER THE
CASE FOR NON-COMPLIANCE WITH THE CONDITION SINE QUA NON
CONCERNING SUIT BETWEEN MEMBERS OF THE SAME FAMILY.
xxx

xxx

xxx

II
THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE OF
LIMITATIONS.
xxx

xxx

xxx

III
THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE, (Motion to
Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
xxx

xxx

xxx

On May 9, 1975 the trial court granted the motion and thereafter dismissed the
complaint. On May 23, 1975 petitioners filed a motion for reconsideration on the
following grounds, to wit:

PROPERTY AUGUST 24 (Additional) 6

1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN FACT
AND IN LAW.
2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN THE
CASE AT BAR. (Rollo, p. 50)
However, petitioners' motion was denied in an order dated July 23, 1975. On August
11, 1975 petitioners filed another motion for reconsideration stressing that they were
denied due process when their motion was not heard. Again said motion was denied
on August 13, 1975.
Thereafter, petitioners filed their notice of appeal on September 11, 1975 and a
motion for extension of time to file their Record on Appeal on September 18, 1975.
On March 15, 1976, the respondent judge disapproved petitioners' Record on Appeal
and appeal bond on the ground that the notice of appeal was filed out of time. Hence,
this petition. The petitioners raised four (,41) assignment of errors:

Firstly, parcel No. 1 being an exclusive property of the deceased should have been
divided into eight (8) equal parts. Therefore, Simprosa . could only cede her share of
the land which is 1/8 portion thereof and cannot validly cede the shares of her then
minor children without being duly appointed as guardian.
Secondly, under Article 1358 of the New Civil Code, Simprosa could not have ceded
her right and that of her other children except by a public document. (Memorandum of
Petitioners, pp. 8-9)
On the other hand, private respondents insist that the oral partition is valid and
binding and does not fall under the coverage of the Statute of Frauds.
Petitioners claim that they were denied due process when the motion for
reconsideration was denied without any hearing.
However, private respondents maintain that the hearing of a motion for
reconsideration in oral argument is a matter which rest upon the sound discretion of
the Court.

1. Whether or not an action for partition among co-heirs prescribes.

2. Whether or not an oral partition among co-heirs is valid.
3. Whether or not a hearing on a motion for reconsideration is indispensable
the lack of which is a deal of due process.
4. Whether or not the second motion for reconsideration is pro forma Rollo,
p. 10)
Petitioners maintain that the present action is not for reconveyance but one for
partition. Hence, the rule insisted by the private respondents on prescriptibility of an
action for reconcile conveyance of real property based on an implied trust is not
applicable in the case at bar. In addition, petitioners, argue that private respondents
cannot set up the defense of prescription or laches because their possession of the
property no matter how long cannot ripen into ownership. (Memorandum for
Petitioners, p. 7)
However, the private respondents stress that 'any supposed right of the petitioners to
demand a new division or partition of said estate of Marcos Espina has long been
barred by the Statute of Limitations and has long prescribed." (Memorandum for
Private Respondents, p. 5)
The petitioners claim that the alleged oral partition is invalid and strictly under the
coverage of the statute of Frauds on two grounds, to wit:

Finally, petitioners stress that the second motion for reconsideration is not pro forma,
thus, it suspends the running of the period of appeal. Hence, the notice of appeal was
timely filed.
On this point, private respondent maintain that the order of respondent judge dated
March 1 5, 1976 disapproving petitioners' Record on Appeal and appeal bond may
not properly be a subject of a petition for certiorari. (Memorandum of Private
Respondents, p. 13)
We find the petition devoid of merit.
We already ruled in Lebrilla, et al. v. Intermediate Appellate Court (G.R. No. 72623,
December 18, 1989, 180 SCRA 188; 192) that an action for partition is
imprescriptible. However, an action for partition among co-heirs ceases to be such,
and becomes one for title where the defendants allege exclusive ownership.
In the case at bar, the imprescriptibility of the action for partition cannot be invoked
because two of the co-heirs, namely private respondents Sora and Jose Espina
possessed the property as exclusive owners and their possession for a period of
twenty one (21) years is sufficient to acquire it by prescription. Hence, from the
moment these co-heirs claim that they are the absolute and exclusive owners of the
properties and deny the others any share therein, the question involved is no longer
one of partition but of ownership.
Anent the issue of oral partition, We sustain the validity of said partition.1wphi1 "An
agreement of partition may be made orally or in writing. An oral agreement for the
partition of the property owned in common is valid and enforceable upon the parties.

PROPERTY AUGUST 24 (Additional) 7

The Statute of Frauds has no operation in this kind of agreements, for partition is not
a conveyance of property but simply a segregation and designation of the part of the
property which belong to the co-owners." (Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines, Vol. II, 1983 Edition, 182183 citing Hernandez v. Andal, et. al., G.R. No. L275, March 29, 1957)
Time and again, the Court stresses that the hearing of a motion for reconsideration in
oral argument is a matter which rests upon the sound discretion of the Court. Its
refusal does not constitute a denial of due process in the absence of a showing of
abuse of discretion. (see Philippine Manufacturing Co. v. Ang Bisig ng PMC et. al.,
118 Phil. 431, 434)
The absence of a formal hearing on the petitioners' motion for reconsideration is
thoroughly explained in the order of the respondent judge dated August 13, 1975,
which is hereunder quoted as follows:
When the court issued its order of June 5, 1975 requiring counsel for
defendants to answer plaintiffs' motion for reconsideration, the court opted to
resolve plaintiffs' motion based on the pleadings of the parties, without
further oral arguments. The court considered the arguments of the parties
stated in their pleadings as already sufficient to apprise the court of the
issues involved in said motion.
Plaintiffs' allegation that the Clerk of Court failed to calendar their motion for
reconsideration for oral argument has not deprived the plaintiffs of any
substantial right or his right to due process.
SO ORDERED. (Memorandum of Private Respondents, pp. 1213)
A cursory reading of the aforequoted order will show that there was indeed no formal
hearing on the motion for reconsideration. There is no question however, that the
motion is grounded on the lack of basis in fact and in law of the order of dismissal and
the existence or lack of it is determined by a reference to the facts alleged in the
challenged pleading. The issue raised in the motion was fully discussed therein and in
the opposition thereto. Under such circumstances, oral argument on the motion is
reduced to an unnecessary ceremony and should be overlooked (see Ethel Case, et
al. v. Jugo, 77 Phil. 517, 522).
We adhere to the findings of the trial court that the second motion for reconsideration
dated August 11, 1975 ispro forma, to it

Furthermore, the second motion for reconsideration has not stated new
grounds considering that the alleged failure of the Clerk of Court to set
plaintiffs' motion for reconsideration, although seemingly a different ground
than those alleged in their first motion for reconsideration, is only incidental
to the issues raised in their first motion for reconsideration, as it only refers
to the right of plaintiffs' counsel to argue his motion in court just to amplify
the same grounds already deed by the court. (Ibid, p. 3, Rollo, p. 75)
Therefore, it is very evident that the second motion for reconsideration being proforma did not suspend the running of the period of appeal. Thus, the lower court
committed no error when it held that the notice of appeal was filed after the lapse of
thirty five (35) days, which is clearly beyond the period of thirty (30) days allowed by
the rules.
Finally, it has been a basic rule that certiorari is not a substitute for appeal which had
been lost. (see Edra v. Intermediate Appellate Court, G.R. No. 75041, November 13,
1989, 179 SCRA 344) A special civil action under Rule 65 of the Rules of Court will
not be a substitute or cure for failure to file a timely petition for review
oncertiorari (appeal) under Rule 45 of the Rules of Court. (Escudero v. Dulay, G.R.
No. 60578, February 23, 1988, 158 SCRA 69, 77)
The application of the abovecited rule should be relaxed where it is shown that it will
result in a manifest failure or miscarriage of justice. (Ibid, p. 77) However, as
emphasized earlier, the case at bar is totally devoid of merit, thus, the strict
application of the said file will not in any way override sub-substantial justice.
Therefore, the delay of five (5) days in filing a notice of appeal and a motion for
extension to file a record on appeal cannot be excused on the basis of equity.
All premises considered, the Court is convinced that the acts of respondent judge, in
dismissing the action for partition and in subsequently denying the motions for
reconsideration of the petitioners, does not amount to grave abuse of discretion.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.
G.R. No. L-52361 April 27, 1981

The grounds stated in said motion being in reiteration of the same grounds
alleged in his first motion, the same is pro-forma. (Order dated March 15,
1976, p. 2, Rollo, p. 74)

SUNSET
VIEW
CONDOMINIUM
CORPORATION, petitioner,
vs.
THE HON. JOSE C. CAMPOS, JR. OF THE COURT OF FIRST INSTANCE,
BRANCH XXX, PASAY CITY and AGUILAR-BERNARES REALTY, respondents.

xxx

G.R. No. L-52524 April 27, 1981

xxx

xxx

PROPERTY AUGUST 24 (Additional) 8

SUNSET
VIEW
CONDOMINIUM
CORPORATION, petitioner,
vs.
THE HON. JOSE C. CAMPOS, JR., PRESIDING JUDGE OF THE COURT OF
FIRST INSTANCE, BRANCH XXX, PASAY CITY, and LIM SIU LENG, respondents.

FERNANDEZ, J.:
These two cases which involve similar facts and raise Identical questions of law were
ordered consolidated by resolution of this Court dated March 17, 1980. 1
The petitioner, Sunset View Condominium Corporation, in both cases, is a
condominium corporation within the meaning of Republic Act No. 4726 in relation to a
duly registered Amended Master Deed with Declaration of Restrictions of the Sunset
View Condominium Project located at 2230 Roxas Boulevard, Pasay City of which
said petitioner is the Management Body holding title to all the common and limited
common areas. 2
G.R. NO. 52361
The private respondent, Aguilar-Bernares Realty, a sole proprietorship with business
name registered with the Bureau of Commerce, owned and operated by the spouses
Emmanuel G. Aguilar and Zenaida B. Aguilar, is the assignee of a unit, "Solana", in
the Sunset View Condominium Project with La Perla Commercial, Incorporated, as
assignor. 3 The La Perla Commercial, Incorporated bought the "Solana" unit on
installment from the Tower Builders, Inc. 4The petitioner, Sunset View Condominium
Corporation, filed for the collection of assessments levied on the unit against AguilarBernares Realty, private respondent herein, a complaint dated June 22, 1979
docketed as Civil Case No. 7303-P of the Court of First Instance of Pasay City,
Branch XXX. The private respondent filed a Motion to Dismiss the complaint on the
grounds (1) that the complaint does not state a cause of action: (2) that the court has
no jurisdiction over the subject or nature other action; and (3) that there is another
action pending between the same parties for the same cause. The petitioner filed its
opposition thereto. The motion to dismiss was granted on December 11, 1979 by the
respondent Judge who opined that the private respondent is, pursuant to Section 2 of
Republic Act No. 4726, a "holder of a separate interest" and consequently, a
shareholder of the plaintiff condominium corporation; and that "the case should be
properly filed with the Securities & Exchange Commission which has exclusive
original jurisdiction on controversies arising between shareholders of the corporation."
the motion for reconsideration thereof having been denied, the petitioner, alleging

grave abuse of discretion on the part of respondent Judge, filed the instant petition for
certiorari praying that the said orders be set aside.
G.R. NO. 52524
The petitioner filed its amended complaint dated July 16, 1979 docketed as Civil Case
No. 14127 of Branch I of the City Court of Pasay City for the collection of overdue
accounts on assessments and insurance premiums and the interest thereon
amounting to P6,168 06 as of March 31, 1979 against the private respondent Lim Siu
Leng 5to whom was assigned on July 11, 1977 a unit called "Alegria" of the Sunset.
View Condominium Project by Alfonso Uy 6who had entered into a "Contract to Buy
and Sell" with Tower Builders, Inc. over the said unit on installment basis. 7
The private respondent filed a motion to dismiss on the ground of lack of jurisdiction,
alleging that the amount sought to be collected is an assessment. The correctness
and validity of which is certain to involve a dispute between her and the petitioner
corporation; that she has automatically become, as a purchaser of the condominium
unit, a stockholder of the petitioner pursuant to Section 2 of the Condominium Act,
Republic Act No. 4726; that the dispute is intra-corporate and is consequently under
the exclusive jurisdiction of the Securities & Exchange Commission as provided in
Section 5 of P.D. No. 902-A. 8
The petitioner filed its opposition thereto, alleging that the private respondent who had
not fully paid for the unit was not the owner thereof, consequently was not the holder
of a separate interest which would make her a stockholder, and that hence the case
was not an intra-corporate dispute. 9
After the private respondent had filed her answer to the opposition to the motion to
dismiss 10 of the petitioner, the trial court issued an order dated August 13, 1979
denying the motion to dismiss. 11 The private respondent's motion for reconsideration
thereof was denied by the trial court in its Order dated September 19, 1979. 12
The private respondent then appealed pursuant to Section 10 of Rule 40 of the Rules
of Court to the Court of First Instance, where the appeal was docketed as Civil Case
No. 7530P. The petitioner filed its "Motion to Dismiss Appeal" on the ground that the
order of the trial court appealed from is interlocutory. 13
The motion to dismiss the appeal was denied and the parties were ordered to submit
their respective memorandum on the issue raised before the trial court and on the
disputed order of the trial judge. 14 After the parties had submitted their respective
memoranda on the matter, the respondent Judge issued an order dated December
14, 1979 in which he directed that "the appeal is hereby dismissed and d the

PROPERTY AUGUST 24 (Additional) 9

judgment of the lower court is reversed. The case is dismissed and the parties are
directed to ventilate their controversy with the Securities & Exchange
Commission. 15 The petitioner's motion for reconsideration thereof was denied in an
order dated January 14, 1980. 16 Hence this petition for certiorari, alleging grave
abuse of discretion on the part of the respondent Judge.

The provisions of this Act shall apply to property divided or to be

divided into condominium 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 ... an enabling or master deed which shall contain, among
others, the following:

Issues Common to Both Cases

xxx xxx xxx
It is admitted that the private respondents in both cases have not yet fully paid the
purchase price of their units. The Identical issues raised in both petitions are the
following:
1. Is a purchaser of a condominium unit in the condominium project managed by the
petitioner, who has not yet fully paid the purchase price thereof, automaticaly a
,stockholder of the petitioner Condominium Corporation
2. Is it the regular court or the Securities & Exchange Commission that has
jurisdiction over cases for collection of assessments assessed by the Condominium
Corporation on condominium units the full purchase price of which has not been
paid?
The private respondents in both cases argue that every purchaser of a condominium
unit, regardless of whether or not he has fully paid the purchase price, is a "holder of
a separate interest" mentioned in Section 2 of Republic Act No. 4726, otherwise
known as "The Condominium Act" and is automatically a shareholder of the
condominium corporation.
The contention has no merit. Section 5 of the Condominium Act expressly provides
that the shareholding in the Condominium Corporation will be conveyed only in a
proper case. Said Section 5 provides:
Any transfer or conveyance of a unit or an apartment, office or
other space therein, shall include the transfer or conveyance of the
undivided interests in the common areas or, in a proper case, the
membership or shareholding in the condominium corporation ...
It is clear then that not every purchaser of a condominium unit is a shareholder of the
condominium corporation. The Condominium Act leaves to the Master Deed the
determination of when the shareholding will be transferred to the purchaser of a unit.
Thus, Section 4 of said Act provides:

(d) Astatement of the exact nature of the interest acquired or to be

acquired by the purchaser in the separate units and in the common
areas of the condominium project ...
The Amended Master Deeds in these cases, which were duly registered in the
Register of Deeds, and which contain, by mandate of Section 4, a statement of the
exact nature of the interest acquired by a purchaser of a unit, provide in Section 6 of
Part 1:
(d) Each Unit owner shall, as an essential condition to such
ownership, acquire stockholding in the Condominium Corporation
herein below provided ... 17
The Amended Master Deeds likewise provide in Section 7 (b), thus.
(b) All unit owners shall of necessity become stockholders of the
Condominium Corporation. TOWER shall acquire all the shares of
stock of SUNSET VIEW and shall allocate the said shares to the
units in proportion to the appurtenant interest in the COMMON
AREAS and LIMITED COMMON AREAS as provided in Section 6
(b) above. Said shares allocated are mere appurtenances of each
unit, and therefore, the same cannot be transferred, conveyed,
encumbered or otherwise disposed of separately from the Unit ... 18
It is clear from the above-quoted provisions of the Master Deeds that the
shareholding in the Condominium Corporation is inseparable from the unit to which it
is only an appurtenant and that only the owner of a unit is a shareholder in the
Condominium Corporation.
Subparagraph (a) of Part 1, Section 6, of the Master Deeds determines when and
under what conditions ownership of a unit is acquired by a purchaser thus:

PROPERTY AUGUST 24 (Additional) 10

(a) The purchaser of a unit shall acquire title or ownership of such
Unit, subject to the terms and conditions of the instrument
conveying the unit to such purchaser and to the terms and
conditions of any subsequent conveyance under which the
purchaser takes title to the Unit, and subject further to this
MASTER DEED ... 19

purchase price, is not a shareholder By necessary implication, the "separate interest"

in a condominium, which entitles the holder to become automatically a share holder in
the condominium corporation, as provided in Section 2 of the Condominium Act, can
be no other than ownership of a unit. This is so because nobody can be a
shareholder unless he is the owner of a unit and when he ceases to be the owner, he
also ceases automatically to be a shareholder.

The instrument conveying the unit "Solana" in G.R. NO. 52361 is the "Contract to Buy
and Sell" dated September 13, 1977, Annex "D", while that conveying the unit
"Alegria" in G.R. NO. 52524 is the "Contract to Buy and Sell" dated May 12, 1976,
Annex "C". In both deeds of conveyance, it is provided:

The private respondents, therefore, who have not fully paid the purchase price of their
units and are consequently not owners of their units are not members or shareholders
of the petitioner condominium corporation,

4. Upon full payment by the BUYER of the total purchase price and
full compliance by the BUYER of an its obligations herein, the
SELLER will convey unto the BUYER, as soon as practicable after
completion of the construction, full and absolute title in and to the
subject unit, to the shares of stock pertaining thereto and to an
rights and interests in connection therewith ... 20
The share of stock appurtenant to the unit win be transferred accordingly to the
purchaser of the unit only upon full payment of the purchase price at which time he
will also become the owner of the unit. Consequently, even under the contract, it is
only the owner of a unit who is a shareholder of the Condominium Corporation.
Inasmuch as owners is conveyed only upon full payment of the purchase price, it
necessarily follows that a purchaser of a unit who has not paid the full purchase price
thereof is not The owner of the unit and consequently is not a shareholder of the
Condominium Corporation.
That only the owner of a unit is a stockholder of the Condominium Corporation is
inferred from Section 10 of the Condominium Act which reads:
SEC. 10. ... 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 is 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.
Pursuant to the above statutory provision, ownership of a unit is a condition sine qua
non to being a shareholder in the condominium corporation. It follows that a
purchaser of a unit who is not yet the owner thereof for not having fully paid the full

Inasmuch as the private respondents are not shareholders of the petitioner

condominium corporation, the instant case for collection cannot be a "controversy
arising out of intracorporate or partnership relations between and among
stockholders, members or associates; between any or all of them and the corporation,
partnership or association of which they are stockholders, members or associates,
respectively" which controversies are under the original and exclusive jurisdiction of
the Securities & Exchange Commission, pursuant to Section 5 (b) of P.D. No. 902- A.
The subject matters of the instant cases according to the allegations of the complaints
are under the jurisdiction of the regular courts: that of G.R. NO. 52361, which is for
the collection of P8,335.38 with interest plus attorney's fees equivalent to the principal
or a total of more than P10,000.00 is under the jurisdiction of the Court of First
Instance; and that of G.R. NO. 52524, which is for the collection of P6,168-06 is
within the jurisdiction of the City Court.
In view of the foregoing, it is no longer necessary to resolve the issue raised in G.R.
NO. 52524 of whether an order of the City Court denying a motion to dismiss on the
ground of lack of jurisdiction can be appealed to the Court of First Instance.
WHEREFORE, the questioned orders of the respondent Judge dated December 11,
1979 and January 4, 1980 in Civil Case No. 7303-P, subject matter of the Petition in
G.R. No. 52361, are set aside and said Judge is ordered to try the case on the merits.
The orders dated December 14, 1979 and January 14, 1980 in Civil Case No. 7530-P,
subject matter of the petition in G.R. No. 52524 are set aside and the case is ordered
remanded to the court a quo, City Court of Pasay City, for trial on the merits, with
costs against the private respondents.
SO ORDERED.
G.R. No. 188802

February 14, 2011

PROPERTY AUGUST 24 (Additional) 11

REVELINA
LIMSON, Petitioner,
vs.
WACK WACK CONDOMINIUM CORPORATION, Respondent.
DECISION
CARPIO MORALES, J.:
On January 22, 1996, Revelina Limson1 (Revelina) purchased from Conchita Benitez
an apartment unit (Unit 703) at Wack Wack Apartments, Wack Wack Road,
Mandaluyong City.
Upon moving in, Revelina noticed defects in the electrical main panel located inside
the unit, drawing her to report them, by letter of February 22, 1996, to the Wack Wack
Condominium Corporation (respondent), a non-stock corporation organized for the
purpose of holding title to and managing the common areas of Wack Wack
Apartments
Racquel Gonzalez, who sits as Member of respondents Board of Directors, replied by
letter of February 23, 1996 that under Section 3 of the House Rules and Regulations,
it is the duty of the unit owner to maintain the electrical and plumbing systems at
his/her expense.
By still another letter dated February 28, 1996, Revelina informed respondent that the
"switch board is such that No. 12 wire is protected by 30 ampere fuse" and that five
appliances refrigerator, freezer, iron, dryer and washing machine are connected to
only one fuse.
Revelina later sought professional assistance from a private electrical consultant,
Romago, Incorporated. It was concluded that the wirings in Unit 703 are unsafe,
hazardous and did not comply with the Philippine Electrical Code.
On Revelinas request, the City Building Office conducted an inspection of Unit 703
following which a Report dated January 21, 1997 was accomplished with the following
findings and recommendations:
Findings:
1. The load center consists of 100 A 2 pst main switch and fusible cut out
Blocks with 16 circuits. The fusible cut out block enclosure is not provided

with cover, exposing electrical live part that makes it hazardous, unsafe and
will be difficult to maintain because a portion was blocked by a shelf.
2. The jumper cable from main safety switch to fusible cut-out blocks used 2
#10 wire (Capt. 60 amp) per phase. This is undersized and would overheat.
3. The fusible current protective devise where all 30 Amp., sp., 240 v FOR 2
#12 TW (20 AMP. Capacity wire) this does not comply with the provision of
the Philippine Electrical Code that stipulates rating of the protective devise
shall be the same as the conductor ampacity especially on a multi outlet
circuit.
4. Power supply for water heaters was tapped to small appliance for
convenience outlet circuit.
Recommendation:
1. Replacement of fusible load center with panel board and circuit breaker
components to correct the problem as enumerated on items 2, 3, 4 of our
findings.
2. Replace the embedded circular loom with conduit on moulding.
3. Check all grounded circuit for water heater lad.
4. Provide separate circuit for water heater lad.
5. Submit As Built Electrical Plan signed and sealed by a Professional
Electrical Engineer together with the previous approved Electrical Plan.
(emphasis and underscoring supplied)
The Report was sent by then Mayor Benjamin Abalos, Sr. to respondent by letter
dated January 31, 1997. On February 3, 1997, respondent, through Architect Eugenio
Gonzalez, wrote Revelina to demand that repairs in line with the above-stated
recommendation of the City Building Office be undertaken within ten (10) days.
Before the deadline, respondents Board of Directors convened on February 7, 1997
and resolved to impose a daily fine of P1,000.00 on Revelina and her husband
Benjamin, to commence on February 14, 1997, should the latter fail to comply.

PROPERTY AUGUST 24 (Additional) 12

Revelina and her husband refused to undertake the repairs and to pay the fine. They
claimed that the electrical main panel forms part of the common areas, citing Section
6 of Republic Act No. 47262, "An Act to Define Condominium, Establish Requirements
for its Creation and Government of its Incidents," the pertinent provision of which
reads:
Sec. 6. Unless otherwise expressly provided in the enabling or master deed or the
declaration of restrictions, the incidents of a condominium grant are as follows:
a.) x x x The following are not part of the unit: bearing walls, columns, floors, roofs,
foundations, and other common structural elements of the buildings; lobbies,
stairways, hallways and other areas of common use, elevator equipment and shafts,
central heating, central refrigeration and central air conditioning equipment, reservoir,
tanks, pumps and other central services and facilities, pipes, ducts, flues, chutes,
conduits wires and other utility installations, wherever located, except the outlets
thereof when located within the unit. (emphasis and underscoring supplied)
They argued that an electrical main panel is in the nature of a utility installation.
Meanwhile, Revelina and her husband purchased an oversized whirlpool. In the
process of installation, the 7th floor utility room which is adjacent to Unit 703 was
damaged.
Revelina claimed that an agreement had been reached under which respondent
would take charge of the repair of the utility room and would bill her for the cost
incurred therefor but respondent failed to do so. Yet the Board of Directors assessed
her and her husband a fine of P1,000.00 per day until the utility room is repaired.
Respondent thereupon filed a complaint for specific performance and damages
against Revelina and Benjamin before the Securities and Exchange Commission
(SEC) upon the following causes of action:
1. To compel the defendants (Spouses Limson) to undertake the necessary
repairs of the defective and hazardous condition of the electrical wiring of
their Unit 703 in accordance with the report and recommendation of the
Office of the Building Official of Mandaluyong City;
2. To seek payment of liquidated damages from the defendants in
accordance with the Resolution of the Board of Directors of plaintiff
(respondent herein), starting February 15, 1997 until the defendants shall

have complied with the aforestated report and recommendation of the

building officials; and
3. To seek payment of [sic] from the defendants for the damages they have
caused to the common area of Wack Wack Apartments due to their
insistence to install in their unit an over-sized whirlpool.3
Pursuant to A.M. No. 00-11-03, 4 the complaint was transferred to the Regional Trial
Court (RTC) of Mandaluyong City for disposition.
As of June 30, 1997, the assessments and penalties charged against the spouses
had reached P569,736.94. On July 17, 1997, respondent filed a Notice of
Assessment with the Register of Deeds, Mandaluyong City with application for
foreclosure and public auction of Unit 703.
At the public auction held on August 28, 1997, respondent emerged as highest bidder
and thereupon purchased Unit 703 in the amount of P569,736.94, on account of
which it was issued a Certificate of Sale on September 15, 1997.
By Decision of December 22, 2003, Branch 214 of the Mandaluyong RTC dismissed
respondents complaint for lack of merit in this wise:
Guided by the findings and recommendation of the building official of Mandaluyong
City, it would appear that the questioned electrical installations are to be considered
as part of the common area and not of Unit 703, though the same are necessarily
found inside the said unit. As contained in Section 6, par. 1 of the Condominium Act:
"a) The boundary of the Unit granted are the interior surfaces of the perimeter walls,
floors, ceilings, windows and doors thereof. The following are not part of the unit:
bearing walls, columns, floors, roofs, foundations, and other common structural
elements of the buildings; lobbies, stairways, hallways and other areas of common
use, elevator equipment and shafts,
central heating, central refrigeration and central air conditioning equipment, reservoir,
tanks, pumps and other central services and facilities, pipes, ducts, flues, chutes,
conduits wires and other utility installations, wherever located, except the outlets
thereof when located within the unit. (underscoring supplied; emphasis in the
original)5
On appeal, the Court of Appeals, by Decision of December 19, 2008, 6 reversed the
decision of the trial court, holding in the main that for the electrical main panel to be
considered as part of the common areas, it should have been intended for communal

PROPERTY AUGUST 24 (Additional) 13

use and benefit. The subject electrical main panel being located inside the unit and its
principal function being to control the flow of electricity into the unit, the appellate
court concluded that charges for its repair cannot be for respondents account.
On the imposition of fine on the spouses Limson for failure to correct the faulty
electrical wiring despite notice, the appellate court upheld respondents authority to
enforce the same. Finding, however, that the amount of P1,000 fine per day was
excessive, it reduced the same to P200.
Respecting respondents imposition of a fine of P1,000 per day on the spouses
alleged failure to repair the 7th floor utility room, the appellate court disallowed the
same, however, it holding that respondent did not first seek reimbursement from them
before assessment.

convenient for the existence, maintenance of safety of the Project.

(emphasis and underscoring supplied)
Section 3. Maintenance, Repairs and Alterations. (a) All maintenance of and repairs
of any Unit (other than the maintenance of and repairs to any of the Common Areas
contained therein not necessitated by the act or negligence of the owner, tenant or
occupant of such Unit) shall be made [by], and at the expense of, the owner of such
unit. Each Unit owner shall be responsible for all damages to any other Unit and to
the Common Areas resulting from his failure to effect such maintenance and repairs.
Each Unit owner shall also be responsible for promptly reporting to the Condominium
Corporation any defect or need for repairs in any of the Common Areas in his Unit.
(emphasis and underscoring supplied)
xxxx

Finally, the appellate court denied respondents prayer for actual damages in the
amount of P5,000 representing repair expenses on the utility room, it having failed to
present receipts therefor.
Her Motion for Reconsideration having been denied, Revelina filed the present
petition for review.
The Court finds for Revelina.
The pertinent provisions of the Wack Wack Apartments Master Deed follow:
Section 5. The Common Areas. The common elements or areas of the Project
(herein referred to as the"Common Areas") shall comprise all parts of the Project
other than the Units, including without limitation the following:
xxxx
(e) All central and appurtenant equipment and installations for common
facilities and utilities such as power, light, sewerage, drainage, garbage
chute, and water connections (including all outlets, pipes, ducts, wires,
cables and conduits used in connection therewith, whether located in
Common Areas or in Units); all elevators, elevator shafts, tanks, pumps,
motors, fans, compressors, and control equipment; all common utility spaces
and areas;
(f) All other parts of the Project and all apparatus, equipment
and installations therein which are for common use or necessary or

Section 3 (e) of R.A. 4726 defines "common areas" as "the entire project except all
units separately granted or held or reserved." Section 6 (a) of the same law provides:
a.) x x x The following are not part of the unit: bearing walls, columns, floors, roofs,
foundations, and other common structural elements of the buildings; lobbies,
stairways, hallways and other areas of common use, elevator equipment and shafts,
central heating, central refrigeration and central air conditioning equipment, reservoir,
tanks, pumps and other central services and facilities, pipes, ducts, flues, chutes,
conduits wires and other utility installations, wherever located, except the outlets
thereof when located within the unit.(emphasis and underscoring supplied)
The electrical panels location inside the unit notwithstanding, it is not automatically
considered as part of it. The above-quoted pertinent provisions of the law and the
master deed contemplate that "common areas," e.g. utility installations, may be
situated within the unit.
Where a statute is clear, plain and free from ambiguity, it must be given its literal
meaning and applied without attempt to interpret. 7 Verba legis non est recedendum,
index animi sermo est. There should be no departure from the words of the statute,
for speech is the index of intention.
An explanation of the Apartments electrical supply system was presented by
respondent, viz:
a.) x x x [T]he electrical system of the Apartments commences with
a common main electrical line (main line) provided by the Apartments,

PROPERTY AUGUST 24 (Additional) 14

connected to a Meralco line outside the building. This common main line
runs to the ground floor of the building, where the common meter station is
located; from where individual secondary lines, are tapped to the common
main line. There are as many individual secondary lines tapped to the
common main line, as there are units. EVERY SECONDARY LINE
TRAVELS VERTICALLY TO ITS DESIGNATED FLOOR AND LEADS TO AN
INDIVIDUAL UNIT.
b.) The construction is such, that every secondary line is embedded within
the wall of a unit, until it surfaces from the wall, ready to supply electricity to
that unit; the UNIT, in this case, has two (2) metal boxes, inside the
UNIT; both attached to the wall of the UNIT. The first of the two (2) metal
boxes is the main switch box. (Annex "B" and "B-1" The main switch box has
a hole, through which the secondary line enters and is attached to the upper
end of two (2) big fuses, located in the main switch box (Annex "B-1-a"). The
upper end of the two (2) big fuses, where the secondary line (tapped to the
main line) ends are indicated and marked as (Annex "B-1-b" and "B-1c")1avvphi1
c.) At the lower end of these two (2) big fuses, there are separate electrical
wires (technically called "jumper cables"). The jumper cables originate in the
UNITs second metal box which is the fusible cutout box (fuse box), and the
jumper cables are connected to the lower end of the two (2) big fuses in the
main switch boxto draw electricity to feed the fuse box. x x x 8 (capitalization
and underscoring in the original)
In a multi-occupancy dwelling such as Apartments, limitations are imposed under R.A.
47269 in accordance with the common interest and safety of the occupants therein
which at times may curtail the exercise of ownership. To maintain safe, harmonious
and secured living conditions, certain stipulations are embodied in the duly registered
deed of restrictions, in this case the Master Deed, and in house rules which the
condominium corporation, like respondent, is mandated to implement. Upon
acquisition of a unit, the owner not only affixes his conformity to the sale; he also
binds himself to a contract with other unit owners.10
Unquestionably, the fuse box controls the supply of electricity into the unit. Power is
sourced through jumper cables attached to the main switch which connects the units
electrical line to the Apartments common electrical line. It is an integral component of
a power utility installation. Respondent cannot disclaim responsibility for the
maintenance of the Apartments electrical supply system solely because a component
thereof is placed inside a unit.

As earlier stated, both the law and the Master Deed refer to utility installations as
forming part of the common areas, which reference is justified by practical
considerations. Repairs to correct any defects in the electrical wiring should be under
the control and supervision of respondent to ensure safety and compliance with the
Philippine Electrical Code,11 not to mention security and peace of mind of the unit
owners
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of
December 19, 2008 is REVERSEDand SET ASIDE. The Decision of Branch 214 of
the Mandaluyong Regional Trial Court dismissing the complaint of Wack Wack
Condominium Corporation against Revelina and Benjamin Limson is, in light of the
foregoing discussions, REINSTATED.
SO ORDERED.
G.R. No. L-60219 June 29, 1984
BIENVENIDO
AMISTOSO, petitioner,
vs.
SENECIO ONG, EPIFANIA NERI & HON. PRESIDING JUDGE, ESTEBAN M.
LISING OF THE COURT OF FIRST INSTANCE OF CAMARINES SUR, BRANCH
VI, respondents.
Resales and Associates Law Office for petitioner.
Gil P. Pacamarra for respondents.

CUEVAS, J.:
This is a Petition for Review on certiorari of the Order of the defunct Court of First
Instance of Camarines Sur, Branch VI dated January 14, 1981, dismissing its Civil
Case No. P-153, for lack of jurisdiction.
The pertinent antecedents are as follows:
On July 27, 1981, petitioner as plaintiff, filed before the then Court of First Instance of
Camarines Sur, a conplaint for Recognition of Basement with Preliminary Injunction
and Damages. The complaint which was docketed in the a resaid Court as Civil Case
No. P-153 among others alleged, that plaintiff (now petitioner) and defendant Epifania

PROPERTY AUGUST 24 (Additional) 15

Neri, (one of the herein private respondents) are the owners of adjoining parcels of
agricultural land situated in Cauayanan, Tinambac, Camarines Sur; that an irrigation
canal traverses the land of defendant Neri through which irrigation water from the
Silmod River passes and flows to the land of the petitioner for the latter's beneficial
use and that respondent Neri, owner of the land on which said irrigatrion canal exists
and Senecio Ong, the cultivator of the said property, despite repeated demands
refused to recognize the rights and title of the petitioner to the beneficial use of the
water passing through the aforesaid irrigation canal and to have petitioner's rights
and/or claims annotated on the Certificate of Title of respondent Neri . . . . Hence, the
filing of the said complaint.
In their Answer, private respondents denied the existence of any right on the part of
the petitioner to the use of the canal mentioned in the complaint nor any contract,
much less any deed or encumbrance on their property and assert that they have not
performed any act prejudicial to the petitioner that will warrant the filing of the
complaint against them. By way of affirmative and special defenses, private
respondents alleged that petitioner's complaint states no cause of action and that the
Court has no jurisdiction over the same.
Issues having been joined, trial was held. After petitioner has rested his case by a
formal offer of his testimonial and documentary evidences, private respondents
instead of presenting their evidence, filed a motion to dismiss. In the said motion,
respondents contedn that the instant case, involving as it does development,
exploitation, conservation and utilization of water resources falls within the exclusive
jursidiction of the National Water Resources Council pursuant to P.D. NO. 424,
Section 2(b) and Section 88 thereof. Acting on private respondent's motion,
respondent Judge dismissed petitioner's complaint for lack of jurisdiction in an Order
dated January 14, 1981. The pertinent portion of that Order reads as follows:
... The basis of the motion to dismiss are the provisions of
Presidential Decree No. 424 and the Water Code known as
Presidential Decree No. 1067. In opposing the motion to dismiss,
plaintiff contends that the present action does not involve water
dispute and that since the present action was filed before the court
prior to the effectivity of the Presidential Decree No. 424, it is the
old law on the matter that should be applied. These contentions of
the plaintiff are without merit. The complaint belies the plaintiff's
contention. Allegations in the complaint are explicit regarding the
claim of the right of plaintiff over the water passing through his land.
The right over irrigation water not having been shown as
established or vested or that said vested right, if any, has not been
alleged to be registered in accordance with the water code, the

provisions of Presidential Decrees 424 and 1067 shall govern. As

stated by the Supreme Court in the case of Abe-Abe vs. Manta, No.
L-4827, May 31, 1979, 90 SCRA 523, to wit: 4
It is incontestable that the petitioner's immediate
recourse is to ventilate their grievance with the
National Water Resources Council which, as
already noted, is the administrative agency
exclusively vested with original jurisdiction to
settle water rights disputes under the water code
under Presidential Decree No. 4 24.
The code assumes that it is more expeditious
and pragmatic to entrust to an administrative
agency the settlement of water rights disputes
rather than require the claimants to go directly to
the court where the proceedings are subject to
unavoidable delays which are detrimental to the
parties ...
That jurisdiction of the Council under Section 2(b)
of Presidential Decree No. 424 is reaffirmed in
Sec. 88 of the Water Code and in Section 3rd
thereof which provides that 'the utilization,
exploitation, development, conservation and
protection of water resources shall be subject to
the control and regulation of the government
through Council.
Failing to obtain a favorable reconsideration of the Order of dismissal, petitioner now
comes before Us through the instant petition contending:
(1) That the case at bar is not to settle any water dispute between
the parties but a complaint which calls purely for a determination of
the right of the plaintiff to have an established right amounting to an
easement annotated on the certificate of title of the defendant,
hence the question is judicial which may be taken cognizance of by
the respondent court;
(2) That since the case was filed on July 26, 1972. Which was
before the effectivity of PD NO. 424, therefore, even if defendant's
contention is correct that the case involved water rights dispute

PROPERTY AUGUST 24 (Additional) 16

the old law on water applies and not the present water code
otherwise the Court shall lose jurisdiction contrary to the wellsettled rule that once be lost;
(3) That the herein defendant can no longer raise the question of
plaintiff's right to the beneficial use of irrigation water since the right
to use had already been determined, decided and laid to rest when
the Department of Public Works, Transportation and
Communications awarded petitioner Water Rights Grant after
complying with all the legal requirements such as publication,
payment of fees, survey, investigation, etc.; and
(4) That the issue in the case at bar which was erroneously
overlooked by the respondent Judge does not involve a
determination of the right of the parties to the utilizatio conservation
and protection of the parties' respective water rights, hence it does
not fan within the competence nor jurisdiction of the National Water
Resources Council.
In a Resolution promulgated on August 11, 1982, we required the respondents to
comment on the petition. Private respondents' COMMENT was filed on March 2,
1984. Petitioner's REPLY thereto on the other hand was filed on May 10, 1984.

Private respondents' insistence that what is involved in the instant case is the right to
use, exploit and convey water is controverted by the "STIPULATION OF FACTS"
entered into between them and the petitioner in the court below which was approved
in an Order dated February 20, 1975, the pertinent portion of which reads as follows:
1. That there exists an irrigation canal for the use of the defendants
diverting water coming from the Silmod River, Tinambac,
Camarines Sur, passing on the ricelands of the latter to the
plaintiff's land irrigating the land of the latter, although plaintiff
claims it existed since 1952 up to the present, but disputed by the
defendants.
2. That the plaintiff has an approved water rights Grant issued by
the Department of Public Works, Transportation and
Communications, which plaintiff claims it for beneficial use to
irrigate their land from the Silmod River and defendants dispute
said claim
3. That as of now, defendants have no approved Water Rights
Grant issued by the proper authorities for the use of the water for
irrigation purposes from the Silmod River. However, defendants
have a pending application for Water Rights, the water of which
shall pass thru a different irrigation canal.

We considered the COMMENT as an Answer and gave due course to the petition.
Private respondents contend that the assailed order of dismissal was in order since a
mere cursory reading of the complaint shows that petitioner claims for the right to use
water coming from the Silmod River and prays that his right to the utilization thereof
be respected and not be disturbed and/or obstructed by the respondents. On its face
then, the dispute is on the use, conservation and protection of the right to water either
by the petitioner or by the private respondents. The annotation of the alleged
encumbrance on the title of the private respondent is merely the relief prayed for on
the basis of the claim to the use and protection of water passing through the land of
the respondents. And since the controversy hinges on the right to use and protect the
water from the Silmod River that passes on the land of the private respondents to the
petitioner's property, the proper authority to determine such a controversy is the
National Water Resources Council which is vested with exclusive jurisdiction over
such question pursuant to P.D. NOS. 424 and 1067.
We find the petition impressed with merit.

4. That one of the defendants' predecessors-in-interest, Abundio

Barallas had a written contract with the plaintiff, which defendants
claim easement of aqueduct Defendants are questioning the
legality, enforceability and validity of such contract.
xxx xxx xxx
6. That defendants refused to surrender their Transfer Certificate of
Title of her land for purposes of annotation of the contract, allegedly
an easement of aqueduct on the ground that she questions the
validity, enforceability, legality and therefore they are not bound by
the same.
From the foregoing stipulations, private respondents admit that petitioner, then
plaintiff, has an approved Water Rights Grant issued by the Department of Public
Works, Transportation and Communications. Private respondents, however, contend
that the said grant does not pertain to the beneficial use of irrigation water from
Silmod River. The records, however, do not show any other irrigation water going to

PROPERTY AUGUST 24 (Additional) 17

petitioner's property passing thru respondents' lot aside from that coming from the
Silmod River. Respondents' controversion of petitioner's right to irrigation water
specifically from Silmod River is undoubtedly a lame denial.
Aside from this admission, the record clearly discloses an approved Water Rights
Grant in favor of petitioner. Dr. Bienvenido V. Amistoso, which was approved on
November 13, the Acting Secretary of Public Works and Commission David M.
Consunji. (Exh. 1) The grant was made three (3) years before the promulgation of
P.D. 1067 on December 31, 1976, known as the Water Code of the Philippines, which
revised and consolidated the laws governing ownership, appropriation, option
exploitation, development, conservation and protection of water resources thereby
repealing among others, the provisions of the Spanish Law of Water of August 3,
1866, the Civil Code of Spain of 1889, and the Civil Code of the Philippines on
ownership of water, easement relating to water and of public water and acquisitive
prescription on the use of water which are inconsistent with the provisions of said
Code (Art. 10, P.D. 1067).lwphl@it
The water rights grant partakes the nature of a document known as a water
permit recognized under Article 13 of P.D. 1067, which provides:
Article 13. Except as otherwise herein provided, no person,
including Government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a water
right, which shall be evidenced by a document known as a water
permit.
Water right is the 7 granted by the government to appropriate and
use water.
As to the validity of the WATER RIGHTS GRANT of Amistoso upon the promulgation
of P.D. 1067 on December 31, 1976, the governing provision of law is found in the
Transitory and Final Provisions of P.D. 1067. It fans under "acts and contracts under
the regime of old laws". Article 97 provides, thus:
Article 97. Acts and contracts under the regime of old laws, ff they
are valid in accordance therewith, shag be respected, subject to the
stations established in this Code. Any modification or extension of
these acts and contracts after the promulgation of this Code, shall
be subject to the provisions hereof.
It may be observed that the WATER RIGHTS GRANT of Amistoso does not fall under
"claims for a right to use water existing on or before December 31, 1974" which under

P.D. 1067 are required to be registered with the National Water Resources Council
within two (2) years from promulgation of P.D. 1067, otherwise it is deemed waived
and the use thereof deemed abandoned. It is no longer a mere "claim" inasmuch as
there was already a GRANT by the Secretary of Public Works, Transportation and
Communications (the official then authorized to issue said grant) on November 13,
1973 after complying with all the requirements then prescribed by law for such grant.
The grant contradicts the erroneous findings of the respondent Judge, and
incontrovertibly entitles petitioner to the beneficial use of water from Silmod River.
That right is now a. vested one and may no longer be litigated as to bring petitioner's
case within the jurisdiction of the National Water Resources Council. To resurrect that
issue right to the use of invistigation water from Silmod River will be violative of
the rule on res judicata which also applies with equal vigor and effect to quasi judicial
tribunal (Brillantes vs. Castro, 99 Phils. 497, Ipekdjian Merchandising, Inc. vs. Court
of Tax Appeals, 9 SCRA 72, September 30,1963).
As correctly postulated by the petitioner, the court a quo is not being asked to grant
petitioner the right to use but to compel private respondents to recognize that right
and have the same annotated on respondent Neri's Torrens Certificate of Title. Resort
to judicial intervention becomes necessary because of the closure made by the
respondents of the irrigation canal thus depriving the petitioner to continue enjoying
irrigation water coming from Silmod River through respondents' property. The
interruption of the free flow of water caused by the refusal to re-open the closed
irrigation canal constituted petitioner's cause of action in the court below, which
decidedly do not fall within the domain of the authority of the National Water
Resources Council
Respondents, however, rely very heavily on the dictum laid down in the Abe-Abe vs.
Manta, No. L-4827, May 31, 1979, 90 SCRA 524, wherein it was held that
It is incontestable that the petitioner's immediate recourse is to
ventilate their grievance with the National Water Resources Council
which, as already noted, is the administrative agency exclusively
vested with original jurisdiction to settle water rights disputes under
the water code and under Presidential Decree No. 424.
The Code assumes that it is more expeditious and pragmatic to
entrust to an administrative agency the settlement of water rights
disputes rather than require the claimants to go directly to the court
where the proceedings are subject to unavoidable delays which are
detrimental to the parties ...

PROPERTY AUGUST 24 (Additional) 18

That jurisdiction of the Council under Section 2(b) of Presidential
Decree No. 424 is reaffirmed in Section 88 of the Water Code and
in Section 3rd thereof which provides that 'the utlization
exploitation, development, conservation and protection of water
resources shall be subject to the control and regulation of the
government through the Council
The said pronouncement, however, finds no application to the instant case for in
there, both petitioners and respondent have no established right emanating from any
grant by any governmental agency to the use, appropriation and exploitation of water.
In the case at bar, however, a grant indubitably exists in favor of the petitioner. It is the
enjoyment of the right emanating from that grant that is in litigation. Violation of the
grantee's right, who in this case is the petitioner, by the closure of the irrigation canal,

does not bring the case anew within the jurisdiction of the National Water Resources
Council.
WHEREFORE, the Order of the Honorable respondent Judge of January 14, 1981, is
hereby SET ASIDE. Private respondents are hereby ordered to RECOGNIZE
petitioner's BASEMENT of water and to surrender to the Register of Deeds of
Camarines Sur the owner's duplicate Transfer Certificate of Title No. 14216 covering
respondent Epifania Neri's property so that petitioner's right to the beneficial use of
said irrigation canal and water passing through the same may be annotated thereon.
SO ORDERED.