May 17, 2019

Mr. Dan Balbastro

Chief Executive Assistant to the Mayor
Municipality of San Quintin
Province of Maharlika
Philippines

Dear Mr. Balbastro:

This legal opinion seeks to answer your questions relating to your concerns on
the illegal settlers who have been entering in the communal forest created under
Presidential Proclamation No. 123.

The Facts

Based on the facts you have given, the following are the pertinent facts:

Lately, you have discovered that illegal settlers have been entering the
communal forest created under Presidential Decree No. 123 and have constructed
structures therein. Some of these settlers have claims of ownership over the parcel
where their structure was erected. Due to their acts having been made surreptitiously,
some structures were constructed of permanent materials. Also, records from the
building official indicate that none of these structures have building permits. As you
have mentioned, the said office had already issued three successive notices to each
structure owner informing them of the illegal nature of their structures and with a
directive to apply for permits. However, to date, none has complied.

The following are your concerns:

1. May these structures be given legal status if it is compliant with building

restriction codes particulary for those with claims of ownership?
2. What would be the legal remedies available to the municipality in order to
remove these structures from the forest reserve?
3. May the building official issue demolition orders for these structures for having
no building permit as per the Building Code of the Philippines?
4. May the office of the mayor issue a demolition order for these structures if
there is no ordinance granting the mayor authority to do so?

Applicable Laws:

PRESIDENTIAL DECREE No. 705 (Revised Forestry Code)

Section 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited and classified and, when practicable, surveyed, and which
have not been reserved for public or quasi-public uses, not appropriated by the
Government, nor in any manner become private property, nor those on which a private
right authorized and recognized by this Act or any other valid law may be claimed, or
which, having been reserved or appropriated, have ceased to be so. However, the
Governor-General may, for reasons of public interest, declare lands of the public
domain open to disposition before the same have had their boundaries established or
been surveyed, or may, for the same reasons, suspend their concession or disposition
by proclamation duly published or by Act of the Legislature.

R.A. 7160 (Local Government Code)

SECTION 444. The Chief Executive: Powers, Duties, Functions and Compensation. (a)
The municipal mayor, as the chief executive of the municipal government, shall exercise
such powers and performs such duties and functions as provided by this Code and
other laws.

(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this
Code, the municipal mayor shall:

(3) Initiate and maximize the generation of resources and revenues, and apply the same
to the implementation of development plans, program objectives and priorities as
provided for under Section 18 of this Code, particularly those resources and revenues
programmed for agro-industrial development and country-wide growth and progress,
and relative thereto, shall:

(vi) Require owners of illegally constructed houses, buildings or other structures to

obtain the necessary permit, subject to such fines and penalties as may be imposed by
law or ordinance, or to make necessary changes in the construction of the same when
said construction violates any law or ordinance, or to order the demolition or removal of
said house, building or structure within the period prescribed by law or ordinance;

(vii) Adopt adequate measures to safeguard and conserve land, mineral, marine, forest,
and other resources of the municipality;

PRESIDENTIAL DECREE NO. 1096  - ADOPTING A NATIONAL BUILDING CODE

OF THE PHILIPPINES 

Sec. 207. Duties of a Building Official. — 

In his respective territorial jurisdiction, the Building Official shall be primarily responsible
for the enforcement of the provisions of this Code as well as of the implementing rules
and regulations issued therefor. He is the official charged with the duties of issuing
building permits.

In the performance of his duties, a Building Official may enter any building or its
premises at all reasonable times to inspect and determine compliance with the
requirements of this Code, and the terms and conditions provided for in the building
permit as issued.
When any building work is found to be contrary to the provisions of this Code, the
Building Official may order the work stopped and prescribe the terms and/or conditions
when the work will be allowed to resume. Likewise, the Building Official is authorized to
order the discontinuance of the occupancy or use of any building or structure or portion
thereof found to be occupied or used contrary to the provisions of this Code.

Applicable jurisprudence:

G.R. No. 211356, September 29, 2014, CRISOSTOMO B. AQUINO, PETITIONER,

VS. MUNICIPALITY OF MALAY, AKLAN, 

In this case, the Supreme Court Ruled that the    Respondent mayor has the power
to order the demolition of illegal constructions  We still find in this case that the
LGU may nevertheless properly order the hotel’s demolition. This is because, in the
exercise of police power and the general welfare clause, 18 property rights of individuals
may be subjected to restraints and burdens in order to fulfill the objectives of the
government. Otherwise stated, the government may enact legislation that may interfere
with personal liberty, property, lawful businesses and occupations to promote the
general welfare.19cralawlawlibrar

Analysis and Conclusion:

Based on the facts and the applicable laws, here is my analysis and answers to
your queries:

1. The structures cannot be given legal status even if it is compliant with building
restriction codes. The reason is that the area where the settlers have constructed
a building is considered a forest reserve. Pursuant to Section 8 of PD 705, these
lands cannot be appropriated unless there is a law passed by the law making
body. In this case, there was no law passed declaring that the communal forest
in your area can be appropriated or used for private purpose.

2. The building official cannot issue demolition orders for these structures for having
no building permit -- the law does not give him the power to do so. According to
Section 207 of PD 1096, he is only given the power to order the stoppage of the
work; and/or order the discontinuance of the occupancy or use of the building
structure in case there is a violation to the provisions of the building code. There
is nothing from the words of the law that he may issue a demolition order.

3. The office of the mayor issue a demolition order for these structures even if there
is no ordinance granting the mayor authority to do so. Such power is granted to
him under the Local Government Code which authorizes city and municipal
governments, acting through their local chief executives, to issue demolition
orders. Under existing laws, the office of the mayor is given powers not only
relative to its function as the executive official of the town; it has also been
endowed with authority to hear issues involving property rights of individuals and
to come out with an effective order or resolution thereon.

I hope these answers helped you clear your thoughts and enlightened you
about your concerns. I appreciate the opportunity to advise you regarding this
matter. Please let me know if you wish to discuss any of these issues further.
Thank you.

Yours truly,

ATTY. CAROL O. AUGUSTO