REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA

________ DIVISION

++___,
Petitioner,

-versus- GR No. 1111111

XXXXX.,,
Respondents.
x ------------------------------------------x

MOTION FOR RECONSIDERATION

(On the Decision dated 25 January 2017)

Respondents, by counsel, most respectfully state:

1. On xx March 201x, respondents received a copy of the Decision of

the Honorable Court dated xx January 201x. The dispositive portion of the
Decision reads:

“WHEREFORE, the petition is GRANTED. The March x,

201xx Decision of the Regional Trial Court, Branch 2x, Manila,
in Civil Case No xxxxxxx is hereby REVERESED and SET
AISDE. The Court declares that:

“xxxxxx”

SO ORDERED.”

THE HONORABLE COURT

CORRECTLY RULED THAT
RESPONDENT Mx IS A
MEMBER OF RESPONDENT
xxxxx.

2. At the onset, it must be stressed that this Honorable Court correctly

ruled that respondent xxxxx is a member of xxxxxxr.
 3. Respondent xxxxxx is the owner of the unsold xxxx units with
total voting rights of xxxx. As such, it automatically becomes a member of
the respondent xxxxx

4. Under Sections 2 and 10 of the Condominium Act, a registered

owner of a unit in a condominium project automatically becomes a member
of the condominium corporation. Likewise, jurisprudence dictates that
ownership of a unit entitles one to become a member of a condominium
corporation.

5. Similarly, the Master Deed, Articles of Incorporation and By-Laws

of the respondent xxxxxxr in the instant case also provides that
“membership in the (xxxxxxx) shall be exclusive to owners and/or
purchasers of the units”, to wit:

“MASTER DEED
AND
DECLARATION OF RESTRICTION
OF xxxxxx

xxx

PART I
THE MASTER DEED

xxx

Section 09: MEMBERSHIP AND VOTING RIGHTS IN

THE CONDOMINIUM CORPORATION: Membership in the
CORPORATION shall be exclusive to the owners and/or
purchasers of the UNITS, the same being a mere
appurtenance of ownership.

a) All owners and/or purchasers of the UNITS in

the PROJECT shall automatically become members of the
CORPORATION, and shall be subject to the supervision and
control of the CORPORATION, and shall be governed by its
By-Laws and rules and regulations.

b) Membership of UNIT owners and/or

purchasers in the said CORPORATION is mandatory and
all obligations and liabilities that are attached thereto shall
constitute a lien on the UNIT, which lien may be annotated on
the corresponding title to the UNIT. The membership in the
CORPORATION cannot be alienated nor sold, transferred and
conveyed to any entity independent of the said UNIT.”

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 “ARTICLES OF INCORPORATION
OF
xxxxxx CORPORATION

xxx

SEVENTH: xxx

The members of the Corporation shall consist

exclusively of all the owners of the units in the said
CONDOMINIUM, who shall be issued individual Certificates
of Membership in such form as may be determined and
prescribed by the Board of Directors thereof. Membership in the
Corporation is not alienable from the ownership of the
condominium unit, it being a mere appurtenance thereto, and
shall not be transferable therefrom, separately from the said unit.
Any sale, transfer, conveyance or disposition of any
condominium unit shall in all cases include concomitant and
automatic transfer of membership to the new owner. The
foregoing conditions shall be inscripted in the Certificate of
Membership.”

“BY-LAWS
OF
Xxxxxx CORPORATION

xxx

ARTICLE II – MEMBERSHIP

Section 1: Members – Membership in the CORPORATION

shall be limited exclusively to the registered owners of the
private units in the CONDOMINIUM, who, under the
provisions of the MASTER DEED, automatically become
members of the CORPORATION.”

6. Applying the foregoing, respondent xxxxxxx is undoubtedly a

member of the respondent xxxxxx. Respondent xxxxxxx’s membership in
the condominium corporation, flows from its ownership of xxxx units and
the parking slots and storage areas attached thereto in the condominium.

THE HONORABLE COURT

ERRED IN HOLDING THAT
INDIVIDUAL RESPONDENTS
WHO ARE NON-MEMBERS

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CANNOT BE ELECTED AS
DIRECTORS AND OFFICERS OF
RESPONDENT xxxxxxxxx.

7. It is undeniable that respondent xxxxxxx is a juridical person. As

such, it can only act through its authorized representatives. This Honorable
Court correctly ruled that respondent xxxxxxxxx may appoint a duly
authorized representative.

8. This Honorable Court further discussed the nature of a corporation

stating that it can act only through natural persons duly authorized for the
purpose or by a specific act of its board of directors. It likewise quoted
Section 58 of the Corporation Code which provides for the rules in allowing
proxies in member’s meeting.

9. Thus, it is without question that respondent xxxxxxx had the right

to send its duly authorized representatives during the questioned general
membership meeting.

10. However, with all due respect, this Honorable Court erred when it
strictly applied Section 23 of the Corporation Code in the instant case.
Section 23 requires the director to be a member of record. Considering that
respondent xxxxxxxxx is a juridical person, it has no mind and physical
body of its own. As such, it can only act through its authorized
representatives.

11. Moreover, as a juridical person, respondent xxxxxxx is not

prohibited by any law or jurisprudence to appoint representatives to qualify
as members of the Board of Directors of respondent xxxxxxxxr. Neither
does the respondent xxxxxxxr’s Articles of Incorporation, Master Deed or
By-laws prevent such appointment of authorized representatives to represent
respondent xxxxxx in the Board.

12. Similarly, with all due respect to this Honorable Court, the
Opinions of the Securities and Exchange Commission shall be given weight
or be given ample consideration by this Honorable Court as guide in
deciding this case.

13. To reiterate, the Securities and Exchange Commission allows

juridical persons who are members of a condominium corporation to appoint
an officer or a duly authorized representative, or a trustee to qualify him as a
member of the Board of Directors of the condominium corporation in behalf
of a juridical person. SEC Opinion dated 16 April 1991, is reproduced as
follows:

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 14. Moreover, the By-laws of respondent xxxxxxr allows its owner-
members to designate any person or entity to represent him/her/it in
corporation and who shall be entitled to enjoy and avail
himself/herself/itself of all the rights and privileges, which includes the
right to be voted as a member of the Board of Directors.

15. Section 1, paragraph 2, Article II of the By-laws of respondent

xxxxxxxxr allows the registered owner-member to designate any person or
entity to represent him/her/it in the Condominium Corporation.

“Section 1: Members – xxx

The registered owner of any private unit in the

CONDOMINIUM may assign his/her/its lessee/s or buyer/s, or
to the actual occupant/s or possessor/s of his/her/its unit, or to
designate any person or entity to represent him/her/it in the
CORPORATION, subject to the submission of a written
notification to the Secretary of the CORPORATION of such
assignment or designation. Such assignment of memberships
rights or agency designation shall be valid and effective until the
same is revoked, likewise in writing, by the unit owner.”

16. While Section 1, paragraph 4, Article II of thereof provides that the

owner-member’s designated representative shall be entitled to enjoy and
avail himself/herself/itself of all the rights and privileges of a member. The
said provision provides:

“Section 1: Members – xxx

The assignee or the owner’s designated representative shall,

during the effectivity of his/her/its assignment or
designation, be entitled to enjoy and avail
himself/herself/itself of all the rights and privileges, and
perform all the duties and responsibilities, of a member of
the CORPORATION. Notwithstanding such assignment of
membership or agency designation, however, the registered
owner shall remain responsible for his/her/its assignees’ or
agent’s faithful compliance with the MASTER DEED And the
CORPORATION’s policies, rules and regulations, as well as the
payment of all assessment levied on the unit.”

17. Likewise, the rights and privileges of every member in

respondent xxxxxxxr are enumerated in Section 2 of Article II thereof, to
wit:

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 “Section 2. Rights and Privileges of Members – Every member
in good standing shall enjoy the following rights and
privileges:

a. Participate in all deliberations and vote on all issues

or matters brought before the general membership of
the CORPORATION;

b. Be eligible for any elective or appointive office or

position in the CORPORATION;”

xxx

18.Applying the above-quoted rules in the present case, individual

respondents were the duly authorized representatives of respondent xxxxxxx
in respondent Xxxxxxxxxr, with all the powers to exercise all membership
rights, including the right to vote and to be voted for as officers of the
respondent Xxxxxxxxxr. As such, individual respondents have the right to
avail themselves of all the rights and privileges, which includes the right to
be voted as members of the Board of Directors. Likewise, the election of
individual respondents as corporate officers is also valid.

19.In the case of PAUL LEE TAN et. al. v. PAUL SYCIP and
MERRITO LIM1, the Honorable Supreme Court provided:

" xxx membership in and all rights arising from a nonstock

corporation are personal and non-transferable, unless the articles of
incorporation or the by laws of the corporation provide otherwise. In other
words, the determination of whether or not "xxx members" are entitled to
exercise their xxx rights (through their executor or administrator), depends
on those articles of incorporation or bylaws. xxx" (Emphasis Ours)

20. As provided under the corporate by laws, The assignee or the

owner’s designated representative shall, during the effectivity of
his/her/its assignment or designation, be entitled to enjoy and avail
himself/herself/itself of all the rights and privileges, and perform all the
duties and responsibilities, of a member of the CORPORATION. In
other words, with this provision present in the by laws, respondent xxxxxxx
has the every right to let it's representative act in it's stead and avail for
himself/herself/itself of all the rights and privileges, and perform all the
duties and responsibilities, of a member of the CORPORATION. Therefore,
the representative is qualified to be voted upon and be a director for the
CORPORATION.

1
G.R. No. 153468, 17 August 2006

6
THE HONORABLE COURT
ERRED IN HOLDING THAT
QUORUM IS DETERMINED BY
THE MAJORITY OF ITS
ACTUAL MEMBERS IN CASES
OF NON-STOCK
CORPORATIONS.

20. Under the Corporation Code, the right to vote a member of a

non-stock corporation may be limited, broadened or denied. Section 89 of
the CorporationCide is clear on this matter, to wit:

“SECTION 89: Right to vote. – The right of the members of any

class or classes to vote may be limited, broadened or denied to
the extent specified in the articles of incorporation or the by-
laws. Unless so limited, broadened or denied, each member,
regardless of class, shall be entitled to one vote xxx”

21. In the instant case, the By-Laws and the Master Deed of
respondent Xxxxxxxxxr has unequivocally provided that a member is
entitled to “one (1) vote for every square meter and fraction thereof in
excess of one-half (1/2) square meter of the unit that he/she/it owns”.
Clearly, the voting rights of the members in respondent Xxxxxxxxxr would
depend on the area in square meters of the unit/s that they own.

22. For emphasis, pertinent portions of the By-Laws and Master Deed
are quoted herein, to wit:

“BY-LAWS
OF
1322 ROXAS BOULEVARD CONDOMINIUM
CORPORATION

xxx

ARTICLE II

xxx

Section 7. Voting Rights – Every member shall be entitled to

one (1) vote for every square meter and any fraction thereof
in excess of one-half (1/2) square meter of the unit that
he/she/it owns; provided, however, that only members in good
standing shall be entitled to exercise their right to vote. A
member in good standing is one who does not have any

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 outstanding obligation to the CORPORATION and who is not
currently subject to sanctions or penalties by the
CORPORATION.”

“ADDENDUM NO. 2 TO MASTER DEED

AND
DECLARATION OF RESTRICTIONS
OF 1322 ROXAS BOULEVARD

c) Each member of the CORPORATION in good

standing shall be entitled to one (1) vote for every square
meter and any fraction thereof in excess of one-half (1/2)
square meter of the total floor area of the UNIT that
he/she/it owns or purchased, whether the right to the said
vote is exercised by the member himself/herself/itself or
through a registered proxy. For the purpose of determining the
number of votes the member is entitled to, the total floor area of
the UNIT shall be the sum of the nominal area of the unit, the
area of the assigned storage room and total area of the assigned
parking space which is equivalent to the product of the number
of parking slots assigned multiplied by the fixed factor of 12.5
square meter per slot.”

23.Consequently, the presence or absence of a quorum at any general

membership meeting shall be determined based on the total area in
square meters of the unit/s that the members own.

24.Under Section 52 of the Corporation Code, majority of the

members in a non-stock corporation shall constitute a quorum, to
wit:

“Ses. 52. Quorum in meetings. – Unless otherwise provided for in this Code
or in the By-Laws, a quorum shall consist of the stockholders representing a
majority of the outstanding capital stock or the majority of the members in
the case of non-stock corporations.”

25.Similarly, Article II, Section 6 of the By-Laws of respondent

Xxxxxxxxxr also provides that quorum shall consist of the
majority of its members. The provision, however, is with further
condition that the said members are in good standing, to wit:

“Section 6. Quorum – The attendance of a simple majority of the members

who are in good standing shall constitute a quorum in any annual or special
meeting of the members of the CORPORATION and, unless otherwise
required by law or provided for in this BY-LAWS, the affirmative vote of a

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simple majority of those present in the said annual or special meeting, shall
be valid and binding upon the CORPORATION and all its members.”

26.It is therefore, expressly provided that only the voting rights of the
members who are in good standing are included in determining
whether or not there is a quorum in the said meeting. Otherwise
put, the presence or absence of a quorum shall be determined based
on the voting rights of all the units owned by the member in good
standing.

27.As held by the Honorable Supreme Court in the case of PAUL

LEE TAN et. al. v. PAUL SYCIP and MERRITO LIM 2, it was
stated that:

" xxx In nonstock corporations, the voting

rights attach to membership. Members vote as persons,
in accordance with the law and the by laws of the
corporation. Each member shall be entitled to one vote
unless so limited, broadened, or denied in the articles of
incorporation or by laws. We hold that when the
principle for determining the quorum for stock
corporations is applied by analogy to nonstock
corporations, only those who are actual members with
voting rights should be counted. xxx " (Emphasis Ours)

28.27. As mentioned above, the power to vote may be limited,

broadened, or denied in the articles of incorporation or by laws. In
the present case, it is no less than the By Laws of the respondent
Xxxxxxxxxr that provides for the broadened power of the
respondent xxxxxxxx's power to vote, which puts more sense to
the idea that in the determination of the presence or absence of a
quorum, it shall be determined based on the voting rights of all the
units owned by the member in good standing, and not by the
numerical constant of the members.

28. It is furthermore provided by the Honorable Supreme Court in

the same case:

" xxx Section 25 of the Code specifically provides

that a majority of the directors or trustees, as fixed in the
articles of incorporation, shall constitute a quorum for
the transaction of corporate business (unless the articles
of incorporation or the bylaws provide for a greater
majority). If the intention of the lawmakers was to base
2
G.R. No. 153468, 17 August 2006

9
 the quorum in the meetings of stockholders or members
on their absolute number as fixed in the articles of
incorporation, it would have expressly specified so.
Otherwise, the only logical conclusion is that the
legislature did not have that intention. xxx " (Emphasis
Ours)

29. By this pronouncement given by the Honorable Supreme Court,

we are at a loss as to why there seems to be an an incongruity
between this Honorable Court's decision and that of the Honorable
Supreme Cour, where it is very clear that with regard to the
determination of Quorum in terms of Non-Stock Corporations, If
the intention of the lawmakers was to base the quorum in the
meetings of stockholders or members on their absolute number as
fixed in the articles of incorporation, it would have expressly
specified so, such is not the case and more so, the By Laws of the
Respondent xxxxx provides otherwise.

THE HONORABLE COURT

ERRED IN HOLDING THAT
PETITIONER XXXX IS STILL A
MEMBER OF RESPONDENT
xxxxxxx.

29. It must be noted that petitioner, by virtue of a Deed of Assignment,

has already unconditionally ASSIGNED, TRANSFERRED and
CONVEYED all her rights, interests, and title to Unit 19B2 in 1322 Golden
Empire Tower Condominium in favor of her legitimate eldest nephew and
niece, Reynaldo Valera Lim and Dianna Mendoza Lim.

30. With all due respect to this Honorable Court, upon execution of the
Deed of Assignment, petitioner ceased to be the owner of 19B2 in 1322
Golden Empire Tower Condominium. This Honorable Court erred when it
held that until and unless the transfer is registered with the Register of Deeds
of the City of Manila, petitioner remains to be the registered owner of the
condominium unit and continues to be a member of xxxxxx.

Makati City, xx February 201x.

Lawyer’s signature block

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COPY FURNISHED:

LAW OFFICES
Counsel for plaintiff
Pasig City, Metro Manila

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