Public Notice (posted at www.architectureboard.ph)

The Professional Regulatory Board of Architecture (PRBoA)

URL/ website: www.architectureboard.ph

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PUBLIC NOTICE

as of 12 October 2009

by Electronic Re-Publication

(reposted 30 September 2010 at the PRBoA website)

TO: ALL National Government Agencies (NSAs) and their infrastructure staff, LGUs and their Acting Building Officials Building Officials and Civil Engineers (CEs) who insist on signing and sealing ARCHITECTURAL Plans and Documents (despite the clear provisions under several valid and subsisting laws), Planning/ Design Consultants, Contractors/ Constructors, Developers and Building/ Project Owners, Etc.

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The Philippine Institute of Civil Engineers (PICE) has published DPWH Memorandum Circular No. 2 signed by DPWH Secretary Hermogenes E. Ebdane, Jr., dated 16 September 2009 and directing all building officials “to process and issue the necessary permits and certificates to all applicants/owners notwithstanding whether the designs/plans and/or other pertinent documents xxx are prepared, signed or sealed by either a registered architect and/or civil engineer” until there is a final and executory decision in the xxx case;

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Before deciding and attempting to comply with the said 2009 DPWH directive, ALL Public Officials are advised (and warned anew) by the PRBoA to seriously consider the following:

1) R.A. No. 9266 (The Architecture Act of 2004) is a LAW that fully reflects State Policy!

R.A. No. 9266 LIMITS to registered and licensed architects (RLAs) the professional PRIVILEGE of preparing, signing and sealing Architectural Documents.

The 2008 and 2009 DPWH Orders now relied upon by the PICE and its Members (supposedly allowing Civil Engineers/ CEs to sign and seal Architectural documents or the “A” sheets of building plans) are mere Executive Issuances and are therefore NOT LAWS i.e. NOT State Policy.

Due to their inferior status, executive issuances CANNOT supersede the dictates of State Policies such as R.A. No. 9266.

2) As apparently certified thrice (3x) by two (2) agencies of the National Government (including the National Printing Office that publishes the Official Gazette), the authentic text of Sec. 302 of the 1977 National Building Code of the Philippines (P.D. No. 1096 i.e. another Law) NEVER stated that CEs can prepare, sign or seal Architectural Documents.

3) The CE law R.A. No. 544 of 1950, as amended by R.A. No. 1582 of 1956 apparently does NOT state that CEs can prepare, sign or seal Architectural Document NOR does it state that CEs are also privileged to practice the separate State-regulated profession of Architecture.

To date (more than 60 years later), the said law still apparently lacks a codified set of implementing rules and regulations (IRR).

The CEs are NOT academically nor sub-professionally (apprentice-level) trained to practice Architecture. The CEs have also NOT been tested by the State for their capability to satisfactorily understand architectural concepts and processes, much less undertake architectural services. Their curriculum and licensure examination syllabi/ table of specifications do NOT include the Architectural planning and design of buildings for human habitation or the preparation of Architectural Documents.

4) Only the Professional Regulation Commission (PRC) through its Professional Regulatory Boards (PRBs) have jurisdiction over the 44 State-regulated professions. Thus, only the PRC and the Professional Regulatory Board of Architecture (PRBoA) have EXCLUSIVE JURISDICTION over the practice of the State-regulated profession of Architecture.

Clearly, the DPWH Secretary does NOT have the power to regulate the practice of Architecture in the Philippines, particularly as regards the matter of the preparation, signing and sealing of Architectural Documents.

In recognition of this State Policy, the AUTHENTIC Sec. 304.5.b. of the 2004 Revised IRR of P.D. No. 1096 (The 1977 NBCP), as promulgated in October 2004 by a former DPWH Secretary states:

“SECTION 304. Issuance of Building Permit xxx

5. Terms and Conditions of Permits xxx

a. xxx

b. This permit shall be accompanied by the various applicable ancillary and accessory permits, plans and specifications signed and sealed by the corresponding design professionals who shall be responsible for the comprehensiveness and correctness of the plans in compliance to the Code and its IRR and to all applicable referral codes and professional regulatory laws.” (underscoring by the PRBoA)

R.A. No. 9266 (The Architecture Act of 2004) is one such professional regulatory LAW (PRL) i.e. the SPECIAL and LATER LAW on the practice of Architecture in the Philippines, that must be complied with in the issuance of the Building Permit by Building Officials nationwide.

The foregoing Sec. 304.5.b of the 2004 Revised IRR of P.D. No. 1096 (The 1977 NBCP) is a valid provision i.e. NO TRO nor injunction, that MUST be fully implemented and enforced by Building Officials nationwide.

5) To date (or more than 6 years after becoming the new Law on the practice of Architecture in the Philippines), there is NO TRO, NO injunction and NO pending constitutional question whatsoever on ANY of the provisions of R.A. No. 9266 (The Architecture Act of 2004) or of its 2004 IRR, particularly the ones that LIMIT to registered and licensed architects (RLAs) the professional PRIVILEGE of preparing, signing and sealing Architectural documents.

R.A. No. 9266 is therefore a valid and subsisting law that MUST be implemented by ALL Government officials, specifically including local government (LGU) officials such as city/ municipal administrators, legal officers, planning officers, treasurers and building officials, under pain of sanctions and administrative/ criminal liability, particularly under its Sec. 29.

6) Similarly, there is apparently NO standing TRO nor injunction on Secs. 302.3 and 302.4 of the 2004 Revised IRR of P.D. No. 1096 (the 1977 NBCP) since early 2008 (with the Court’s lifting/ dissolution of the 2005 injunction secured by the PICE and dismissal of the PICE petition filed against the DPWH Secretary).

Unless the DPWH Secretary expressly amends the said provisions under the 2004 Revised IRR of P.D. No. 1096 (by way of another set of revised IRRs that must be crafted by the DPWH, then be subjected through a properly documented public consultation and national publication), the Secs. 302.3 and 302.4 of the 2004 Revised IRR of P.D. No. 1096 MUST likewise be implemented and enforced by ALL Building Officials nationwide.

7) As the 2008 and 2009 DPWH Orders apparently intentionally VIOLATED R.A. No. 9266 (and therefore unduly favored the CEs/ PICE in the course of the violation of said Law), a former DPWH Secretary and 2 of his Undersecretaries were eventually SUED FOR GRAFT at the Office of the Ombudsman by the PRBoA in November 2009.

Also impleaded in the PRBoA Ombudsman complaint were the PICE and the publisher of the intercalated version of Sec. 302 of P.D. No. 1096, purporting (making it appear) that CEs could sign and seal Architectural Documents.

Similar cases are still being readied by the PRBoA for filing in the remaining months of 2010 against the concerned LGU officials, specifically Building Officials who continually refuse or willfully neglect to implement and enforce R.A. No. 9266 (The Architecture Act of 2004) despite sufficient public notices or calls from the PRBoA.

The issue involved is the implementation of Sec. 302.3 & 4 of the 2004 Revised IRR of P.D. No.1096, otherwise known as the 1977 National Building Code of the Philippines (NBCP). The said Memorandum Circular was allegedly issued by the DPWH Secretary in spite of the fact that R.A. No. 9266 (The Architecture Act of 2004), a national law that is in full effect, has LIMITED to Registered Licensed Architects (RLAs) the professional privilege of signing and sealing architectural plans/ documents or the drawing sheets, particularly labeled “A”, which form part of a building permit application;

After its publication by the DPWH in April 2005, Sec. 302.3 & 4 of the 2004 Revised IRR of P.D. No.1096 became effective over the period 01 through 24 May 2005 but was subsequently the subject of a writ of preliminary injunction dated 24 May 2005, issued by Manila RTC Branch 22 in Civil Case No. 05-112502 (PICE vs. Ebdane);

This writ of preliminary injunction was later LIFTED/ DISSOLVED by the Court in its Decision on 29 January 2008, and later re-affirmed on 04 May 2009 in a ruling which denied PICE’s 2008 motion for reconsideration; although the Decision is not yet final, Secs. 302. 3 & 4 are already executory by virtue of the lifting of the injunction;

While the foregoing ruling was elevated on appeal to the Court of Appeals, PICE has NOT secured a TRO or injunction against the implementation of Sec. 302.3 & 4 of the 2004 Revised IRR of P.D. No.1096 to date;

The certified text of Sec. 302 of P.D. No.1096 (1977 NBCP) does NOT state that civil engineers (CEs) can sign or seal architectural plans/ documents i.e. perspectives, floor/ ceiling/ roof plans, sections; elevations, detailed architectural drawings, schedules of finishes/ doors/ windows, architectural interior (AI) plans and designs, specifications, and the like for ALL buildings on Philippine soil;

Neither does the CE law R.A. No. 544 of 1956, as amended by R.A. No. 1582 of 1956 provide that civil engineers (CEs) can prepare, sign or seal architectural plans or documents;

On the contrary, R.A. No. 9266, otherwise known as the Architecture Act of 2004, which repealed R.A. No. 545 of 1950, as amended by R.A. No. 1581 of 1956, expressly LIMITS the preparation, signing or sealing of architectural plans/ documents for ANY building on Philippine soil, only to registered and licensed Architects (RLAs); the PICE-published DPWH Memorandum Circular No. 2 cannot supersede, amend nor disregard R.A. No. 9266, a law that has been in full effect since 10 April 2004;

Since there is NO legal impediment in the implementation of R.A. No. 9266 and its IRR after it became effective into law on 10 April 2004, the PICE has NOT acquired any right to publicly sanction the signing nor sealing of architectural plan/ documents for ANY building on Philippine soil by its member-civil engineers;

Under R.A. No. 9266, civil engineers (CEs, even if PRC-registered) are classified as unregistered persons who CANNOT undertake the preparation, signing or sealing of ANY architectural plan/ document for ANY building on Philippine soil; the CEs who insist on doing otherwise may thus be held LIABLE for the ILLEGAL practice of architecture and other violations of R.A. No. 9266;

Unless with the prior official concurrence of the Professional Regulation Commission (PRC) and the Professional Regulatory Boards (PRBs), NO person (not even the DPWH Secretary) has the unbridled right to unilaterally interpret the 2004 Revised IRR of P.D. No. 1096 with respect to State-regulated professional practices and documents, and to mislead the public into believing that civil engineers (CEs) are allowed to sign and seal architectural plans/ documents when the law says otherwise;

The DPWH, through its LGU Building Officials nationwide are therefore under formal advisement to CONTINUE with the implementation and enforcement of Sec. 302.3 & 4 of the 2004 Revised IRR of P.D. No.1096 since the same is consistent with at least 4 national laws i.e. R.A. No. 9266, P.D. No. 1096, R.A. No. 9514 (Fire Code of 2008) and R.A. No. 544/ 1582;

It is therefore the purpose of this publication to make the public AWARE that until such time that the constitutionality or validity of the said laws are properly challenged in the Supreme Court, the unabated practice of allowing civil engineers to sign and seal ANY architectural plan or document must be STOPPED once and for all, and those that may have already been signed and sealed by civil engineers (CEs) from 10 April 2004 to date are consequently of doubtful veracity and may render the concerned buildings as illegally constructed;

In the foregoing situation, the building owners who commissioned the CEs, the constructors and developers who used such plans i.e. architectural plans/ documents signed and sealed by CEs, as well as the LGU officers who approved such documents may be held LIABLE civilly, criminally and administratively; and

In the same vein, National Government and/or LGU officials who approved such documents may first be separately impleaded in administrative and/or special cases that might arise from the flagrant violations of R.A. No. 9266 and of P.D. No. 1096; legal steps in the future shall include the identification and prosecution of the concerned parties who may have conspired to violate R.A. No. 9266 and/or P.D. No. 1096.

Nothing follows.

Broker's professional fees

----- Forwarded Message ----
From: alejandro
To: davaorealtors@yahoogroups.com
Sent: Thursday, September 23, 2010 8:37:06 PM
Subject: [davaorealtors] Broker's professional fees

Dear Co-Realtors:

Here is a decision of the Supreme Court that will be of interest to those in realty profession. Highlights among them are explained using the language of the High Court. Taken from the decision itself, I am retyping very important words and phrases for emphasis:

1. Broker-
A) one who is engaged, for others, on a commission, negotiating contracts, relative to property with the custody of which he has no concern;

B) The negotiator between other parties, never acting in his own name, but in the name of those who employed him;

C) One whose occupation is to bring the parties together, in matters of trade, commerce or navigation.

Difference between a Sales Agent and a Broker

An agent receives a commission upon successful conclusion of sale.
A broker earns his merely by bringing the buyer and seller together, even if no sales is eventually made. In the instant case, it was the herein petitioner that caused the meeting of the buyer, the Sisters of Mary and the Gullas of Cebu as Seller.

D) Take note also how the Supreme Court regarding the amount per Deed of Sale and the Amount per Special Power of Atty issued to the Licensed Real Estate Broker, Manuel B. Tan.

E) There is that "efficient procuring cause, the saving gr ace of Manuel B. Tan and his associates.

The decision of the SC follpws:

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 143978 December 3, 2002

MANUEL B. TAN, GREGG M. TECSON and ALEXANDER SALDAÑA, petitioners,
vs.
EDUARDO R. GULLAS and NORMA S. GULLAS, respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This is a petition for review seeking to set aside the decision1 of the Court of Appeals2 in CA-G.R. CV No. 46539, which reversed and set aside the decision3 of the Regional Trial Court of Cebu City, Branch 22 in Civil Case No. CEB-12740.

The records show that private respondents, Spouses Eduardo R. Gullas and Norma S. Gullas, were the registered owners of a parcel of land in the Municipality of Minglanilla, Province of Cebu, measuring 104,114 sq. m., with Transfer Certificate of Title No. 31465.4 On June 29, 1992, they executed a special power of attorney5 authorizing petitioners Manuel B. Tan, a licensed real estate broker,6 and his associates Gregg M. Tecson and Alexander Saldaña, to negotiate for the sale of the land at Five Hundred Fifty Pesos (P550.00) per square meter, at a commission of 3% of the gross price. The power of attorney was non-exclusive and effective for one month from June 29, 1992.7

On the same date, petitioner Tan contacted Engineer Edsel Ledesma, construction manager of the Sisters of Mary of Banneaux, Inc. (hereafter, Sisters of Mary), a religious organization interested in acquiring a property in the Minglanilla area.

In the morning of July 1, 1992, petitioner Tan visited the property with Engineer Ledesma. Thereafter, the two men accompanied Sisters Michaela Kim and Azucena Gaviola, representing the Sisters of Mary, to see private respondent Eduardo Gullas in his office at the University of Visayas. The Sisters, who had already seen and inspected the land, found the same suitable for their purpose and expressed their desire to buy it.8 However, they requested that the selling price be reduced to Five Hundred Thirty Pesos (P530.00) per square meter instead of Five Hundred Fifty Pesos (P550.00) per square meter. Private respondent Eduardo Gullas referred the prospective buyers to his wife.

It was the first time that the buyers came to know that private respondent Eduardo Gullas was the owner of the property. On July 3, 1992, private respondents agreed to sell the property to the Sisters of Mary, and subsequently executed a special power of attorney9 in favor of Eufemia Cañete, giving her the special authority to sell, transfer and convey the land at a fixed price of Two Hundred Pesos (P200.00) per square meter.

On July 17, 1992, attorney-in-fact Eufemia Cañete executed a deed of sale in favor of the Sisters of Mary for the price of Twenty Million Eight Hundred Twenty Two Thousand Eight Hundred Pesos (P20,822.800.00), or at the rate of Two Hundred Pesos (P200.00) per square meter.10 The buyers subsequently paid the corresponding taxes.11 Thereafter, the Register of Deeds of Cebu Province issued TCT No. 75981 in the name of the Sisters of Mary of Banneaux, Inc.12

Earlier, on July 3, 1992, in the afternoon, petitioners went to see private respondent Eduardo Gullas to claim their commission, but the latter told them that he and his wife have already agreed to sell the property to the Sisters of Mary. Private respondents refused to pay the broker's fee and alleged that another group of agents was responsible for the sale of land to the Sisters of Mary.

On August 28, 1992, petitioners filed a complaint13 against the defendants for recovery of their broker's fee in the sum of One Million Six Hundred Fifty Five Thousand Four Hundred Twelve and 60/100 Pesos (P1,655,412.60), as well as moral and exemplary damages and attorney's fees. They alleged that they were the efficient procuring cause in bringing about the sale of the property to the Sisters of Mary, but that their efforts in consummating the sale were frustrated by the private respondents who, in evident bad faith, malice and in order to evade payment of broker's fee, dealt directly with the buyer whom petitioners introduced to them. They further pointed out that the deed of sale was undervalued obviously to evade payment of the correct amount of capital gains tax, documentary stamps and other internal revenue taxes.

In their answer, private respondents countered that, contrary to petitioners' claim, they were not the efficient procuring cause in bringing about the consummation of the sale because another broker, Roberto Pacana, introduced the property to the Sisters of Mary ahead of the petitioners.14 Private respondents maintained that when petitioners introduced the buyers to private respondent Eduardo Gullas, the former were already decided in buying the property through Pacana, who had been paid his commission. Private respondent Eduardo Gullas admitted that petitioners were in his office on July 3, 1992, but only to ask for the reimbursement of their cellular phone expenses.

In their reply and answer to counterclaim,15 petitioners alleged that although the Sisters of Mary knew that the subject land was for sale through various agents, it was petitioners who introduced them to the owners thereof.

After trial, the lower court rendered judgment in favor of petitioners, the dispositive portion of which reads:

WHEREFORE, UPON THE AEGIS OF THE FOREGOING, judgment is hereby rendered for the plaintiffs and against the defendants. By virtue hereof, defendants Eduardo and Norma Gullas are hereby ordered to pay jointly and severally plaintiffs Manuel Tan, Gregg Tecson and Alexander Saldaña;

1) The sum of SIX HUNDRED TWENTY FOUR THOUSAND AND SIX HUNDRED EIGHTY FOUR PESOS (P624,684.00) as broker's fee with legal interest at the rate of 6% per annum from the date of filing of the complaint; and

2) The sum of FIFTY THOUSAND PESOS (P50,000.00) as attorney's fees and costs of litigation.

For lack of merit, defendants' counterclaim is hereby DISMISSED.

IT IS SO ORDERED.16

Both parties appealed to the Court of Appeals. Private respondents argued that the lower court committed errors of fact and law in holding that it was petitioners' efforts which brought about the sale of the property and disregarding the previous negotiations between private respondent Norma Gullas and the Sisters of Mary and Pacana. They further alleged that the lower court had no basis for awarding broker's fee, attorney's fees and the costs of litigation to petitioners.17

Petitioners, for their part, assailed the lower court's basis of the award of broker's fee given to them. They contended that their 3% commission for the sale of the property should be based on the price of P55,180.420.00, or at P530.00 per square meter as agreed upon and not on the alleged actual selling price of P20,822,800.00 or at P200.00 per square meter, since the actual purchase price was undervalued for taxation purposes. They also claimed that the lower court erred in not awarding moral and exemplary damages in spite of its finding of bad faith; and that the amount of P50,000.00 as attorney's fees awarded to them is insufficient. Finally, petitioners argued that the legal interest imposed on their claim should have been pegged at 12% per annum instead of the 6% fixed by the court.18

The Court of Appeals reversed and set aside the lower court's decision and rendered another judgment dismissing the complaint.19

Hence, this appeal.

Petitioners raise following issues for resolution:

I.

THE APPELLATE COURT GROSSLY ERRED IN THEIR FINDING THAT THE PETITIONERS ARE NOT ENTITLED TO THE BROKERAGE COMMISSION.

II.

IN DISMISSING THE COMPLAINT, THE APPELLATE COURT HAS DEPRIVED THE PETITIONERS OF MORAL AND EXEMPLARY DAMAGES, ATTORNEYS' FEES AND INTEREST IN THE FOREBEARANCE OF MONEY.

The petition is impressed with merit.

The records show that petitioner Manuel B. Tan is a licensed real estate broker, and petitioners Gregg M. Tecson and Alexander Saldaña are his associates. In Schmid and Oberly v. RJL Martinez Fishing Corporation,20 we defined a "broker" as "one who is engaged, for others, on a commission, negotiating contracts relative to property with the custody of which he has no concern; the negotiator between other parties, never acting in his own name but in the name of those who employed him. x x x a broker is one whose occupation is to bring the parties together, in matters of trade, commerce or navigation." (Emphasis supplied)

During the trial, it was established that petitioners, as brokers, were authorized by private respondents to negotiate for the sale of their land within a period of one month reckoned from June 29, 1992. The authority given to petitioners was non-exclusive, which meant that private respondents were not precluded from granting the same authority to other agents with respect to the sale of the same property. In fact, private respondent authorized another agent in the person of Mr. Bobby Pacana to sell the same property. There was nothing illegal or amiss in this arrangement, per se, considering the non-exclusivity of petitioners' authority to sell. The problem arose when it eventually turned out that these agents were entertaining one and the same buyer, the Sisters of Mary.

As correctly observed by the trial court, the argument of the private respondents that Pacana was the one entitled to the stipulated 3% commission is untenable, considering that it was the petitioners who were responsible for the introduction of the representatives of the Sisters of Mary to private respondent Eduardo Gullas. Private respondents, however, maintain that they were not aware that their respective agents were negotiating to sell said property to the same buyer.

Private respondents failed to prove their contention that Pacana began negotiations with private respondent Norma Gullas way ahead of petitioners. They failed to present witnesses to substantiate this claim. It is curious that Mrs. Gullas herself was not presented in court to testify about her dealings with Pacana. Neither was Atty. Nachura who was supposedly the one actively negotiating on behalf of the Sisters of Mary, ever presented in court.

Private respondents' contention that Pacana was the one responsible for the sale of the land is also unsubstantiated. There was nothing on record which established the existence of a previous negotiation among Pacana, Mrs. Gullas and the Sisters of Mary. The only piece of evidence that the private respondents were able to present is an undated and unnotarized Special Power of Attorney in favor of Pacana. While the lack of a date and an oath do not necessarily render said Special Power of Attorney invalid, it should be borne in mind that the contract involves a considerable amount of money. Hence, it is inconsistent with sound business practice that the authority to sell is contained in an undated and unnotarized Special Power of Attorney. Petitioners, on the other hand, were given the written authority to sell by the private respondents.

The trial court's evaluation of the witnesses is accorded great respect and finality in the absence of any indication that it overlooked certain facts or circumstances of weight and influence, which if reconsidered, would alter the result of the case.21

Indeed, it is readily apparent that private respondents are trying to evade payment of the commission which rightfully belong to petitioners as brokers with respect to the sale. There was no dispute as to the role that petitioners played in the transaction. At the very least, petitioners set the sale in motion. They were not able to participate in its consummation only because they were prevented from doing so by the acts of the private respondents. In the case of Alfred Hahn v. Court of Appeals and Bayerische Motoren Werke Aktiengesellschaft (BMW)22 we ruled that, "An agent receives a commission upon the successful conclusion of a sale. On the other hand, a broker earns his pay merely by bringing the buyer and the seller together, even if no sale is eventually made." (Underscoring ours). Clearly, therefore, petitioners, as brokers, should be entitled to the commission whether or not the sale of the property subject matter of the contract was concluded through their efforts.

Having ruled that petitioners are entitled to the brokers' commission, we should now resolve how much commission are petitioners entitled to?

Following the stipulation in the Special Power of Attorney, petitioners are entitled to 3% commission for the sale of the land in question. Petitioners maintain that their commission should be based on the price at which the land was offered for sale, i.e., P530.00 per square meter. However, the actual purchase price for which the land was sold was only P200.00 per square meter. Therefore, equity considerations dictate that petitioners' commission must be based on this price. To rule otherwise would constitute unjust enrichment on the part of petitioners as brokers.

In the matter of attorney's fees and expenses of litigation, we affirm the amount of P50,000.00 awarded by the trial court to the petitioners.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The May 29, 2000 decision of the Court of Appeals is REVERSED and SET ASIDE. The decision of the Regional Trial Court of Cebu City, Branch 22, in Civil Case No. CEB-12740 ordering private respondents Eduardo Gullas and Norma S. Gullas to pay jointly and severally petitioners Manuel B. Tan, Gregg Tecson and Alexander Saldaña the sum of Six Hundred Twenty-Four Thousand and Six Hundred Eighty-Four Pesos (P624,684.00) as broker's fee with legal interest at the rate of 6% per annum from the filing of the complaint; and the sum of Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs of litigation, is REINSTATED.

SO ORDERED.

Vitug, and Carpio, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relationship to a party.
Azcuna, J., on official leave.

A look at the RESA Law

By Atty. Manuel M. Serrano (The Philippine Star) Updated October 01, 2010 12:00 AM/ http://www.philstar.com/Article.aspx?articleId=616761&publicationSubCategoryId=76

MANILA, Philippines - Throughout the country real estate developers are up in arms over certain provisions of R.A. 9646, also known as the “Real Estate Service Act of the Philippines” (RESA), which regulates the practice of real estate service in the Philippines, creating for the purpose a Professional Regulatory Board of Real Estate Service (PRBRES) and its subsequent funding.

Much of the protestations stem from Sections 28 (a) and 29 of the RESA Law, which prohibit real estate developers from practicing real estate service in the country. To many developers the practice of real estate service, which includes offering, advertising, soliciting, listing, promoting, negotiating and selling of real estate is not only an integral part of their business but an inherent right. Having invested millions in the development of their projects developers have much to lose in the business and it is only fitting that they provide not only quality products but quality real estate service as well.

More important is the fact that real estate developers have acquired, through years of practice and experience, greater knowledge, expertise, vision and professionalism in providing real estate service. For developers to go to brokers and middlemen, most of whom are in their employ anyway, is illogical, to say the least. Because developers, whether natural or juridical, place greater premium on giving quality service compared with brokers and middlemen whose major interest is to earn as high a commission as possible. That is why developers should be included in the exemption and not be subjected to licensing and registration the law now requires.

From a legal standpoint, the spirit on which the law was premised appears shaky and at best, unconstitutional, because the prohibition is not germane to the subject matter of the RESA Law. First, it is one thing to regulate the practice of real estate, which the law mandates, and it is quite another thing to prohibit developers from engaging in the practice of real estate service in connection with their own properties. The latter is not embraced by the former. This is obviously a violation of Section 26 (1) of Article VI of the Philippine Constitution which states that “every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.”

The prohibition against real estate developers from engaging in real estate service is an unreasonable and unlawful deprivation of their property rights, in violation of Section 1, Article III of the Constitution, which holds, among others, that “no person shall be deprived of life, liberty or property without due process of law.” It also impinges on their right to dispose of their property under Article 428 of the Civil Code.

The RESA Law simply puts developers at the mercy of brokers and middlemen who from the start had no participation in the development and conceptualization of the properties they will be servicing. Thus CREBA is urging the Professional Regulatory Commission to suspend the aforementioned provisions in the RESA which prevent developers from practicing real estate service on their own or as an alternative, exempt real estate developers from the licensing and registration requirements.

(Atty. Serrano is the chairman of the Chamber of Real Estate and Builders Associations Inc. or CREBA)

Aquino tells Cebuanos: Investment confidence in RP ‘very, very good’

Written by Wilfredo Rodolfo III / Reporter

Thursday, 16 September 2010 15:02

President Aquino visited Cebu on Wednesday, the first time since he took office, and with his economic team presented their plans to the business sector. Business-sector leaders presented their wish list during the interchange. Mr. Aquino lauded the strong public-private partnership in Central Visayas while reporting that investment confidence in the country was “very, very good.” He promised the rehabilitation of the Mactan Cebu International Airport as well as the establishment of a cold-chain logistics system spanning Mindanao, the Visayas and Luzon. “You are well poised to take advantage of the economic climate in the country,” the President said. “These linkages [public and private] can help us meet our mutual goals that will benefit the entire nation.” The business leaders presented him with seven requests, which they said would support the economic growth in the region: 1. Infrastructure projects worth P4.4 billion. 2. Priority for tourism and the value-chain network 3. Reduction of fuel and power costs 4. Expansion and modernization of the Mactan-Cebu airport 5. Mass transit system in Metro Cebu 6. Construction of the Panglao International Airport 7. Construction of a bridge connecting Cebu and Bohol In a press conference that followed, the President, gave promising remarks on the airport projects. But he said he would still have to look at the infrastructure wish list. “The Bohol-Cebu Bridge could be too ambitious,” he said. “The money may be there but we want to know if these are the projects that we really want.” The President’s economic team met with some 200 businessmen before the Chief Executive’s arrival, and presented their plans for the next six years. National Economic Development Authority Director-General Cayetano Paderanga said the administration was hoping a 5 percent to 6-percent GDP growth in 2010 and a 7 percent to 8-percent growth from 2011 to 2016. He also said the administration planned to roll out close to P740 billion worth of infrastructure projects in the medium term. The administration wants to add tourism to the three existing pillars of the Philippine economy at present—the OFW remittances, the semiconductor export industry and the BPO, Paderanga said. Finance Secretary Cesar Purisima said the administration is also determined to cut red tape and reduce, if not stamp out, corruption, while improving the country’s tax-collection efficiency to the regional standard of 17 percent from 13 percent. Trade Secretary Gregory Domingo said he planned to roll out the online-based Philippine Business Registry system in the next three months to expedite and streamline business registration in the country. Energy Secretary Jose Rene Almendras said his department would focus on building additional supply while working on energy efficiency in the country. The President later met close to 5,000 campaign volunteers as well and recipients of government poverty alleviation programs.

Government identifies 6 potential ‘sunshine industries’ for Mindanao

Written by Cai U. Ordinario / Reporter

Monday, 13 September 2010 12:32

THE government has identified six potential “sunshine industries” in Mindanao that could help the region industrialize and lift millions out of poverty, the National Economic and Development Authority (Neda) said. In a statement, the agency identified these as agro-industry, halal, eco-tourism, renewable-energy, mineral resources, and information and communication technologies. The development of these industries is incorporated in the region’s Long-Term Mindanao Development Plan, which will provide a blueprint for spurring economic growth in the region for the next 10 years, the Neda said. Socioeconomic Planning Secretary and Neda Director General Cayetano W. Paderanga Jr. has already endorsed the framework to Malacañang. “The Mindanao Strategic Development Framework outlines the directions and strategies that maximize the resources and potentials of the region for 2010 to 2020,” the agency said. “The framework pushes for the development of sustainable resource-based industrialization, improvement of employment generation, and establishment of efficient logistics support,” it said. The framework stresses the need to have effective peace-building strategies and strong governance and partnership with the private sector. It will also involve multilevel participation of different stakeholders for an inclusive peace process, which is one of the priority concerns of the new administration. The Neda said it envisions Mindanao to be strong, sustainable, competitive and a resource-based economy that will be responsive to local and global opportunities by 2020 even as it recognizes the challenges on poverty, conflict, economic and physical linkages, and governance. The Mindanao Neda Regional Offices and the ARMM-Regional Planning and Development Office led the creation of the framework. It was endorsed by all the Regional Development Councils of Mindanao and the Regional Economic Development and Planning Board of the ARMM.