Republic of the Philippines

Province of Maharlika
Municipality of San Quintin

January 30, 2020

DIAN BALBASTRO
Chief Executive Assistant to the Mayor
Municipality of San Quintin

Mada’am:

The following are my corresponding legal analysis to the questions that your office asked, to wit:

1. In as much as the notice of the building official has a directive to apply a building permit,
may these structures be given legal status if it is compliant with building restriction codes
particularly for those with claims of ownership?

No. The structures may not be given legal status.

In the case of Mayor Vargas et al., vs Cajucom, G.R. No. 171095, June 22, 2015,
the Supreme Court held that:

The reality that two of the three obligations, those which would "require
owners of illegally constructed structures to obtain the necessary permit" and
"make necessary changes in the construction of said structures" are simply not
enforceable due to the inherent illegality of the structures concerned which were
all built on public areas. No amount of permits nor change in construction would
legitimize the illegal structures as they are built on property for public use, which
is the public highway. Such is a factual finding that is binding on this Court. xxx
Puno et al. will never legally acquire the same by prescription, for prescription
does not run against the State or its subdivisions on any of its non-patrimonial
property.60 The provincial road whose shoulder was occupied by these defendants
is one such non-patrimonial property. And as far as the structures obstruct free
passage to the road, they likewise will never attain legality by mere lapse of time.

In the same vein, even though that the illegal settlers, in this present controversy, who have
entered the communal forest and become compliant with building restriction codes, particularly
for those with claims of ownership, such compliance is not enforceable due to the inherent
illegality of the structures concerned which were built on a communal forest. The informal
settlers, as termed before as “illegal settlers” or particularly for those with claims of ownership,
will never legally acquire the same by prescription, for prescription does not run against the state
or its political subdivisions on properties which are non-patrimonial. Thus, despite of the
compliance of the building restriction code, the structures build therein, cannot be given or attain
legal status because the land where they are G.R. No. 171095 June 22, 2015

MAYOR MARCIAL VARGAS and ENGR. RAYMUNDO DEL ROSARIO, Petitioners,

vs.
FORTUNATO CAJUCOM,
 erected is not subject to acquisition or their possession is no prescription. In other
words, it cannot be owned by any person regardless of how long of his possession or
occupation of the said land.

2. Would the Mayor would have the liability should he order the demolition of these
structures from the forest reserve?

No, the mayor would have no liability should he order the demolition of these
structures from the forest reserve. While the issuance of demolition order is vested with
the official building under the National Building Code of the Philippines or upon order of
the court, however, Section 455 (b) 3 (vi) of the Local Government Code provides
authority for any Chief executives to issue a demolition order. The following is the
pertinent provision of said law:

Section 455. Chief Executive; Powers, Duties and Compensation.

(a) xxx
(b) xxx

(1) xxx

(2) xxx;

(3) xxx:

(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;

Hence, taking a glance of the forgoing provision of the Local Government Code, it is
explicitly provided that the City Mayor is vested with authority by the law to issue demolition
orders. Therefore, if the Mayor issued a demolition order in accordance with Section 455 (b) 3
(vi) of the Local Government Code, he cannot be made liable.

3. What would be the legal remedies available to the municipality in order to remove these
structures from the forest reserve?

The municipality has to undergo the appropriate proceeding as set out in the NBCP
and its IRR or avail of the proper judicial process to recover the subject property from
petitioners. The Municipality should file an ejectment case for forcible entry with application
or prayer for the demolition of the structures therein, before the Municipal Trial Court,
because the land where the structures are erected is a forest reserve and owned by the state.
The state thru the Municipality of san Quintin is the owner of the said forest reserve

4. May the building official may issue demolition orders for these structures for having
no building permit as per building code of the Philippines?

No, the building official cannot issue demolition orders for said structures for having no
building permit.

In the case of Leoncio Alangdeo et al., et. Al., the Supreme Court, citing the provisions of
the Presidential Decree 1096, otherwise known as the "National Building Code of the Philippines"
(NBCP), it held that, the mere fact that a structure is constructed without a building permit, as
well as non-compliance with work stoppage order, without more, will not call for a summary
demolition, but subjects the violator to an administrative fine under Section 212, 41 Chapter II of
the NBCP, or a criminal case under Section 213 42 of the same. Indeed, while Section 301, Chapter
III of the NBCP states that " [ n] o person, firm or corporation, including any agency or
instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish
any building or structure or cause the same to be done without first obtaining a building permit
therefore from the Building Official assigned in the place where the subject building is located or
the building work is to be done," the remedy of summary abatement against the bare absence of a
building permit was not provided for.

Meanwhile, Section 215 of the NBCP, and its corresponding IRR provision (both of which
are respectively quoted hereunder) states that before a structure may be abated or demolished,
there must first be a finding or declaration by the Building Official that the building/structure is a
nuisance, ruinous or dangerous:

Section 215. Abatement of Dangerous Buildings.

When any building or structure is found or declared to be dangerous or ruinous, the

Building Official shall order its repair, vacation or demolition depending upon the degree
of danger to life, health, or safety. This is without prejudice to further action that may be
taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the
Philippines.

PROCEDURE FOR ABATEMENT/ DEMOLITION OF DANGEROUS/ RUINOUS

BUILDINGS/ STRUCTURES

5. Procedure for Demolition of Buildings

The following steps shall be observed in the abatement/demolition of buildings under this
Rule:

5.1 There must be a finding or declaration by the Building Official that the
building/structure is a nuisance, ruinous or dangerous.

5.2 Written notice or advice shall be served upon the owner and occupant/s of such finding
or declaration, giving him at least fifteen ( 15) days within which to vacate or cause to be
vacated, repaired, renovated, demolished and removed as the case may be, the nuisance,
ruinous or dangerous building/structure or any part or portion thereof.

5.3 Within the fifteen-day (15) period, the owner may, if he so desires, appeal to the
Secretary the finding or declaration of the Building Official and ask that a re-inspection or
re-investigation of the building/structure be made

Therefore, the building official cannot issue demolition order based solely on lack of
building permit.