Dear PAO,

My husband and I have been saving our hard-earned money to acquire a lot where we plan to build our family home. We recently purchased a lot in an exclusive subdivision with the intention of building a three-story house. However, our homeowners’ association notified me that we can only build a two-story house. Are these kinds of restriction allowed?

Lily Rose

Dear Lily Rose,

One of the most important features of Philippine Property law is the right to ownership which is protected by Republic Act (RA) 386, otherwise known as the “Civil Code of the Philippines.” Articles 427 and 428 of the Civil Code of the Philippines define ownership as the independent and general right of a person to control a thing, particularly in terms of use, possession, enjoyment, disposition, and recovery, subject only to certain limitations established by law or agreements, viz.:

“Article 427. Ownership may be exercised over things or rights.

“Article 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law.

“The owner has also a right of action against the holder and possessor of the thing in order to recover it.”

Relative thereto, Sections 10 and 18 of Republic Act (RA) 9904, otherwise known as the “Magna Carta for Homeowners and Homeowners’ Association,” provide for the rights and powers of the homeowners’ associations (HoAs), to wit:

“Section 10. Rights and Powers of the Association. – An association shall have the following rights and shall exercise the following powers: xxx

(j) Cause compliance with regard to height regulations, easements, use of homes, buildings, edifices, or structures that may be built within the subdivision, in accordance with the National Building Code, zoning laws, HLURB rules and regulations, existing local ordinances, and existing deeds of restriction;”

Clearly, our laws recognize the owner’s right to control the property in line with these principles, subject to any limitations imposed by contracts, local ordinances, or zoning rules and regulations. Relative to validity of restrictions in deeds or contracts, Cezar Yatco Real Estate Services, Inc. vs. Bel-Air Village Association, Inc. GR 211780, 21 November 2018, with Honorable Associate Justice Marvic M.V.F. Leonen as ponente, is instructive:

“The Deed Restrictions is a restrictive covenant that governs how lot owners can use or enjoy their properties. It was annotated on the land titles issued to the lot owners and it is not disputed that lot owners are bound by these annotations under Section 39 of Act 496, or the Land Registration Act, which provides:

“Section 39. Every applicant receiving a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land who takes a certificate of title for value in good faith, shall hold the same free of all encumbrance except those noted on said certificate, and any of the following incumbrances which may be subsisting, xxx”

Thus, if there is indeed a validly instituted restriction on the number of stories or floors that can be built on the property that you purchased, then the same may be imposed or implemented by the HoA. Corollary, as a buyer, you are duty-bound to comply with such restriction as it forms part of your contractual obligation when you purchased the subject property. Although, as owner of the property, you have rights to use and develop it, these rights are not absolute and must comply with laws, contracts, local ordinances, and zoning rules and regulations.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]