Dear PAO,

I am an owner of a piece of land inside a subdivision. The property has been up for sale for more than ten years. There were interested buyers at first, but when they visited the property, they questioned the limitation on the number of floors allowed for construction and the ban on vehicles on the main road during nighttime. Some of the potential buyers wanted to use the property for commercial purposes and intended to construct a five-story building. However, due to the restrictions imposed by the homeowner association (HOA), no sale has ever gone through. Is it legal for the HOA to impose such restrictions and bans?

Edgar

Dear Edgar,

The answer to your query regarding whether the prohibition on the use of the main road at night can be found in Republic Act (RA) 9904, otherwise known as the Magna Carta for Homeowners and Homeowners’ Associations.

According to the said law, the HOA may regulate access to or passage through the subdivision/village roads to the subdivision roads for the purposes of preserving privacy, tranquility, internal security, safety, and traffic order. However, this is subject to the following requirements: [1] public consultations must be held; [2] existing laws and regulations must be met; [3] the authority of the concerned government agencies or units must be obtained; and [4] the appropriate and necessary memoranda of agreement must be executed among the concerned parties. (Sec. 10(d), RA 9904) In case the HOA intentionally or through gross negligence violates the law, it may be fined not less than P5,000 but not more than P50,000. (Sec. 23, RA 9904)

In your case, the HOA may impose a ban on using the main road at night to maintain privacy, security, and safety, provided that they follow the requisites outlined by the law. In contrast, if they failed to follow the required steps, the HOA may be held liable to pay fine, and the prohibition or ban may be lifted.

In response to your question regarding the limit on the number of floors a homeowner can construct, you should check your Transfer Certificate of Title (TCT) for any prohibition or restriction annotated therein. The Supreme Court, through Associate Justice Adolfo Azcuna, in South Pachem Development, Inc. v. Honorable Court of Appeals and Makati Commercial Estate Association, Inc. (GR 126260, Dec. 16, 2004), defined deed restriction as “a valid agreement freely and voluntarily agreed upon between the [developer] and [owner]. When an agreement between the parties has been forged, such contract becomes the law between the parties and each one is bound to comply therewith.”

A deed of restriction, annotated in the homeowner’s title, imposes limitations on the use or development of a property and carries significant consequences that affect property usage and development. Such a deed typically binds not only the current owner and developer of the property but also their successors and assigns. On the other hand, the HOA has the authority to regulate the development and construction inside the subdivision and enforce the restrictions stated in the deed as they may cause compliance with regard to height regulations, use of homes, or structures that may be built within the subdivision, in accordance with the law, rules and regulations, and existing deeds of restriction. (Sec. 10(j), R.A. No. 9904)

In your case, if there is an annotation in your title prohibiting the construction of a house taller than three stories, this restriction is enforceable both on you and your buyer. While deeds of restriction are legally binding, they can be modified or removed through ratification or amendment by the HOA, or through a court order.

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]