Dear PAO,

I am a homeowner in an exclusive subdivision. I have been paying the annual dues regularly until 2021, when I eventually decided to lease it out to my friend. The lease period is five years, and annexed to our contract is a document in which I expressly authorize the lessee to be a member of our association, considering that he will be staying there for five years. Last month, I inquired from the homeowners’ association management if I could use the subdivision’s clubhouse for my son’s birthday, but they informed me that I was not entitled to its use because I did not pay the annual fees. Can they do that to me even though I own the property inside the subdivision?

Lucille

Dear Lucille,

Please be informed that Sections 5, 6 and 7 of Republic Act 9904, otherwise known as the “Magna Carta for Homeowners and Homeowners’ Associations,” provide that:

“Section 5. Rights and Duties of Every Homeowner. – Every homeowner has the right to enjoy the basic community services and facilities Provided That he/she pays the necessary fees and other pertinent charges.

“Section 6. Qualification of a Member. – A homeowner as defined under this Act shall be qualified to be a member of an association: Provided, however, That a lessee, usufructuary, or legal occupant shall have the right of a homeowner as set forth under this Act upon procurement of a written consent or authorization from the owner of the lot or housing unit.

“Until such consent or authorization is revoked in writing, the owner of the lot or housing unit is deemed to have waived his/her rights enumerated under Section 7 of this Act, except subsection (b) of the same section which can be simultaneously enjoyed by both the owner and the lessee.

“xxx

“Section 7. Rights of a Member. – An association member has full rights:

“(a) to avail of and enjoy all basic community services and the use of common areas and facilities;

“(b) to inspect association books and records during office hours and to be provided upon request with annual reports, including financial statements;

“(c) to participate, vote and be eligible for any elective or appointive office of the association subject to the qualifications as provided for in the bylaws;

“(d) to demand and promptly receive deposits required by the association as soon as the condition for the deposit has been complied with or the period has expired;

“(e) to participate in association meetings, elections and referenda, as long as his/her bona fide membership subsists; and

“(f) to enjoy all other rights as may be provided for in the association bylaws.” (Emphasis supplied)

The right of a member of a homeowners’ association (HOA) to benefit from its facilities is not absolute. The exercise of such a right comes with a condition, and that is the payment of the necessary fees and charges imposed by the HOA. In your case, while you have been a paying member for the past years, your right to avail yourself of the use of the common areas and facilities within the subdivision ceased the moment you subjected your property for lease, with a concurrent grant of authority to the lessee, allowing such lessee to exercise the rights of an HOA member. By virtue of your written authorization, you are deemed to have waived the exercise of your rights as a homeowner, and it now becomes incumbent upon the lessee to pay the necessary fees and charges imposed by the HOA.

Nevertheless, as a homeowner, you are still entitled to inspect association books and records despite the existence of the written grant issued to your lessee, as this right can be exercised simultaneously by the owner and the authorized lessee.

We hope that we were able to answer your queries. This advice is 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 on.

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]