Dear PAO,

I am already of advanced age and have been occupying a certain land in a subdivision. The land was included in the open spaces of the subdivision, and I heard from our homeowner’s association that it was donated to the local government sometime in 1980. I was informed by someone connected with the city hall that the land might be donated to me as long as I keep paying the corresponding real property tax. I am keeping my fingers crossed that, eventually, the land will be sold or donated to me. May I know if this is legally permissible?

Shina

Dear Shina,

Open spaces in a subdivision were initially governed by Section 31 of Presidential Decree (PD) 957, which reads:

“Donations of roads and open spaces to local government. The registered owner or developer of the subdivision or condominium project, upon completion of the development of said project, may, at his option, convey by way of donation the roads and open spaces found within the project to the city or municipality wherein the project is located. Upon acceptance of the donation by the city or municipality concerned, no portion of the area donated shall thereafter be converted to any other purpose or purposes unless after hearing, the proposed conversion is approved by the [National Housing] Authority.”

The above provision was subsequently amended by Section 2 of PD 1216 to read as follows:

“Roads, Alleys, Sidewalks and Open spaces. The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

“(a) 9% of gross area for high density or social housing (66 to 100 family lot per gross hectare).

“(b) 7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

“(c) 3.5% of gross area low-density or open market housing (20 family lots and below per gross hectare)

“These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands and non-buildable. The plans of the subdivision project shall include tree planting on such parts of the subdivision as may be designated by the Authority.

“Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality, and it shall be mandatory for the local governments to accept provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or municipality concerned. No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or purposes.” (Underscoring provided)

The second paragraph of the “WHEREAS CLAUSE” of the same law also provides that:

“WHEREAS, such open spaces, roads, alleys and sidewalks in residential subdivision are for public use and are, therefore, beyond the commerce of men.” (Underscoring provided)

The aforecited provisions of law clearly demonstrate that the land you are occupying cannot be sold or donated to you because it is an open space in a subdivision. As such, it is non-alienable public land and non-buildable.

The non-alienability of the open spaces in a subdivision was emphasized in the case entitled The City of Angeles, et al. v. Court of Appeals and Timog Silangan Development Corporation, GR 97882, Aug. 28, 1996, where the Supreme Court, through Honorable Chief Justice Artemio Panganiban Jr., stated:

“x x x considering the non-alienable character of such open space, in the light of the second Whereas clause of P.D. 1216 which declares that… such open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and are, therefore, beyond the commerce of men. x x x

“There is, therefore, no legal basis whatsoever to revoke the donation of the subject open space and to return the donated land to private respondent. The donated land should remain with the donee as the law clearly intended such open spaces to be perpetually part of the public domain, non-alienable and permanently devoted to public use as such parks, playgrounds or recreation areas.” (Underscoring provided)

Applying the quoted decision to your situation, the open spaces donated to the local government cannot be alienated and are beyond the commerce of men. These open spaces in every subdivision project are intended to create and maintain a healthy environment in human settlements to enhance the quality of life of the residents. This purpose cannot be achieved if the open spaces are devoted to any purpose other than the intention or purpose as provided under PD 1216.

We hope that we are 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.

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]