Dear PAO,

I have a parcel of land located in a subdivision. The lot adjacent to mine is designated as an open space where the homeowners used to gather in the afternoons for recreational activities. However, since a typhoon destroyed most of the garden in the open space, the homeowners no longer go there. My neighbor, Danny, who loves to cultivate plants, fixed the garden in the open space. Now, he no longer allows other homeowners to use the open space and demands that the land he gardened must be sold to him since he rehabilitated the said land. Can the open space in a subdivision be sold and converted into a residential lot?

Rudy

Dear Rudy,

Please be informed of Presidential Decree 1216, which defines the term “open space” as an area reserved exclusively for parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers, barangay centers, and other similar facilities and amenities. Moreover, Section 2 thereof states:

“Section 2. Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:

“Sec. 31. 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.”

Under the abovementioned provision of law, the parcel of land in a subdivision designated as an open space must be exclusively used for open space purposes such as parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers, barangay centers, and other similar facilities and amenities and may not be converted to any other purposes.

In the case of White Plains Association, Inc. v. Legaspi (GR 95522, Feb. 7, 1991), the Supreme Court, through Associate Justice Emilio Gancayco, held:

“Subdivision owners are mandated to set aside such open spaces before their proposed subdivision plans may be approved by the government authorities, and that such open spaces shall be devoted exclusively for the use of the general public and the subdivision owner need not be compensated for the same. A subdivision owner must comply with such requirement before the subdivision plan is approved and the authority to sell is issued.”

Hence, in your case, if the adjacent lot is indeed designated as the subdivision’s open space, it should be exclusively utilized as such and could not be sold as a residential lot.

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.

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]