Q. RE: BUILDER IN GOOD OR BAD FAITH
Dear Atty. Rogelio, magandang araw po! Nalaman ko po ang email address mo sa youtube. Nakabili ako ng lupa (rights), 35 sq.meters ang laki, sa Tandang Sora, Quezon City noong 2016. Pinatayuan ko ng bahay (concrete) ang lupa sa parehong taon.
Nagkaproblema ako dito sa MALING SUKAT na sinabi ng asusasyon sa akin, imbes na patatsulok… parihaba ang binigay na sukat. Nasakop ko pala ng bahagya ang katabing bakanteng lote na pagmamay-ari ni letter A na lingid din sa kaalaman ni letter A ang pagsakop. Nalaman na lang namin ang pagsakop noong ibinenta ni letter A ang lote kay letter B ilang buwan ang nakaraan pagkatapos ng bayaran.
Pumapayag ako na gigibain nila ang structure na pumasok sa pag-aari nila pero ang gusto naman ni letter B ay ako ang gagastos or ako mismo ang maggigiba. Medyo pahirapan na rin kami pinansyal simula ng pandemya.
Ito po ang itatanong ko, Atty.: Makatarungan po ba na HINDI ako ang maggigiba o gagastos ng paggiba sa lumagpas sa lote nila?
Ang rason ko kasi, nabili ni letter B ang lupa sa taong 2018 at naipatayo ko ang building taong 2016. Kumbaga nandoon na ang structure nung binayaran ni letter B ang lupa. Ako po ay umaasa na bigyan ng linaw ang katanungan ko. Marami pong salamat. Sincerely yours, KDA/
ANS: Ang question sa usapin mo ay kung sino sa inyo ng Letter B ang maituturing na builder and buyer in good at bad faith. In the case of the Heirs of Durano v. Spouses Uy, the Supreme court ruled the remedies available to the landowner:
The Civil Code provides:
Art. 449. He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right of indemnity.
Art. 450. The owner of the land on which anything has been built, planted or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted or sowed; or he may compel the builder or planter to pay the price of the land, and the sower the proper rent.
Art. 451. In the cases of the two preceding articles, the landowner is entitled to damages from the builder, planter or sower. xxx
Based on, these provisions, the owner of the land has three alternative rights: (1) to appropriate what has been built without any obligation to pay indemnity therefor, or (2) to demand that the builder remove what he had built, or (3) to compel the-builder to pay the value of the land. In any case, the landowner is entitled to damages under Article 451.
My view taking into consideration the existing jurisprudence, the builder is presumed in bad faith, if one fails to exercise the required due diligence like a good father of a family in ascertaining that the land where the construction was made actually belongs to the builder.
The required due diligence includes, among others having the land surveyed based on official records or documents of ownership of the builder of his land. Hence, having just to completely rely on a mere say so of somebody in the association without having the statement validated fall short of the benchmark of the required due diligence.
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