Eminent Domain ( Expropriation ) – Republic Act 8974 ( Part 2 )

hello everyone,

Here’s another issue that must not be overlooked when buying a property.  the issue of eminent domain or expropriation is something that can’t be contested once it’s already decided by the government so once again, this is part of “due diligence” when buying a property !

Are you aware that when major thoroughfares ( C5, C6, SLEX, NLEX, SCTEX, EDSA … to name a few ) were built, land was expropriated and owners found themselves unjustly compensated for the land taken ?  Please be aware that “just compensation” is a must for expropriation proceeding to occur, otherwise, the court will have to intervene to determine to actual market value !  This is the LAW !

Eminent domain

Eminent domain is “the power of the nation or a sovereign state to take, or to authorize the taking of, private property for a public use without the owner’s consent, conditioned upon payment of just compensation. It is used interchangeably with “expropriation“.

It is acknowledged as an inherent political right, founded on a common necessity and interest of appropriating the property of individual members of the community to the great necessities of the whole community. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III (Bill of Rights), Section 9 and (2) that no person shall be deprived of his/her life, liberty, or property without due process of law under Art. III, Sec. 1

Public use

Public use can be identified with public purpose, public interest and public convenience.However, there is no precise meaning of public use.

  • Generally accepted meaning

Public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, which contributes to the general welfare and the prosperity of the whole community.

  • Limited meaning

Use by the public or public employment, that a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned.

Just compensation

Just compensation is the full and fair equivalent of the property taken from its owner by the expropriator, and the gauge for computation is not the taker’s gain but the owner’s loss. In order for the payment to be “just,” it must be real, substantial, full, and ample; made within a reasonable time from the taking of the property.

The full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain but the owner’s loss. The word “just” is used to intensify the meaning of the word “compensation” to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, ample.

It is the value as of the time of the taking that is the measure of the just compensation.

Stages and procedure

There are two stages in every action of expropriation. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends either with an order of dismissal or an order of condemnation. The second phase of the eminent domain action is concerned with the determination by the court of the “just compensation for the property sought to be taken.

REPUBLIC ACT NO. 8974

AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Declaration of Policy. – Article III, Section 9 of the Constitution states that private property shall not be taken for public use without just compensation. Towards this end, the State shall ensure that owners of real property acquired for national government infrastructure projects are promptly paid just compensation.

SEC. 2. National Government Projects. – The term “national government projects” shall refer to all national government infrastructure, engineering works and service contracts, including projects undertaken by government-owned and controlled corporations,all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate-and-Transfer Law, and other related and necessary activities, such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair, and rehabilitation, regardless of the source of funding.

SEC.3. Modes of Accounting Real Property. – The government may acquire real property needed as right-of-way, site or location for any national government infrastructure project through donation, negotiated sale, expropriation or any other mode of acquisition as provided by law.

SEC. 4. Guidelines for Expropriation Proceedings. – Whenever it is necessary to acquire real property for the right-of-way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines:

(a) Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) one hundred percent (100%) of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof;

(b) In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal valuation for said area; and

(c) In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof.

Upon compliance with the guidelines above mentioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project.

Before the court can issue a Writ of Possession, the implementing agency shall present to the court a certificate of availability of funds from the proper official concerned.

In the event that the owner of the property contests the implementing agency’s proffered value, the court shall determine the just compensation to be paid the owner within sixty (60) days from the date of filing of the expropriation case. When the decision of the court becomes final and executory, the implementing agency shall pay the owner the difference between the amount already paid and the just compensation as determined by the court.

SEC. 5. Standards for the Assessment of the Value of the Land Subject of Expropriation Proceedings or Negotiated Sale. – In order to facilitate the determination of just compensation, the court may consider, among other well-established factors, the following relevant standards:

(a) The classification and use for which the property is suited;

(b) The developmental costs for improving the land;

(c) The value declared by the owners;

(d) The current selling price of similar lands in the vicinity;

(e) The reasonable disturbance compensation for the removal and/or demolition of certain improvement on the land and for the value of improvements thereon;

(f) This size, shape or location, tax declaration and zonal valuation of the land;

(g) The price of the land as manifested in the ocular findings, oral as well as documentary evidence presented; and

(h) Such facts and events as to enable the affected property owners to have sufficient funds to acquire similarly-situated lands of approximate areas as those required from them by the government, and thereby rehabilitate themselves as early as possible.

SEC.6. Guidelines for Negotiated Sale. – Should the implementing agency and the owner of the property agree on a negotiated sale for the acquisition of right-of-way, site or location for any national government infrastructure project, the standards prescribed under Section 5 hereof shall be used to determine the fair market value of the property, subject to review and approval by the head of the agency or department concerned.

SEC.7. Valuation of Improvements and/or Structures. – The Department of Public Works and Highways and other implementing agencies concerned, in coordination with the local government units concerned in the acquisition of right-of-way, site or location for any national government infrastructure project, are hereby mandated to adopt within sixty (60) days upon approval of this Act, the necessary implementing rules and regulations for the equitable valuation of the improvements and/or structures on the land to be expropriated.

SEC.8. Ecological and Environmental Concerns. – In cases involving the acquisition of right-of-way, site or location for any national government infrastructure project, the implementing agency shall take into account the ecological and environmental impact of the project. Before any national government project could be undertaken, the agency shall consider environmental laws, land use ordinances and all pertinent provisions of Republic Act No. 7160, as amended, otherwise known as the Local Government Code of 1991.

SEC.9. Squatter Relocation. – The government through the National Housing Authority, in coordination with the local government units and implementing agencies concerned, shall establish and develop squatter relocation sites, including the provision of adequate utilities and services, in anticipation of squatters that have to be removed from the right-of-way or site of future infrastructure projects. Whenever applicable, the concerned local government units shall provide and administer the relocation sites.

In case the expropriated land is occupied by squatters, the court shall issue the necessary ” Writ of Demolition” for the purpose of dismantling any and all structures found within the subject property. The implementing agency shall take into account and observe diligently the procedure provided for in Sections 28 and 29 of Republic Act No. 7279, otherwise known as the Urban Development and Housing Act of 1992.

Funds for the relocation sites shall come from appropriations for the purpose under the General Appropriations Act, as well as from appropriate infrastructure projects funds of the implementing agency concerned.

SEC.10. Appropriations for Acquisitions of Right-of -Way, Site or Location for Any National Government Infrastructure Project in Advance of Project Implementation. – The government shall provide adequate appropriations that will allow the concerned implementing agencies to acquire the required right-of-way, site or location for any national government infrastructure project.

SEC.11. Sanctions. – Violation of any provisions of this Act shall subject the government official or employee concerned to appropriate administrative, civil and/or criminal sanctions, including suspension and/or dismissal from the government service and forfeiture of benefits.

SEC.12. Rules and Regulations. – A committee composed of theSecretary of the Department of Public Works and Highways as chairperson, and the secretaries of the Department of Transportation and Communications, the Department of Energy, and the Department of Justice, and the presidents of the leagues of provinces, cities and municipalities as members shall prepare the necessary rules and regulations for the proper implementation of this Act within sixty (60) days from its approval.

SEC. 13. Separability Clause. – If any provision of this Act is declared unconstitutional or invalid, other parts or provisions hereof not affected shall continue to be in full force and effect.

SEC. 14. Repealing Clause. – All laws, decrees, orders, rules and regulations or parts thereof inconsistent with this Act are hereby repealed or amended accordingly.

SEC. 15. Effectivity Clause. – This Act shall take effect fifteen (15) days following its publication in at least two (2) newspapers of general circulation.

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Thank you.

robert
Robert G. Sarmiento Properties
Professional Affiliation :
Philippine Association of Real Estate Boards
Member, City of Taguig Real Estate Board 2016 – 2017
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President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Brokers
San Juan Mandaluyong Chapter 1998, 1999
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