Do You Stay in an Apartment: FYI Read This!
The number of families living in an apartment increases drastically today. In almost every corner, you will find signage of Apartment for Rent, House for Lease, or Borders Accepted. Hence, I found it very significant to explicate on laws governing Lease.
The discussion below will be focused on the following relevant questions:
1. Is it MANDATORY for a contract of rent or lease be recorded in the Registry of Property?
2. Who should make the repair in the house rented or leased, the lessor(the owner of the property) or the lessee( the person leasing the property)?
3. Is it legal for the lessee to admit borders or to sublease the apartment he is occupying?
Before proceeding, I would like to make it clear that the following discussion will be based on the premise that there has been no agreement between the parties as to who will pay the repair, or will borders be admitted by the lessee or not. Bear in mind that if there has been an agreement, it must be respected by both parties and general laws will not apply, provided still that the agreement is not contrary to law, public policy, or good morals.
As to the first point, it is not mandatory for a contract of lease or rent be recorded in the Registry of Property. The law does not strictly require the rent or lease to be registered. A mere verbal agreement between parties is enough to make a contract binding between them. It is nevertheless significant to have a registered agreement between parties, especially when the lease exceeds one year, to make the contract binding to third person. “Every lease of real estate may be recorded in the Registry of Property. Unless a lease is recorded, it shall not be binding upon third persons (CC Art. 1648).” It means that although the verbal contract of lease is valid between parties, it will not bind other people, who are not parties or did not take part in the contract, when the contract is not registered. Thus, if a third person purchased a land leased to a certain person, whose lease is not registered, the purchaser is not bound to respect the lease. He even has the right to eject the lessee from the apartment.
As to the second point, when there has been no agreement between parties as to who will shoulder the expenses for the repair in the apartment, the lessor or the owner of the house has the obligation for the necessary repairs and to make the apartment suitable for living. This will include repair of roof, doorknobs, pozo negro and many more that is broken by the ordinary wear and tear. “The lessor is obliged…to make on the same during the lease all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there has been a stipulation to the contrary (CC 1654).” In this case, the lessor is obliged to make the necessary repair to preserve the apartment and to keep it suitable for dwelling. The lessee nevertheless may make the necessary repairs on the property and reimburse it later to the lessor.
As to the last point, accepting borders in an apartment is allowed because no ownership or administration is transferred to the border. The lessee does not sublease portions of the apartment to the borders but only agreed to provide them with meals and/or lodging for a price (Mallarte v CA, 178 SCRA 310). The lessee may even sublease the apartment he is renting, in whole or in part, to another provided that there has been no express prohibition in the contract of lease. The lessee does not need to ask permission or consent from the owner of the house, when he wants the property to be subleased by another. The agreement that the law prohibits, without the consent of the lessor, is Assignment of Lease. “The lessee cannot assign the lease without the consent of the lessor, unless there has been a stipulation to the contrary (CC 1649).” An assignment exists when the lessee made an absolute transfer of his leasehold rights in a contract, and he has disassociated himself from the original contract of lease.
Monday, October 27, 2003
Davide Impeachment: The Chief Justice on Trial Who Will Preside the Case
I can still vividly recall the scenario at the senate when the former President Estrada was on trial for impeachment. He was accused of culpable violation of the constitution, graft and corruption, and betrayal of public trust. Chief Justice Davide was presiding over the case with the senate as the juror.
Today, the same scenario is about to transpire only with different players. The Chief Justice Hilario Davide is now facing an impeachment case. He is accused of culpable violation of the constitution, graft and corruption, and betrayal of public trust the same basis that brought former president to impeachment court. The complaint gained the vote of more than 1/3 of all the members of the House of Representative; hence it is forwarded to the senate for trial.
In corollary to Estrada impeachment, Chief Justice Davide was the presiding officer of the then impeachment trial. Now, with CJ Davide set for trial, many were asking who will preside the trial because obviously it cannot be Davide himself; would it be one of the Supreme Court Justices, members of the senate, or President Arroyo herself?!
It would be essential to review the procedure on impeachment as provided by the Constitution. It is clearly stated in Artcle XI, sec. 3 of the constitution that:
“The House of Representatives shall have the exclusive power to initiate cases of impeachment.( on the following grounds: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust…) ”
This is complied with in the Davide Impeachment. Congressmen Gilbert Teodoro and Fuentabella initiated the said complaint in the Lower House. Even a citizen, anyway, can initiate an impeachment case provided that he will secure a resolution of endorsement by any member of the House. The factor that will move the impeachment complaint for trial is the vote of at least one third of all the members of the house. Two days ago, this condition was accomplished and the articles for impeachment and for trial was affirmed.
We are now brought to our main question at bar as to who will preside over the impeachment trial of Chief justice Davide. It cannot be one of the Supreme Court Justices, it is neither the Sandigan Bayan. It cannot be the President herself. The Constitution has bestowed that power to try and decide all cases of impeachment to the senate; to wit: “The senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the senators shall be on oath or affirmation…No person shall be convicted without the concurrence of two thirds of all the Members of the Senate (supra).”
Clearly, it is the senate who has jurisdiction over the case BUT how is it that in the impeachment of former president Estrada Chief Justice Davide Presided over the trial? The impeachment of former president Estrada is a special case, an exception to the rule, “when the President of the Philippines is on trial, The Chief Justice of the Supreme Court shall preside, but shall not vote (supra, sec.6).” It is only when the president is on trial that the chief justice will preside, but in normal cases of impeachment, the senate has sole jurisdiction.
It must be understood that the purpose of impeachment is to remove an officer from office. This is not a criminal procedure, wherein the accused will be imprisoned or pay a fine. The only effect of an impeachment conviction is removal from office and disqualification from any other position in the government. Therefore, the conviction in an impeachment court will not be a bar to filing of a criminal case. If proven guilty, Chief Justice Hilario Davide will be removed and disqualified to hold any office in the Republic of the Philippines. He will be liable and subject to prosecution, trial, and punishment according to law. He will likewise not be entitled to retirement benefits and old age benefits of the Judiciary.
I can still vividly recall the scenario at the senate when the former President Estrada was on trial for impeachment. He was accused of culpable violation of the constitution, graft and corruption, and betrayal of public trust. Chief Justice Davide was presiding over the case with the senate as the juror.
Today, the same scenario is about to transpire only with different players. The Chief Justice Hilario Davide is now facing an impeachment case. He is accused of culpable violation of the constitution, graft and corruption, and betrayal of public trust the same basis that brought former president to impeachment court. The complaint gained the vote of more than 1/3 of all the members of the House of Representative; hence it is forwarded to the senate for trial.
In corollary to Estrada impeachment, Chief Justice Davide was the presiding officer of the then impeachment trial. Now, with CJ Davide set for trial, many were asking who will preside the trial because obviously it cannot be Davide himself; would it be one of the Supreme Court Justices, members of the senate, or President Arroyo herself?!
It would be essential to review the procedure on impeachment as provided by the Constitution. It is clearly stated in Artcle XI, sec. 3 of the constitution that:
“The House of Representatives shall have the exclusive power to initiate cases of impeachment.( on the following grounds: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust…) ”
This is complied with in the Davide Impeachment. Congressmen Gilbert Teodoro and Fuentabella initiated the said complaint in the Lower House. Even a citizen, anyway, can initiate an impeachment case provided that he will secure a resolution of endorsement by any member of the House. The factor that will move the impeachment complaint for trial is the vote of at least one third of all the members of the house. Two days ago, this condition was accomplished and the articles for impeachment and for trial was affirmed.
We are now brought to our main question at bar as to who will preside over the impeachment trial of Chief justice Davide. It cannot be one of the Supreme Court Justices, it is neither the Sandigan Bayan. It cannot be the President herself. The Constitution has bestowed that power to try and decide all cases of impeachment to the senate; to wit: “The senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the senators shall be on oath or affirmation…No person shall be convicted without the concurrence of two thirds of all the Members of the Senate (supra).”
Clearly, it is the senate who has jurisdiction over the case BUT how is it that in the impeachment of former president Estrada Chief Justice Davide Presided over the trial? The impeachment of former president Estrada is a special case, an exception to the rule, “when the President of the Philippines is on trial, The Chief Justice of the Supreme Court shall preside, but shall not vote (supra, sec.6).” It is only when the president is on trial that the chief justice will preside, but in normal cases of impeachment, the senate has sole jurisdiction.
It must be understood that the purpose of impeachment is to remove an officer from office. This is not a criminal procedure, wherein the accused will be imprisoned or pay a fine. The only effect of an impeachment conviction is removal from office and disqualification from any other position in the government. Therefore, the conviction in an impeachment court will not be a bar to filing of a criminal case. If proven guilty, Chief Justice Hilario Davide will be removed and disqualified to hold any office in the Republic of the Philippines. He will be liable and subject to prosecution, trial, and punishment according to law. He will likewise not be entitled to retirement benefits and old age benefits of the Judiciary.
Wednesday, October 15, 2003
CALL CENTER INDUSTRY: LEGAL ISSUES AT FOREFRONT
The call center industry is one of the booming industry in the country. It has been stated in facts that the Philippines ranks as the third call center agent service provider in the world. The e-commerce has been gaining keen popularity in the country.
Call center is an agency, wherein mostly young individuals render services to the foreign state like the US through the internet, telephone, chat, or email. Some sells product, while others serves as a customer service center.
Amidst its popularity, I have found a minority of unlawful issues that needs apt attention. To wit, I realized the following pertinent:
1. Whether or not the Labor Code conforms with the call center working condition?
2. Whether or not the “service retention clause” in the contract of employment valid?
First issue: The Labor code specifies various rules in working condition. Most of the rules are followed by call center agencies like night differential pay to graveyard shift and premium pays, nevertheless some working requirements are still violated.
Employment of women. The Labor Code specifically provides guidelines for the employment of women. Although some of these are practically unreasonable for today’s time, however the law remains to be the law and must be complied with all the time.
The labor code prohibits women to be assigned in the night shift. “In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning the following day… no woman, regardless of age, shall be employed or permitted to work, with or without compensation (Labor Code Art. 130).” This is violated by various call center in the country. Plenty of women are employed in such establishments, although the law specifically provides inhibitions.
Medical and Dental Services. Every business establishment that has an employee of more than fifty must have at least a full-time registered nurse to take care of the first aid or health support of the employees. The clinics are very essential in a workplace. More so, medicines and dental aid must always be available to employees for their protection.
It is clearly stated in the Labor code that “ It shall be the duty of the employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of: the services of a full time nurse when the number of employees exceed fifty but not more than two hundred… or the services of a full-time physician, dentist and a full tiem registered nurse as well as dental clinic, and an infirmary or emergency hospital with one bed capacity for every one hundred employees when the number of employees exceeds three hundred… (Art. 157).” The aforementioned provision is usually neglected by employers. They infer that giving medical benefits like insurance or hospital discounts is enough to compensate for the law requirement, untenable.
(end of first part)
The call center industry is one of the booming industry in the country. It has been stated in facts that the Philippines ranks as the third call center agent service provider in the world. The e-commerce has been gaining keen popularity in the country.
Call center is an agency, wherein mostly young individuals render services to the foreign state like the US through the internet, telephone, chat, or email. Some sells product, while others serves as a customer service center.
Amidst its popularity, I have found a minority of unlawful issues that needs apt attention. To wit, I realized the following pertinent:
1. Whether or not the Labor Code conforms with the call center working condition?
2. Whether or not the “service retention clause” in the contract of employment valid?
First issue: The Labor code specifies various rules in working condition. Most of the rules are followed by call center agencies like night differential pay to graveyard shift and premium pays, nevertheless some working requirements are still violated.
Employment of women. The Labor Code specifically provides guidelines for the employment of women. Although some of these are practically unreasonable for today’s time, however the law remains to be the law and must be complied with all the time.
The labor code prohibits women to be assigned in the night shift. “In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning the following day… no woman, regardless of age, shall be employed or permitted to work, with or without compensation (Labor Code Art. 130).” This is violated by various call center in the country. Plenty of women are employed in such establishments, although the law specifically provides inhibitions.
Medical and Dental Services. Every business establishment that has an employee of more than fifty must have at least a full-time registered nurse to take care of the first aid or health support of the employees. The clinics are very essential in a workplace. More so, medicines and dental aid must always be available to employees for their protection.
It is clearly stated in the Labor code that “ It shall be the duty of the employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of: the services of a full time nurse when the number of employees exceed fifty but not more than two hundred… or the services of a full-time physician, dentist and a full tiem registered nurse as well as dental clinic, and an infirmary or emergency hospital with one bed capacity for every one hundred employees when the number of employees exceeds three hundred… (Art. 157).” The aforementioned provision is usually neglected by employers. They infer that giving medical benefits like insurance or hospital discounts is enough to compensate for the law requirement, untenable.
(end of first part)
Monday, October 13, 2003
SENATOR LACSON CASE: REVIVING THE KURATONG BALELENG ROB OUT
Many people were surprised when the Supreme Court rendered its judgment reopening the Kuratong Baleleng case. The said case was already dismissed by the Court of Appeals two years ago at the instance of the accused. Senator Lacson is one of the principal suspects of the case. In line with this, speculation is widespread that the senator would spend Christmas in jail.
It is a basic rule in court of justice that dismissed cases can no longer be opened because such prior judgment becomes a bar to subsequent prosecution on the same charged in the former complaint. This is the doctrine of double jeopardy.
My father, last night, asked my opinion about the controversial Lacson case. He told me that the Supreme Court has been unfair with senator Lacson, with the doctrine of double jeopardy as his basis.
The standing that the Supreme Court has committed a grave abuse of discretion or unfair judgment could be tenable BUT I DISAGREE having the double jeopardy as the legal basis. The Rules of Court, specifically provides double jeopardy as:
When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information…after the accused had pleaded to the charge, the conviction pr acquittal or the dismissal of the case shall be a bar to another prosecution for the offense charged…(RULE 117; sec. 7, emphasis added)
The present case clearly is not a double jeopardy issue. Although the case has been dismissed, It is not dismissed on the merits. It shows that the termination of the case is with the express consent of the accused. The accused, including senator Lacson, filed a Motion to Dismiss the case, when it was still in the Court of Appeals. The motion was granted, whereby the case was provisionally dismissed. And as a general rule, provisional dismissal is not a dismissal after all because the case can still be revived through a motion provided that it has not become permanent.
It is evident that the case was provisionally dismissed by the Court of Appeals. The two years period for revival has already lapsed, thereby making the dismissal a de facto permanent dismissal. It is only permanent dismissal-in-fact because there has been no issuance of the order permanently dismissing the case, to wit;
The provisional dismissal of offenses punishable by… imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. (Rule 117, sec. 8)
In this sense, the kuratong baleleng rob-out case has a two year period to revive prosecution. After the lapse of two years, the provisional dismissal shall be permanent upon issuance of an order from a competent authority.
Two years has already lapse but no revival of the case occurred, neither is there an issuance of an order making the provisional dismissal permanent. Whether or not the kuratong baleleng case be revived?
The Supreme Court answered positively taking the superiority of search for justice as a defense. When the Supreme Court speaks, everybody bows and listen. Whatever the “search for justice” means, only the justices can answer.
It is a basic rule in court of justice that dismissed cases can no longer be opened because such prior judgment becomes a bar to subsequent prosecution on the same charged in the former complaint. This is the doctrine of double jeopardy.
My father, last night, asked my opinion about the controversial Lacson case. He told me that the Supreme Court has been unfair with senator Lacson, with the doctrine of double jeopardy as his basis.
The standing that the Supreme Court has committed a grave abuse of discretion or unfair judgment could be tenable BUT I DISAGREE having the double jeopardy as the legal basis. The Rules of Court, specifically provides double jeopardy as:
When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information…after the accused had pleaded to the charge, the conviction pr acquittal or the dismissal of the case shall be a bar to another prosecution for the offense charged…(RULE 117; sec. 7, emphasis added)
The present case clearly is not a double jeopardy issue. Although the case has been dismissed, It is not dismissed on the merits. It shows that the termination of the case is with the express consent of the accused. The accused, including senator Lacson, filed a Motion to Dismiss the case, when it was still in the Court of Appeals. The motion was granted, whereby the case was provisionally dismissed. And as a general rule, provisional dismissal is not a dismissal after all because the case can still be revived through a motion provided that it has not become permanent.
It is evident that the case was provisionally dismissed by the Court of Appeals. The two years period for revival has already lapsed, thereby making the dismissal a de facto permanent dismissal. It is only permanent dismissal-in-fact because there has been no issuance of the order permanently dismissing the case, to wit;
The provisional dismissal of offenses punishable by… imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. (Rule 117, sec. 8)
In this sense, the kuratong baleleng rob-out case has a two year period to revive prosecution. After the lapse of two years, the provisional dismissal shall be permanent upon issuance of an order from a competent authority.
Two years has already lapse but no revival of the case occurred, neither is there an issuance of an order making the provisional dismissal permanent. Whether or not the kuratong baleleng case be revived?
The Supreme Court answered positively taking the superiority of search for justice as a defense. When the Supreme Court speaks, everybody bows and listen. Whatever the “search for justice” means, only the justices can answer.
Greeting!
Welcome to my blogsite, dear readers. For any legal matter that you wish to inquire, just post it and I will reply and give sound legal advice as soon as I can for FREE. All that I want to do is to return favor to all the good people in my life.
Please feel free to ask. Thank you
Claude G. Requino II
Welcome to my blogsite, dear readers. For any legal matter that you wish to inquire, just post it and I will reply and give sound legal advice as soon as I can for FREE. All that I want to do is to return favor to all the good people in my life.
Please feel free to ask. Thank you
Claude G. Requino II
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