State Powers: Eminent Domain

Posted by Admin | Posted in Philippine Constitution, Special Civil Actions | Posted on 16-07-2010

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The power of eminent domain involves the power and right of the state (through its government) to appropriate or take private property to be used for a public purpose. This process of taking is popularly known as expropriation. A compulsory sale to the government, it places a limitation on one’s property rights. That is why, before the government can validly take any private property, it must comply with strict legal requirements.  This is in accord with the Constitution which says:  “no person shall be deprived of property without due process of law”.pinoylegal

The following are the basic limitations on the exercise of this power:

1) It must be for a public purpose;

2) There must be a necessity for its exercise, which should be genuine and public in character; and

3) The owner of the private property must be paid just compensation.

But for local government units (province, city, municipality or barangay), the requirements are more specific.

1) There must be an ordinance enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to pursue expropriation proceedings over a particular private property. pinoylegal

2) It is exercised for public purpose, use or welfare, or for the benefit of the poor and the landless.

3) There is payment of just compensation.

4) A valid and definite offer has been previously made to the owner but it was rejected.

5) It must be in accordance with RA 7279 (Urban Development and Housing Act of 1992), specifically:

a) Section 9: In the order of priority in the acquisition of land, privately-owned land ranks last.

b) Section 10: As to the modes of land acquisition, expropriation should be used only when other modes (joint venture agreement or negotiated purchase) have been exhausted.pinoylegal

Is business a property that can be stolen?

Posted by Admin | Posted in Felonies (Revised Penal Code), Property, in general | Posted on 11-01-2010

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This was the question presented in the case of Laurel vs. Abrogar (2006).  I met this case when I was studying Property in my second year in law school. I paid interest, not just because the respondent judge’s surname sounds “family” (as a friend would joke about it), but because in USC, there is no excuse if you do not read ALL the cases. And as my history of unfortunate events would tell me, I am usually called to recite on the case which for one reason or another I have not read. So I always have to prepare. I would rather miss class when unprepared than humiliate myself in front of my teacher.

I have read this case in 2006.  I decided to read it (full text) again in 2009, during my bar review, thinking it might pop out in the exam. When I searched it on the net (my lex libris cd being inutile), I got excited by a 2009 en banc resolution (January 13, 2009) of the same case by the Supreme Court. It was outside of the coverage, but nothing to lose, as I usually say. It did not come out in the exams but it was worth reading. It was one of many reversals the Court had made over the past years. Now I thought of sharing it here. For future reference, in case my memory fails me.

Laurel was charged with engaging in International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined. These calls, in effect, reached various parts of the country and even Japan without passing through the information gateway of PLDT. According to PLDT, it lost billions of pesos in profit because of this unauthorized activities.

In the original case (G.R. No. 155076, February 27, 2006), the issue was whether or not PLDT’s business may be the subject of theft. In answering this, it is necessary to clarify some things first. What constitutes the “business” of PLDT? Is this business considered “personal property that may be stolen by another? Read the rest of this entry »