Right to regulate passage in subdivisions

A homeowners’ association may regulate passage into a subdivision for the safety and security of its residents, even if its roads have already been donated to the local government. It has the right to set goals for the promotion of safety and security, peace, comfort, and the general welfare of its residents.”

So ruled the Supreme Court in its very first sentence in Kwong v Diamond Homeowners (June 10, 2019), penned by Justice Marvic M. V. F. Leonen.

Specifically, the Court upheld the “No Sticker, No ID, No Entry” policy of gated villages. Under this scheme, visitors on vehicles seeking entry must leave with the subdivision guards their identification cards (IDs), which they may reclaim upon leaving. Residents may obtain stickers for their vehicles, which may then enter and exit freely without need of IDs.

Note that Presidential Decree (PD) 957, as amended by PD 1216, requires that “[u]pon their completion…, 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…”

While these PDs were silent on the homeowners’ rights on these donated roads, a later law approved in 2010 (Republic Act 9904) gave the associations the right to “[r]egulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, safety and traffic order: (p)rovided, that (1) public consultations are held; (2) existing laws and regulations are met; (3) the authority of the concerned government agencies or units are obtained; and (4) the appropriate and necessary memoranda of agreement are executed among concerned parties.”

This law does not distinguish whether the roads have been donated or not. Thus, the Court ruled that the homeowners have the right to regulate the use of the roads, alleys, sidewalks and playgrounds even without owning them.

Despite the seeming mandatory provisions of the PDs compelling the donation of the subdivision roads, the Court, in Republic v. Llamas (Jan. 25, 2017) also penned by J Leonen, said that a “positive act” like a deed of donation must first be made by the owner-developer before the government can acquire dominion over them.

“To be considered a donation, an act of conveyance must necessarily proceed freely from the donor’s own, unrestrained volition. A donation cannot be forced: it cannot arise from compulsion, be borne by a requirement, or otherwise be impelled by a mandate imposed upon the donor by forces that are external to him or her.” Thus, “The local government should first acquire them by donation, purchase, or expropriation, if they are to be utilized as public roads.”

Republic v. Ortigas (March 3, 2014, also written by J Leonen) succinctly captures the essence of free conveyancing: “An owner may not be forced to donate his or her property even if it has been delineated as road lots because that would partake of an illegal taking. He or she may even choose to retain said properties.” In such situation, the villagers’ right to regulate passage is even more compelling.

True, the Local Government Code recognizes the power of cities and municipalities to own, improve and pave donated roads. Nonetheless, the Court, in the Kwong case, held that “homeowners’ associations are not entirely powerless in protecting (their) interests.” While the “ownership of public spaces is with the local government, enjoyment, possession, and control are with the residents and homeowners.”

Significantly, the Court observed that “[i]t is common knowledge that when homeowners purchase their properties from subdivisions, they pay a more valuable consideration in exchange for better facilities, safer security, and a higher degree of peace, order and privacy.”

Moreover, some may have acquired their homes “in contemplation of their right to organize and to take measures to protect (their) interests. It would be an injustice if these were not taken into consideration in determining the validity of the Policy.”

Given these emphatic rulings, the government may not forcefully open gated subdivisions to public traffic without giving due respect to the villagers’ right to regulate passage therein.

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