Republic of the Philippines

Office of the President

HOUSING AND LAND USE REGULATORY BOARD
Expanded NCR Field Office
Kalayaan Avenue, Quezon City

ROLANDO DOMINGO et al.,

Complainants,

- versus - HLURB Case No:

NCRHOA 102114-2135

RAUL EVANGELISTA et al.,

Respondents,

x-------------------------x

POSITION PAPER
COMPLAINANTS, by themselves, to this Honorable Commission, most
respectfully submits this Position Paper and in support hereof states:

THE PARTIES

1. The complainants ROLDANDO DOMINGO, BAYANI JIMENEZ,

RODOLFO MANIACUP, ANDRES ESCUETA, ZOE ABIOG, LEOPOLDO
DIEGO, JAIME CHONGCO, and MYRNALINA OCHINANG, are all of legal
age, Filipinos, and are members in good standing of Broadway Pines
Homeowners’ Association, Inc. (BPHAI). They may be served with notices and
processes of this Honorable Commission at Block 22 Lot 3, Roosevelt Drive,
Broadway Pines Executive Village, Barangay Mayamot, Antipolo City;

2. The authority of the above-named complainants to represent other

bonafide members of BPHAI is evidenced by a Special Power of Attorney 1
(SPA); and

3. The respondents RAUL EVANGELISTA (President), RICKY

CINCO (Vice-President), JERRY SUAPENGCO (Secretary), LUISITA
LIMBAGO (Treasurer), EDUARDO ABAD (Water Committee Chairman),
ROLAND GARCIA (COMELEC-BPHAI Chairman), MONET ESPIRITU-
LOPEZ, LEONCIA GREGORIO, RENATO CALDERON, SUSAN FLORES,
DENNIS VALERIO, CELESTINO PANGANIBAN, MENARD MANIPOL,
LARRY MENDOZA, NARCISO PANGILINAN, AND ROBERTO
BOLANOS (Directors), are all of legal age and Filipinos, with office address at
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Annex A
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the BPHAI Office located at Broadway Pines Executive Village, Barangay
Mayamot, Antipolo City, where they may be served with summons and other
processes of this Honorable Commission.

STATEMENT OF FACTS

4. The complainants filed the Complaint against herein respondents

for the latter’s patent violations of Republic Act 9904 (RA 9904), otherwise
known as the Magna Carta for Homeowners and Homeowners’ Association and
the BPHAI By-Laws.

ISSUES

5. Whether the respondents violated RA 9904;

6. Whether the respondents violated the BPHAI By-Lawss; and

7. Whether the respondents committed gross negligence in the

management of the BPHAI.

DISCUSSION

THE RESPONDENTS
VIOLATED RA 9904

NON-FILING OF THE FINANCIAL REPORTS

WITH THE HLURB

8. Section 17, RA 9904 enumerates the duties of the Treasurer and

President or Chairman of the Board of Directors 2 of the Association in relation
to financial reports and other records, to wit:

“Section 17. Financial and Other Records. - The homeowners’

association is enjoined to observe the following, with regard to its funds,
financial and other records:

(a) The association or its managing agent shall keep financial and other
records sufficiently detailed to enable the association to fully declare to
each member the true statement of its financial status. All financial and
other records of the association including, but not limited to, checks,
bank records and invoices, in whatever form these are kept, are the
property of the association. Each association’s managing agent shall
turn over all original books and records to the association immediately
upon termination of the management relationship with the association,
or upon such other demand as is made by the board. An association’s
managing agent is entitled to keep association records. All records
which the managing agent has turned over to the association shall be

2
Reportorial Requirements., hlurb.gov.ph/homeowners-association/., accessed last 22 December 2014.
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 made reasonably available for the examination and copying by the
managing agent;

(b) All records involving the affairs of the association shall be available
for examination by all owners, holders of mortgages on the lots, and
their respective authorized agents upon reasonable advanced notice,
during normal working hours at the office of the association: Provided,
That holders of mortgages on lots may have access to the information
about the property held in mortgage with the written consent of the
registered owner;

(c) A financial statement of the association shall be prepared annually by

an auditor, the treasurer and/or an independent certified public
accountant within ninety (90) days from the end of the accounting
period to be posted in the association office, bulletin boards, or other
conspicuous places within the subdivision/village, and to be submitted
to the HLURB; and

(d) The funds of the association shall be kept in accounts in the name of
the association and shall not be joined with the funds of any other
association, or any person responsible for the custody of such funds”

9. In relation to the above-cited provision of RA 9904, Section 2,

Article IX of the BPHAI By-Laws provides for the fiscal period for the
preparation of the financial report. The cited provision reads:

“The fiscal year of the Association shall begin on the first day of July
and shall end on the 30th day of June of the following year xxx.”

10. Upon inquiry from the HLURB on October 2014, only the cash
flow for 2011 was filed. No financial statement was filed by the Treasurer and
President or the Chairman of the Board from fiscal year 2011 until the present
year in blatant disregard of their duties as officers of the Association. Belated
compliance by the respondents with the obligation to file the financial
statements with the HLURB will not cure their prior violation.

11. This is a wanton violation by the respondents of their sworn duty

and obligation to fully declare to each member the true statement of its financial
status. Copies of the BPHAI By-Laws 3 and the cash flow for the year 2011 4 are
hereto made an integral part of this Position Paper.

HIRING THE SERVICE OF A PRIVATE INDEPENDENT CONTRACTOR

FOR THE LAYOUT AND CONSTRUCTION OF PIPING LINES FOR
MANILA WATER SERVICES WITHOUT THE NECESSARY
CONSULTATION OR APPROVAL OF THE MEMBERSHIP
12. Section 22 (f) in relation to Section 10 (e) of RA 9904 authorizes
the Association to hire, discharge or contract managing agents and other
employees, agents and independent contractors to ensure the full functioning
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and operation of the association provided that the majority of the members
agree thereto. The said provisions state:

“Sec 22 (f) [Prohibited Acts] - To exercise rights and powers as

stated in Section 10 in violation of the required consultation and
approval of the required number of homeowners or members.”

“Sec 10 (e) [Rights and Powers of the Association] – Hire,

discharge or contract managing agents and other employees, agents and
independent contractors to ensure the full functioning and operation of
the association.”

13. The President, the Directors, and the Water Committee Chairman,
in connivance with each other, in a purported “contract” denominated as
Quotation for the Proposed Pipe laying and Home Service Connection5,
acquired the services Engineer Jose A Rementina for the laying of the pipelines
within the subdivision.

14. There was neither consultation nor approval from the majority of
the members before the alleged “contract” was entered into in violation of Sec
22 (f) of RA 9904 constituting grave abuse of authority of the President, the
Directors, and the Water Committee Chairman.

15. The justification proffered by the President, the Directors, and the
Water Committee Chairman that the services of Engineer Jose A Rementina is
the least expensive of all the prospective service contractors is unavailing. Even
if it is true that the services of Engineer Jose A Rementina is the least
expensive, consultation and approval of the membership is required and cannot
be ignored.

16. It cannot be overemphasized that even if the Respondents no longer

enjoy the pleasure of the majority of the membership, the respondents still
pursued the “contract” without the requisite consultation and approval of the
membership.

THE RESPONDENTS
VIOLATED THE BPHAI
BY-LAWSS

COLLECTION OF ASSESSMENT FEES WITHOUT THE APPROVAL OF

THE MAJORITY OF THE MEMBERS OF THE ASSOCIATION

17. Pursuant to Section 12 (b) of RA 9904, the Board of Directors

[may]:
“Section 12. xxx collect the fees, dues and assessments that may be
provided for in the By[-]laws and approved by a majority of the
members.”

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Annex D
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 18. The President and Directors, in conspiracy with each another,
made special assessments and collected from the members of the Association
for the operation of Closed-Circuit Televisions (CCTVs), Road User’s fees, and
other fees for the alleged beautification of the subdivision entrance gate. The
collection is evidenced by herein attached copies of receipts of payment6.

19. Upon inquiry with the HLURB on October 2014, there were no
documentations, minutes of meeting, or resolutions showing that the majority of
the members approved the collection of aforesaid fees in complete disregard of
the provisions of the By-Laws.

20. Considering that the President and most of the Directors have been
officers of BPHAI for more than one term, it is incumbent for them to know the
provisions of the BPHAI By-Laws. Their failure to obey the provisions of the
By-Laws is reprehensible and constitutes gross ignorance of the BPHAI By-
Laws.

SIGNING OF THE PRESIDENT OF THE QUOTATION WITHOUT THE

REQUISITE BOARD RESOLUTION AUTHORIZING
THE PRESIDENT TO ENTER INTO SUCH CONTRACT

21. The act of the President in signing the aforementioned Quotation

for the Proposed Pipe laying and Home Service Connection is an act beyond the
scope of his authority. The Directors should have first executed a resolution in
order to authorize the President to sign or enter into agreements which will bind
the Association. Without the necessary Board resolution, the President cannot
bind the Association and any obligation resulting from any deed, mortgage,
bond, contract, or any instrument shall be the personal obligation of the
President. Section 3, Article IV of the BPHAI By-laws provides in part:

“Section 3: President. xxx The [P]resident shall also sign and execute in
the name of the association all authorized deeds, mortgages, bonds,
contracts and other instruments to be entered into by the Board in the
name of the association xxx.”

22. Considering that the act of the President in signing the Quotation
for the Proposed Pipe laying and Home Service Connection is ultra vires, the
“contract” is an unenforceable contract. Under Article 1403 (1) of the New
Civil Code, [contracts] entered into in the name of another person by one who
has been given no authority or legal representation, or who as acted beyond his
powers, are unenforceable.

23. The President, Directors, and the Water Committee Chairman

should have been more circumspect in their actions considering that the value
involved in the supposed “contract” is Php 10 Million.

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 AMENDMENT OF THE BPHAI BY-LAWSS WITHOUT PRIOR
CONSULTATION AND APPROVAL OF THE MEMBERSHIP

23. Sometime in 2011, the Respondent-Directors and the COMELEC

Chairman amended the BPHAI By-laws by providing that only 30% of the
entire membership entitled to vote is required in order to pass further
amendments to the By-laws. Said amendment was without the prior
consultation and approval of the BPHAI members. No special meeting was
called for the amendment of the By-laws therefore constituting grave abuse of
authority of the respondents. The amendment came into surface only in the
general membership meeting conducted last 28 September 2014.

24. Be that as it may, the amendment made by the Respondent-

Directors and the COMELEC Chairman has not attained finality as a timely
Opposition7 therefor has been filed before the HLURB. The issuance of the
Certificate of Amendment was suspended through a letter 8 sent by HLURB to
both parties.

THE RESPONDENTS ARE

GUILTY OF GROSS
NEGLIGENCE IN THE
MANAGEMENT OF THE
BPHAI

FAILURE TO MAINTAIN ESSENTIAL SERVICES IN THE SUBDIVISION

AT A REASONABLE PRICE

25. It is the duty of the officers of the association to provide essential

services in the subdivision at a reasonable price. The BPHAI By-laws provide:

“Section 13 (e): [Duties and Responsibilities] – The Board shall be

responsible for maintaining all facilities [sic] provide sanitation,
security, and other essential services for the subdivision.”

26. RA 9904 states a similar duty of the officers, to wit:

“Section 10 (g): [Rights and Powers of the Association] - ensure the

availability of quality water services at a reasonable price xxx.”

27. Sometime in 2013, the President, Directors, and the Water

Committee Chairman contracted the services of Manila Water. In order to
connect to the services of Manila Water, the President, Directors, and the Water
Committee Chairman hired the services of a private independent contractor for
the laying of pipelines within the subdivision. The initial fee for each household
was Php 33,000.00 which was increased to P 43,000.00 and further increased to
Php 50,000.00 for an alleged “business scheme”. However, the said “business

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Annex G
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scheme” is not reflected in any resolution or any documentation of the
Respondents.

28. After the payment of the initial fee, several “connection fees”
ranging from P 1, 500.00 to P 3, 000.00 are still collected before actual
connection to the water service. This business scheme is not in consonance with
the right of the Association members to quality water services at a reasonable
price.

29. Copies of some of the receipts9 issued by the Respondents for the
aforementioned exorbitant charges are hereto attached and made an integral part
of this Position Paper.

COMPULSION IN AVAILING OF THE

SERVICES OF MANILA WATER

30. The water fiasco in the subdivision is further compounded by the

issuances of National Water Regulatory Board (NWRB) of two void orders. The
first order10 directed the sealing and closure of individual deep wells.

31. A Motion for Reconsideration was filed, which however was

denied by NWRB in a second order11 while ordering anew the closure and
sealing of the deep wells.

32. The respondents tried to execute the second order of the NWRB by
sending letters12 throughout the Association underscoring the date when the
deep wells shall be removed by the elements of the NWRB thus leaving the
members no other choice but to avail the services of Manila Water at an
exorbitant price.

33. Further, through the initiative of the President himself, the water
pump (poso) which is situated along Roosevelt Drive was sealed and closed
thereby effectively depriving the homeowners who do not have deep wells of
water supply. Photos13 of the sealed and closed water pump is likewise attached
herewith and made an integral part of this Position Paper.

34. It is depressing to note that as of this time, there are still many
homeowners who cannot avail the water services of Manila Water considering
the exorbitant fees asked by the officers of the Association. The act of the
President, the Directors, and the Water Committee Chairman in inviting the
NWRB and discontinuing the operation of the water pump in order to forcibly
take away the only water source of the Association members is inconsistent
with the right of the Association to quality water services.

9
Annex H
10
Annex I
11
Annex J
12
Annex K
13
Annex L to L-2
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 35. The validity of said NWRB orders, however, had been assailed in a
Petition for Review with Application for Temporary Restraining Order pending
before the Special Ninth Division of the Court of Appeals and is docketed as
CA-GR SP No 13562014.

NONCOMPLIANCE WITH THE COMPROMISE

AGREEMENT/AMICABLE SETTLEMENT AGREED
IN THE HLURB CONCILIATION

36. A conciliation proceeding between herein parties was conducted in

the HLURB last 15 July 2014. A copy of the minutes 15 of the conciliation
conference is attached herewith and made an integral part of this Position Paper.

37. At the said conciliation, it was agreed that the respondents shall
discontinue the utility of a mother meter for the water connection and instead
use individual meters for each of the households in the subdivision. However,
after the said conciliation and persisting until now, there is yet an action from
the respondents to pursue the agreement reached during the conciliation. Their
stubborn refusal to comply shows their clear disrespect not only to the
agreement but also to the institution of the HLURB.

CONDUCT OF AN INVALID REFERENDUM

38. The President, the Directors, and the COMELEC Chairman in an

attempt to continue their tyrannical ways, made further amendments in the
BPHAI By-Laws through their so-called “referendum”. In the said
“referendum”, the Respondents declared that a certain number of the BPHAI
membership voted that instead of voting the President at large at the time of
elections, only directors shall be voted upon and the directors thus elected shall
choose among themselves the President. Also in the said referendum, it was
allegedly approved that a fidelity bond should be given by the President before
being chosen by the elected directors.

39. Their so-called “referendum” was illegally conducted. First, it is

elementary that in a referendum, only a single subject for amendment should be
presented to the membership for approval or rejection 16. In other words, there
should only be one referendum for a single amendment. The respondents
presented two issues for the consideration of membership in a single
referendum17. The purpose of the single-subject rule is to allow the membership
to focus on a single subject when deliberating whether or not to vote for the
amendments18.

40. Second, coming from the Respondent-President himself during the

September 28th General Membership Meeting, the counting of the votes cast for
14
Annex M
15
Annex N
16
Atty Raul L Lambino vs COMELEC (2006)., GR No 174153
17
Annex O
18
Francisco S Tatad v. Secretary of Department of Energy (1997)., GR 124360
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the referendum was held five days after the termination of the voting. After the
voting, the chairman of BPHAI-COMELEC took home the ballot box and hid it
until five days thereafter. This unlikely procedure violated the sanctity of the
referendum and casted a reasonable doubt on the results of the referendum.

41. Finally, to aggravate the numerous violations of the respondents

against the BPHAI By-Laws, the Respondent-President declared in the same
General Membership Meeting held on the 28th of September, that the result of
the referendum was not physically and actually disseminated by the respondents
as enjoined by the By-Laws. The result was posted online through a Facebook
account, making a mockery out of the proceedings of the Association. Nowhere
in the By-Laws allows the posting of voting results through a social media
account such as Facebook.

42. The afore-mentioned deplorable acts of the Respondents, taken

singly or as a whole, manifested their gross negligence and/or illegal acts in the
performance of their sworn duties in violation of the rights of the members of
the Association and violation of the law, for which they should be accordingly
meted with applicable penalties and sanctions.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

sanctions be meted to each of the respondents for their illegal acts, willful
disregard, gross negligence in the management of BPHAI, and violations of RA
9904 and BPHAI By-laws pursuant to Section 23 of RA 9904, which provides
in part:

“Section 23. Penalties and Sanctions – Any person who, intentionally

or by gross negligence, violates any provision of this Act, fails to
perform his/her functions under this Act and/or violates the rights of
the members, shall be punished with a fine of not less than Five
Thousand pesos (Php 5, 000.00) but not more than Fifty thousand
pesos (Php 50, 000.00) and permanent disqualification from being
elected or appointed as member of the Board, officer or employee of
the Association, without prejudice to being charged before a regular
court for violations of the provisions of the Revised Penal Code, Civil
Code, and other pertinent laws.

xxx”.

It is likewise prayed that the questioned amendments of the By-laws be

declared null and void for having been made in contravention with the
provisions of the same By-Laws.

It is further prayed that reasonable damages be awarded in favor of the

Association for the deplorable acts of the Respondents.

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 Other reliefs just and equitable under the circumstances are likewise
prayed for.

Antipolo City for Quezon City, 22 December 2014.

By themselves and as representatives of the members of the Broadway

Pines Homeowners Association:

Rolando Domingo Bayani Jimenez

Complainant Complainant

Rodolfo Maniacup Andres Escueta

Complainant Complainant

Leopoldo Diego Jaime Chongco

Complainant Complainant

Zoe Abiog Myrnalina Ochinang

Complainant Complainant

Copy Furnished:

BPHAI Office
Broadway Pines Executive Village,
Sumulong Highway, Brgy Mayamot,
Antipolo City

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