Rules on how an LGU must expropriate a private property

 After reading this case, you must be able to grasp the following principles:

1. An LGU possesses the power of eminent domain pursuant to the Local Government Code.

2. It can exercise it through an ORDINANCE not through a Resolution. An ordinance is different from a resolution. 

3. it must first negotiate with the owner. If negotiation fails then it must file the expropriation complaint . To take possession of the property it must deposit 15% of the fair market value of the property based on the current tax declaration of the property. Finally, it is the court that must determine the just compensation.

FACTS: The petitioners owned a parcel of land situated in Barangay Mauway, Mandaluyong City. Half of their land they used as their residence, and the rest they rented out to nine other families. Allegedly, the land was their only property and only source of income. On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted Resolution No. 552, Series of 1997, to authorize then City Mayor Benjamin S. Abalos, Sr. to take the necessary legal steps for the expropriation of the land of the petitioners for the purpose of developing it for low cost housing for the less privileged but deserving city inhabitants. The petitioners became alarmed, and filed a petition for certiorari and prohibition, praying for the annulment of Resolution No. 552 due to its being unconstitutional, confiscatory, improper, and without force and effect. The City countered that Resolution No. 552 was a mere authorization given to the City Mayor to initiate the legal steps towards expropriation, which included making a definite offer to purchase the property of the petitioners; hence, the suit of the petitioners was Premature.

 

ISSUE: Whether or not the validity of Resolution No. 552 can be assailed before its Implementation?

 

RULING: No. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. In view of the absence of the proper expropriation ordinance authorizing and providing for the expropriation, the petition for certiorari filed in the RTC was dismissible for lack of cause of action. As of then, it was premature for the petitioners to mount any judicial challenge, for the power of eminent domain could be exercised by the City only through the filing of a verified complaint in the proper court. Before the City as the expropriating authority filed such verified complaint, no expropriation proceeding could be said to exist. Until then, the petitioners as the owners could not also be deprived of their property under the power of eminent domain.Republic Act No. 7160 (The Local Government Code) requires cities to pass an ordinance, not adopt a resolution, for the purpose of initiating an expropriation proceeding.

 

Section 19. Eminent Domain. –A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market.

-digest submitted by Marie Beth Revilla.