CARIDAY INVESTMENT CORPORATION, PETITIONER, VS. COURT OF APPEALS & FORBES PARK ASSOCIATION, INC., RESPONDENTS.

DISSENTING OPINION

GUTIERREZ, JR., J.:

I agree with the dissenting opinion penned by Justice Medialdea.  The
disputed contractual commitment having been given too restrictive a meaning by the dominant party, the
Court should step in with a more liberal and reasonable interpretation.

I have no objection to the proposition that ownership
restrictions which are intended to avoid overcrowding, deterioration of roads,
unsanitary conditions, ugly surroundings, and lawless behaviour
in residential areas may be enforced through the Court’s coercive powers.  There is absolutely no showing, however, that
two families living in one big residence in Forbes
Park would lead to any of the above
unpleasant consequences.

I believe that the zeal with which the private respondent
enforces the disputed single family restriction is intended to insure that Forbes
Park real estate values remain higher
— much, much higher– than the values in any other residential area in the
whole country.  In other words, what the
Court is protecting are not sanitation, peace and order, comfort, or aesthetic
surroundings which would not in the least bit be affected by two families
sharing one big house in Forbes Park, but inflated land values and an elitist
life style.  Under the disputed
provision, one family could hire a battalion of servants, drivers, yayas, gardeners, butlers, footmen, grooms, cooks,
laundresses and other lackeys without violating the single family rule.  It is not overcrowding which is sought to be
avoided but something else.

Metro Manila has run
out of available residential land for its huge and still exploding
population.  Land use has to be rationalized.  Without sacrificing their
comfort and security, the rich have to yield a little.  I consider it a waste of scarce resources if
property worth several millions of pesos is limited in its use to one solitary
family, no matter how small, when it could comfortably house two or more
families in the kind of comfort and luxury which is undreamed of even to upper
middle income people.  The very rich have
the right to enforce their exclusive lifestyles through voluntary compliance
but when the Courts step in to validate and enforce an unreasonable
restriction, I am constrained to dissent.

I am not suggesting that affluent suburban enclaves should be
allowed to deteriorate into monotonous box­like government housing projects or,
worse, into slums or squatter colonies.  My only concern is with this Court’s
validating restrictions whose obvious purpose is to
jack up property values to heights which are incongruous against the grinding
poverty and hand-to-mouth subsistence of the overwhelming masses of our people.

The provisions of the Constitution on Social Justice and Human
Rights (Article XIII, Constitution) emphasize the social function of land.  Congress must give the “highest”
priority to measures which enhance the right of all the people to human dignity
and reduce social, economic, and political inequalities through the equitable
diffusion of wealth and political power (id, Section 1).  The State is mandated to undertake, in cooperation
with the private sector, a continuing housing program and an urban land reform
program which seek to make available at affordable cost decent housing and
basic services to underprivileged and homeless citizens, (id. Section 9).  I am
afraid that the Court’s decision in this Forbes Park case
does not in any way help achieve these constitutional objectives.

The present Constitution expresses the impatience of the framers
with what they perceived as an unfortunate lack of attention to the most pressing
problem faced by the country.  But even
under the 1935 Constitution, the Court was less than enthusiastic when asked to
enforce contractual commitments based on a laissez faire theory of government.  In Alalayan v.
National Power Corporation (24 SCRA 172, 181-182 [1968])
the Court ruled:

“It is to be admitted of course that property rights find
shelter in specific constitutional
provisions, one of which is the due process clause.  It is equally certain that our fundamental
law framed at a time of ‘surging unrest and dissatisfaction’ (The phrase is
Justice Laurel’s, appearing in his concurring opinion in Ang
Tibay v. Court, cited with approval in Antamok Goldfields Mining Co. v. Court, 70 Phil. 340
[1940]), when there was the fear expressed in many quarters that a
constitutional democracy, in view of its commitment to the claims of property,
would not be able to cope effectively with the problems of poverty and misery
that unfortunately afflict so many of our people, is not susceptible to the indictment that the government therein
established is impotent to take the necessary remedial measures.  The framers saw to that.  The welfare state concept is not alien to the
philosophy of our Constitution.  (Cf.
‘Private property does not constitute for anyone an absolute and unconditioned
right.  x x x All men are equal in their right to a decent life.   x x x It is not a system of justice where one man is very
wealthy and another very poor.  Where
such a situation exists on a national scale, it becomes a matter of social
justice.  x x x [In the Philippines, while] a few have far more than they need, the vast majority lack
even the barest essentials of life.’ 
Pastoral Letter of the Catholic Hierarchy, May 1, 1968) It is implicit
in quite a few of its provisions.  It
suffices to mention two.

“There is the clause on the promotion of social justice to
ensure the well-being and economic security of all the people, (Art. II, Sec. 5, Constitution of the Philippines) as well as the pledge of protection
to labor with the specific authority to regulate the relations between
landowners and tenants and between labor and capital.  (Art. XIV, Sec. 6, id.)
This particularized reference to the rights of working men whether in industry
and agriculture certainly cannot preclude attention to and concern for the
rights of consumers, who are the objects of solicitude in the legislation now complained of.  The police power as an attribute to promote
the common weal would be diluted considerably of its reach and effectiveness if
on the mere plea that the liberty to
contract would be restricted, the statute complained of may be characterized as
a denial of due process. 
The right to property cannot be pressed to such an unreasonable
extreme.”

I realize the difficulty
in pinpointing the line where restrictions on property ownership go beyond the
constitutional bounds of reasonableness. 
Each case must be resolved on its particular merits.  Insofar as this petition is concerned,
however, I concur with the dissenting minority. 
I vote to grant the petition.

DISSENTING OPINION

MEDIALDEA, J.:

The main issue in this petition is whether the restriction
against the construction of “more than one single-family residential
building” should be interpreted to be also a restriction against the use of
the building, after its completion, by more than one family, or whether it is merely a limitation as
to the style or type of building and does not define its use after
construction.

The majority has adopted the view invoked by respondent FORBES
PARK ASSOCIATION, INC. that houses at the subdivision may be occupied by but a
single family.  I, however, read no such
limitation and hesitate to imply one especially that which restricts
proprietary rights.  An owner should be
at liberty to do what he wishes with his property.  Any limitation to his right must be explicit
and convincing.  And any doubt that might
arise between free use of property and restrictions thereto must be resolved in
favor of the former.  Committed to this
principle, I am of the opinion that CARIDAY may, in the exercise of its
proprietary rights, lease its building, unrestricted, to more than one tenant.

Aside from the case of
Financial Building Corporation, et al. v. Forbes Park Association, G.R. No.
79319, April 6, 1988, there appears no Philippine case which touches on
the interpretation of “one single-family residential building”
restriction.  In the United
States the rulings vary.  Though there are cases to the contrary, I
subscribe to the opinion that:

“x x x a
covenant directed only against the type of structure is not violated where the
building, having the outward form of a single residence for
private dwelling, is used for a multiple dwelling.

“x x x a
restriction providing that only one dwelling house should be erected on the
property [is] not violated where the evidence showed that the structure
complained of was a one-family house, notwithstanding that it was occupied by
two families at the same time, [the reason given being] that many occupants of
unquestioned one-family houses rented the upper floor or other portions of the
house to a separate family for separate use, and that this could be done in the case of practically all single-family houses, but that
obviously did not change the essential character of the house.

“x x x a two-family
residence was not a violation of a restriction that not more than one building
should be erected upon the lot, [it was held that] the word ‘building’ connoted
normally matter of construction, whereas the word ‘residence’ referred to a use
or mode of occupancy to which the building was to be put, saying that it
was one thing to restrict the
uses to which a
lot might be put to
the construction of one building upon it, but another to
restrict the use to which the building should be put, adding that restrictions pertaining to matters of construction
were so essentially distinct from restrictions prescribing the use or mode of
occupancy that the employment of the former, instead of carrying with it the
implication that the latter was meant, tended strongly to forbid such
implication.” (14 ALR 2d §21, p. 1432; see also 20 Am Jur
2d §190, p. 760) (Underscoring mine)

That the restriction under consideration is directed solely on
the type or style and number of buildings which may be constructed on the lot is
clear from this annotation at the back of CARIDAY’s
certificate of title, to wit:

“Lots may be only used for residential purposes and not
more than one single-family residential building
will be constructed thereon except that separate servant’s
quarters may be built.  All building must
be of strong material and of a
type of Architecture that is in harmony with the surrounding
landscape and homos of the vicinity. x x x.”
(Underscoring mine)

The first sentence of the said annotation at the back of the
title is also found in the Association’s rules and regulations (Art. IV, Sec.
1(b)) where the proviso was elaborated by providing that a separate garage and
bathhouses for swimming pools may also be built, and covers a situation where a
member owns two or more lots.

That this restriction is only
a building restriction becomes more evident when We
consider that there is a separate rule (Art. IV, Sec. 1(c))
regarding the use and occupancy of the building after its completion, namely:

“c.  Use
and occupancy of a house.  The use and occupancy of houses and
other improvements inside Forbes Park
shall be exclusively for residence only of the owners and bonafide
residents, their families, house guests, staff and domestics but never for
commercial, business or office purposes, such as but not limited to hotels,
restaurants, resorts, motels, condominiums, stores, clubs, schools, studios, or
any kind of office whatsoever.”

Since the subject of use and occupancy is expressly defined in
paragraph (c), such provision is deemed to have covered and embraced all and
every restrictions regarding the subject, and We
should not, therefore, imply from another provision in the Association’s rules
a restriction foreign to paragraph (c). 
“Implied restriction can arise and will prevail only when there is no expression on the subject matter of the
implied covenant, and an express agreement or covenant excludes the possibility
of an implied one of a different nature.” (20 Am Jr. 2d, §12, p. 585)

As can be read from the
Association’s rules, the only restriction regarding occupancy is that it must
be used solely for residential purpose. 
It does not limit the number of families which may occupy the building.  The majority cites the restriction against
hotels and motels as indicative of the intention to limit the number of
families which may occupy a building. 
The reason advanced for the proscription is to avoid overcrowding of
families in the houses and also at the subdivision.

It must be pointed out,
however, that the injunction against the use of buildings at the subdivision as hotels and motels is not their
use by more than one family but rather the commercial nature of such
establishments.  This is clear because
hotels and motels were made examples of the broad category of commercial,
business and office use of buildings together
with restaurants, resorts, stores, etc. 
It does not in any way broach the idea on how many families may occupy a
building house.  In this connection, it
must be stated that leasing of houses at Forbes Park is not prohibited, as in fact, the
Association’s rules provide that long-term lessees are required to be and are
automatically members of the Association.

To my mind, the
restriction under dispute is based on aesthetic consideration and this could be
gleaned when We again read the annotation at the back of CARIDAY’s
certificate of title where, after providing that only one residential building
may be constructed on a lot, mandates that the type of architecture of the
building must be in “harmony with the surrounding landscape and homos of
the vicinity.” If We were to sustain Forbes Park’s argument, strict
compliance of the alleged implied restriction would effectively prohibit the
homeowners from allowing families of their own children to reside with
them, much less, their relatives.  The
inequity of this situation would leave Us no
alternative but to make an exception to Our interpretation, that homeowner’s
married children may continue to live with their parents.  And if
another inequitable situation should arise, is it proper for Us
to make an exception to Our exception? 
If We follow this through We would be inventing
rules not otherwise existing according to Our prejudices, thus:  blood brothers are allowed but not
brothers-in-law; first cousins are allowed but not second cousins; best friends
are allowed but not exceeding three months, and so on.  Again a question should be asked on the
argument that the proscription is to
prevent overcrowding:  How overcrowded
are five families of the homeowner’s children against five families of strangers?

Respondent Association
cites the case of Forbes Park Association Inc. v. Hon. Federico Alikpala, Jr., CA-G.R. S.P. No. 121170, promulgated on July 27,
1987, which ruled
that:

“Indeed, the structure
in question is grossly violative of the
Association’s rules and regulations that lots
at Forbes Park
Village should be used for residential purpose only; that not
more than one single residential building should be constructed on one lot; and
that only one family should reside in the
said building.”

and which decision We, only last April 6, 1988,
had affirmed in Financial Building Corporation, et al. v. Forbes Park
Association, supra.  A perusal of
the case, however, supports CARIDAY’s argument of its
inapplicability.

In said case, the
government of the Union of Soviet Socialist Republic contracted with Financial
Building Corporation (Financial for short) for the construction of a residential house at its
lot at Forbes Park for the use of its Trade Representatives to the Philippines.  The
FPA approved the building plan submitted by Financial and construction
commenced.  Before its completion,
however, FPA, alleging that there was a deviation from the approved building
plan, ordered suspension of work and prevented Financial from bringing into the
construction site personnel and materials. 
The main objection there by FPA was although what appears to be in the building plan is a one large residential building,
what was being constructed was more than one building – which was a violation
of the rule that there shall be constructed only one residential building.  The question, therefore, was factual.  Thus, our affirmance
was basically premised on the principle that findings of facts of the Court of
Appeals will not be disturbed by Us unless they were
based on surmises and conjectures. 
There, the Court of Appeals found that, indeed, what was being
constructed were three separate buildings which manifestly appear to be, even
on the outside, not intended for the residence of only one family.  Therefore, the pronouncement by the Court of
Appeals that only one family should reside in the building is a mere obiter dictum since the issue there was the construction of
more than one building.

ACCORDINGLY, I vote to GRANT this petition.