Monday, December 21, 2015

Living in condominium units

Living in condominium units

A condominium unit buyer in one of the country’s high-end builder-developer, St. Francis Shangri-La property   located along EDSA corner Shaw Boulevard in Mandaluyong City, has complained that as a result of typhoon Glenda that hit Metro Manila last July 16, 2014, one of the glass window panels of her unit was shattered by the strong wind that reached the maximum velocity of 140 kilometers per hour.

 What irritated the unit buyer, identified as Ms. Rachael A. Dizon of Unit 12G Tower 1, is  it took the maintenance department of Shangri-La Properties some time to replace the shattered glass window panel, thus forcing her and her two children to temporarily vacate the place because of the danger posed by a make-shift plywood they covered with a mere tarpaulin.  This was a temporary covering and the floor to her unit got wet every time it rained. 
Although the glass window panel has finally been installed, the owner of said unit claims there was misrepresentation because the glass window panel that was installed was merely heat-strengthened and not a fully tempered glass as Shangri-La advertised.  Ms. Dizon could only surmise that the glass window panel broke at the height of the typhoon because of that.  Also, during the typhoon, the unit owned by Ms. Rinalisa Villacorta also had the floor in her guest room soak wet because rainwater coming probably from the roof leaked into the crevices of her wall.  The leak seeped all they way that practically deformed the lower end of the wall of Ms. Villarcorta’s unit.  At the height of the typhoon, the flooring near the windows was soaked wet, and it was discovered that the latches that were supposed to close tight the glass window panels gave way to the strong wind.  Her niece who was using the place complained about it, and nobody knows if management has acted on it.
Shangri-La having established a good name and reputation in the condominium industry should live up to its name  by attending to the letter-complaints of its unit buyers.   Delay in attending to their complaints and shoddy maintenance could easily erode the reputation it has established and that could well spread to prospective buyers, especially at a time when the country is experiencing a glut in the construction of condominiums.
The most common problem encountered by condominium unit owners is the question of who should manage the condominium once the majority of the units are sold.   It is this aspect that developer/builders of condominiums have been trying to circumvent to avoid turning over the condominium building to the unit owners through their association.  Maybe the developer/builders of the condominiums have their valid reason to retain control of the management, operations and maintenance of the building on matters pertaining to security, elevator system, fire alarm and detection, etc., but whatever it is, such exclusive control and prerogative could no longer be legally sustained because the contract that was signed by the unit buyers is a contract for an absolute deed of sale, not a contract to rent. 
Hiring corporate lawyers of the Shangri-La properties whose brains have been atrophied by their mercenary alacrity to please their employer can never justify their novel idea of “a five (5) year irrevocable proxy” clause they attached in favor of the developer-builder because the Deed of Absolute Sale was paid for by the unit buyers.  Yes, the so-called “five (5)-year irrevocable” clause is a form of contract adhesion, but contract adhesion is only good when the conditions imposed do not violate any existing law.   The contract being an absolute deed of sale, automatically divests Shangri-La properties of whatever right it has to interfere in the collection, finances and affairs pertaining exclusively to the condominium unit owners’ association. 
It is for this why condominium unit buyers, like the homeowners in subdivisions, are allowed and in fact encouraged by law to form their respective associations because the owner of the property/subdivision or condominium no longer owns it.    The only remaining relations that the unit buyers have with the developer/builder of the condominium are those that pertain to warranties which are incorporated in the absolute deed of sale, and those warranties were added into the price they paid for the unit.  It is for that why unit owners stand as having the legal right to be represented in the board of the condominium unit owners’ association, which is usually done by the election of officers by the members.
To allow that questionable 5-year irrevocable proxy clause to apply would be anomalous because the continued collection of whatever fee from the unit buyers by the developer-builder of the condominium could transform the contract of sale to one of rent, and the unit buyers reduced to mere tenants perpetually paying the developer/builder their monthly association dues it would not admit as rents paid by the tenants to a landlord.
Once the sale of all the units has been completed or consummated, the developer-owner of the condominium could no longer participate in the affairs and activities of the board of the condominium unit owners’ association or much more for its appointed protégé, in this case their in-house counsel, to receive whatever remuneration from the monthly due/fees paid by the owner-members for their alleged services for the association. The developer/builder of condominiums cannot fry unit owners from their own lard.
It is for this why every unit owner of the condominium has the right to attend in all the meetings of the association, to demand from the board the information about its activities and accounting of its expenses for the upkeep, maintenance and security of the building.  As said, it is only those aspects which are included as warranties by the develop-builder of the condominium can such relations exist, but it cannot make any additional, arbitrary or unilateral imposition.  Things can only be done through a negotiated agreement between the board representing the association and the management representing the developer-builder.
Outside of the defined relations between the buyer and a seller, the buyer has the right to demand restitution and compensation for any violation of the warranties provided for in the absolute deed of sale.    If the developer-builders think they got the shorter end of the bargain, then they should have built instead a hotel or merely have each of those units rented, and rightly call the occupants tenants, but definitely they cannot have the best of both worlds.  The Housing and Land Use Regulatory Board should know this by heart.

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