Removal of Illegal Settlers from Subdivision Open Spaces in the Philippines
A comprehensive doctrinal and practical guide
1. What is “open space” in a subdivision?
| Source of rule | Key points |
|---|---|
| §31, Presidential Decree (PD) 957 – Subdivision & Condominium Buyer’s Protective Decree | • At least 30 % of the gross area of a residential subdivision must be reserved for “open space.” • It is non-saleable and non-buildable except for recreational structures ancillary to its intended use. |
| HLURB/DHSUD Implementing Rules | • Recreational parks, playgrounds, community facilities, buffer strips, and greenbelts all fall under “open space.” • Once the project is completed the developer must donate the open space to the city/municipality (or, with LGU consent, to the homeowners’ association). |
Until the donation and acceptance are completed, title normally remains with the developer; afterward it vests in the local government unit (LGU), held in trust for the community. Either way, the area is public in character—hence private occupation is illegal.
2. Why do illegal occupants proliferate?
- Lax on-site security immediately after project turnover.
- Delayed titling or donation, leaving ownership in limbo.
- LGUs’ shortage of relocation sites, so informal settlers disperse to any vacant land.
- “Professional squatter syndicates” (penalized under §27, R.A. 7279).
3. Legal framework governing eviction
| Statute / Rule | Salient provisions for open-space eviction |
|---|---|
| PD 957 | Developer (or HOA after conveyance) may file administrative complaints with the HLURB/DHSUD for ejectment of persons interfering with the subdivision plan. |
| Republic Act (R.A.) 7279 – Urban Development and Housing Act (UDHA) | • Governs ALL evictions of informal settlers on public or private land. • Requires (a) 30-day written notice, (b) dialogue with occupants, (c) inventory & census, (d) coordination with PCUP and social services, (e) provision or at least offer of relocation for the underprivileged and homeless. • §28 makes a demolition illegal if done without complying with the humane procedures. |
| R.A. 9904 – Magna Carta for Homeowners & Homeowners’ Associations | • §10 empowers an HOA to “institute, defend, or intervene in litigations involving open spaces.” • An HOA that already holds title (or beneficial use) may sue in its own name for forcible entry, unlawful detainer, or accion publiciana. |
| Local Government Code (LGC) of 1991 – §§16 & 444(b)(3)(iv) | • The mayor “shall cause the removal of illegal constructions on public property.” • Once the open space is donated, eviction becomes primarily an LGU responsibility, though the HOA remains a stakeholder. |
| National Building Code (PD 1096) – §§52 & 53 | Unlicensed construction or occupancy can be summarily abated by the Building Official, and violators may be criminally charged. |
| R.A. 8368 | Repealed the Anti-Squatting Law (PD 772) except for “professional squatters” and “squatting syndicates,” who remain criminally liable under §27, UDHA. |
4. Choosing the correct legal remedy
| Scenario | Best cause of action | Venue / forum | Timetable |
|---|---|---|---|
| Occupants entered within 1 year and still possess the land | Forcible entry (Rule 70, Rules of Court) | Municipal/Metropolitan Trial Court | Summary; decision ideally within 30 days after submission |
| Possession originally lawful (e.g., allowed to stay during construction) but now withheld after demand | Unlawful detainer | Same | Same |
| Possession has lasted > 1 year | Accion publiciana (recovery of possession) | RTC (exclusive original jurisdiction) | Regular trial; no statutory period |
| Title already donated to city/municipality | Administrative demolition under UDHA & LGC**: mayor’s order + DILG/PCUP guidelines** | Office of the Mayor / PCUP | Minimum 30-day notice; actual demolition often 60–90 days after notice |
| Structures built without permit | Violation of PD 1096 | Office of the Building Official then Prosecutor’s Office | Stop-work order within days; criminal case follows |
5. Due-process steps required by UDHA
- Written notice to vacate at least 30 days before date of eviction.
- Dialogues or consultations with affected families, HOA, LGU housing office, PCUP.
- Socio-economic survey and tagging of households.
- Relocation or financial assistance plan (mandatory if the occupants are classified as “underprivileged and homeless”).
- Issuance of a demolition order by:
- a court (if a judicial ejectment case was filed), or
- the city/municipal mayor (for administrative demolition of structures on government property).
- Execution with the presence of:
- PCUP or its designated observers,
- social workers/medical personnel,
- barangay/PNP for peacekeeping.
Failure to observe any of the above may render the demolition null and void and expose officials to administrative and criminal liability under §28, UDHA and §3(e), Anti-Graft Act.
6. Jurisprudence anchoring these principles
- Filinvest Land, Inc. v. Court of Appeals, G.R. 164551 (16 Feb 2007) – Open spaces are held in trust for the future homeowners; developer must keep them vacant and fit for their purpose.
- Francisco v. Huerto, G.R. 140941 (16 May 2005) – HOA may sue in its own name to protect common areas even before formal transfer of title.
- Baculi v. Naga City, G.R. 182545 (20 Oct 2015) – LGU retains control to clear illegal structures in donated open spaces; demolition order of the mayor sustained.
- People v. Dizon, G.R. 192706 (26 Jan 2021) – Conviction of leaders of a squatting syndicate under §27, UDHA upheld; “good-faith” informal settlers are treated differently from professional squatters.
7. Practical roadmap for an HOA or developer
| Stage | Action items | Primary actor |
|---|---|---|
| A. Documentation & demand | • Secure TCT, subdivision plan, approved master deed. • Send written demand to vacate (proof of receipt). |
Developer / HOA |
| B. Coordination | • Notify barangay, police, LGU housing office, PCUP. • Conduct census & profiling of settlers. |
HOA + LGU |
| C. Select remedy | • Determine if ejectment suit or administrative demolition is faster, factoring in age of possession and urgency. • Apply for Demolition Permit (Mayor) or file Rule 70 action. |
Legal counsel of HOA/developer |
| D. Ensure UDHA compliance | • Provide relocation or financial aid if needed. • Schedule demolition with 30-day lead time. • Invite human-rights and social-services observers. |
LGU / PCUP |
| E. Post-demolition | • Fence and landscape the cleared open space. • Deploy roving security; consider CCTV. • Secure HLURB/DHSUD clearance for turnover if still pending. |
HOA / LGU |
8. Criminal prosecution (when advisable)
- Professional squatter or syndicate? File information under §27, UDHA (RTC exclusive jurisdiction).
- Illegal construction? Sworn complaint with the Building Official; upon non-compliance with a stop-work order, endorse to the city prosecutor for PD 1096 violation.
- Malicious destruction or theft of community utilities? Ordinary crimes under the Revised Penal Code may attach.
9. Balancing housing rights and community welfare
The 1987 Constitution (Art. XIII, §9) obliges the State to “undertake a continuing program of urban land reform and housing,” but it also protects property rights and the right of homeowners to a safe environment. Courts therefore apply a double proportionality test:
- Is the eviction the least intrusive means of protecting the subdividers’/homeowners’ right?
- Are genuine relocation alternatives offered to bona-fide poor families?
Failure on either prong invites injunctions or damages suits.
10. Key take-aways
- Open spaces are impressed with public use; any private occupation is inherently unlawful.
- Ownership matters: before donation, the burden lies on the developer; after donation, the LGU leads, but the HOA remains a proper party.
- Always route evictions through the UDHA framework—even a “simple” ejectment suit will eventually require compliance with the law’s humane-demolition standards.
- Speed is critical: suits within one year of entry allow a summary Rule 70 remedy; after that, expect a longer accion publiciana trial or administrative demolition.
- Document every step—notices, meetings, socioeconomic surveys. Courts routinely nullify demolitions for want of paper trail.
Suggested checklist (one-page summary)
- Identify owner of open space (TCT / deed of donation).
- Secure HOA resolution and retain counsel.
- Serve demand to vacate; record refusal.
- Coordinate with barangay, LGU Housing, PCUP.
- Decide on court suit vs. administrative demolition.
- Observe UDHA notice, dialogue, relocation.
- Execute demolition with police + social workers present.
- Fence, light, and landscape area post-clearing.
- Turn over or accept turnover of open space via Deed of Donation and Acceptance.
Properly executed, these steps lawfully balance the settlers’ constitutional right to adequate housing with the homeowners’ and LGU’s duty to keep subdivision open spaces free for their intended communal purpose.