Donation of subdivision roads, parks and open spaces under Section 31, PD 957 - "Section 31's compulsion to donate (and concomitant compulsion to accept) cannot be sustained as valid. Not only does it run afoul of basic legal concepts; it also fails to withstand the more elementary test of logic and common sense. As opposed to this, the position that not only is more reasonable and logical, but also maintains harmony between our laws, is that which maintains the subdivision owner's or developer's freedom to donate or not to donate. This is the position of the 1998 White Plains Decision. Moreover, as this 1998 Decision has emphasized, to force this donation and to preclude any compensation-is to suffer an illegal taking."

G.R. No. 194190, January 25, 2017
REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH), Petitioner
vs.
SPOUSES FRANCISCO R. LLAMAS and CARMELITA C. LLAMAS, Respondents


"x x x.

In insisting on a compulsion on subdivision owners and developers to cede open spaces to government, the Department of Public Works and Highways references Presidential Decree No. 957, as amended by Presidential Decree No. 1216, otherwise known as the Subdivision and Condominium Buyer's Protective Decree.

The first paragraph of Section 31 of Presidential Decree No. 957 spells out the minimum area requirement for roads and other open spaces in subdivision projects. Its second paragraph spells out taxonomic or classification parameters for areas reserved for parks, playgrounds, and for recreational use. It also requires the planting of trees. The last paragraph of Section 31 requires-note the use of the word "shall"-subdivision developers to donate to the city or municipality with territorial jurisdiction over the subdivision project all such roads, alleys, sidewalks, and open spaces. It also imposes upon cities and municipalities the concomitant obligation or compulsion to accept such donations:

SEC. 31. Roads, Alleys, Sidewalks and Open Spaces. - The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a. 9% of gross area for high density or social housing (66 to 100 family lot per gross hectare).

b. 7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

c. 3.5 % of gross area low-density or open market housing (20 family lots and below per gross hectare).

These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands, and non-buildable. The plans of the subdivision project shall include tree planting on such parts of the subdivision as may be designated by the Authority.

Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept; provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or municipality concerned. No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or purposes. (Emphasis supplied)
The last paragraph of Section 31 is oxymoronic. One cannot speak of j a donation and compulsion in the same breath.

A donation is, by definition, "an act of liberality." Article 725 of the Civil Code provides:

Article 725. Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it.
To be considered a donation, an act of conveyance must necessarily proceed freely from the donor's own, unrestrained volition. A donation cannot be forced: it cannot arise from compulsion, be borne by a requirement, or otherwise be impelled by a mandate imposed upon the donor by forces that are external to him or her. Article 726 of the Civil Code reflects this commonsensical wisdom when it specifically states that conveyances made in view of a "demandable debt" cannot be considered true or valid donations.49

In jurisprudence, animus donandi (that is, the intent to do an act of liberality) is an indispensable element of a valid donation, along with the reduction of the donor's patrimony and the corresponding increase in the donee’s patrimony.50

Section 31's compulsion to donate (and concomitant compulsion to accept) cannot be sustained as valid. Not only does it run afoul of basic legal concepts; it also fails to withstand the more elementary test of logic and common sense. As opposed to this, the position that not only is more reasonable and logical, but also maintains harmony between our laws, is that which maintains the subdivision owner's or developer's freedom to donate or not to donate. This is the position of the 1998 White Plains Decision. Moreover, as this 1998 Decision has emphasized, to force this donation and to preclude any compensation-is to suffer an illegal taking.
III

The Court of Appeals correctly stated that a "positive act"51 must first be made by the "owner-developer before the city or municipality can acquire dominion over the subdivision roads."52 As there is no such thing as an automatic cession to government of subdivision road lots, an actual transfer must first be effected by the subdivision owner: "subdivision streets belonged to the owner until donated to the government or until expropriated upon payment of just compensation."53 Stated otherwise, "the local

government should first acquire them by donation, purchase, or expropriation, if they are to be utilized as a public road."54

This Court's 2014 Decision in Republic v. Ortigas55 succinctly captures all that we have previously stated:

Delineated roads and streets, whether part of a subdivision or segregated for public use, remain private and will remain as such until conveyed to the government by donation or through expropriation proceedings. An owner may not be forced to donate his or her property even if it has been delineated as road lots because that would partake of an illegal taking. He or she may even choose to retain said properties. 56
The Department of Public Works and Highways makes no claim here that the road lots covered by TCT No. 179165 have actually been donated to the government or that their transfer has otherwise been consummated by respondents. It only theorizes that they have been automatically transferred. Neither has expropriation ever been fully effected. Precisely, we are resolving this expropriation controversy only now.

Respondents have not made any positive act enabling the City Government of Parafiaque to acquire dominion over the disputed road lots. Therefore, they retain their private character (albeit all parties acknowledge them to be subject to an easement of right of way). Accordingly, just compensation must be paid to respondents as the government takes the road lots in the course of a road widening project.

x x x."