𝗗𝗜𝗦𝗖𝗥𝗘𝗣𝗔𝗡𝗖𝗜𝗘𝗦 𝗜𝗡 𝗠𝗔𝗥𝗞𝗘𝗧 𝗔𝗠𝗡𝗘𝗦𝗧𝗬’𝗦 𝗜𝗥𝗥 𝗙𝗢𝗨𝗡𝗗
Certain provisions of the Implementing Rules and Regulations (IRR) of the Market Amnesty Program do not conform with the ordinance.
This was pointed out by the members of the Baguio City Council during the regular session last Monday.
In August 2021, the city enacted an ordinance granting a three-month amnesty program that seeks to put an end to various lease violations in the market stalls or booths that are managed by the city government.
Investigations conducted by the Public Order and Safety Division (POSD) revealed that numerous occupants of the market stalls are renting or leasing from the registered leaseholders while some are occupying the stalls due to the death of the leaseholders or by virtue of transfer by sale, mortgage, or waiver.
Sections 157 and 160 of the market code categorically state that the leaseholder shall physically or personally conduct business in the stall subject of the lease and that the leaseholder shall not sell, lease, or transfer to other individuals their leasehold rights nor permit others to conduct business therein.
Section 161 likewise prohibits the sub-leasing of stalls and the use of dummies.
According to the market code, any of these violations shall be sufficient grounds for the cancellation of the contract of lease with the city.
Under the amnesty ordinance, concerned stall occupants and/or actual leaseholders are given the chance to rectify or act on their violations. After the said period, all arising violations shall be dealt with in accordance with the provisions of the city’s existing tax ordinance.
The actual occupant of the stall may apply for the amnesty program. If the application is approved, the leasehold rights would be transferred to them.
Through Executive Order No. 125, Series of 2021 issued by Mayor Benjamin Magalong, the IRR of the Market Amnesty Program was put into place.
However, Councilor Betty Lourdes Tabanda, principal author of the ordinance, pointed out that certain provisions in the IRR are not anchored in the ordinance.
“It is fundamental in law that the IRR should conform with the provisions of the ordinance,” Tabanda said.
For the transfer of leasehold rights (Section 2.1 of the ordinance), the transferee, upon presenting a Deed of Sale, Waiver of Rights, or acknowledgment by the registered leaseholder of the transfer, shall be issued a Contract of Lease, provided that the transferee is personally or physically conducting business in the stall/booth.
The IRR states that the absence of the transferor (registered leaseholder), whether within or outside the country, shall not be grounds for transfer. It also states that no Special Power of Attorney (SPA) shall not be allowed on behalf of the transferor.
Tabanda argued that the absence of the transferor/registered leaseholder may be considered as “incapacity” which can be a ground for transfer.
She also insisted that the presence of the transferor/registered holder is inconsequential in the process of transferring the leasehold rights as long as the waiver of rights has already been executed. It is the transferee/actual occupant that needs to be physically present in the said process, she added.
For a stall whose registered leaseholder is already deceased (Section 2.2 of the ordinance), the compulsory heirs of the deceased person must execute an Extra-Judicial Settlement or Waiver of Rights designating a person (who may not necessarily be a compulsory heir) to be the next registered leaseholder.
The IRR states that proof or relationship between transferor and transferee shall be produced/presented. This does not apply in cases where the transferor and transferee are not related by consanguinity, according to Tabanda.
For a leaseholder who is sub-leasing or mortgaging their stall or using a dummy (Section 2.3 of the ordinance), they must terminate this relationship. The leaseholder, with the consent of the other party, may regain occupancy of the stall. Should both parties fail to agree, the Contract of Lease shall be revoked or canceled, and the stall shall be declared vacant. The occupant may apply as the next legitimate leaseholder.
The IRR states that the occupant must be in possession or is in actual occupation of the stall WITHIN one year prior to the approval of the ordinance. This contradicts the provision of the ordinance which states that the possession of the stall or the occupation of the stall by the current occupant must be AT LEAST one year prior to the approval of the ordinance.
Other members of the city council agreed with Tabanda’s observations.
Tabanda filed a resolution containing her proposed amendments to the IRR. The proposed resolution is pending before the Sanggunian’s Committee on Laws, Human Rights, and Justice for review.
The three-month period for the filing of an application for the market amnesty ended on February 2, 2022. However, a resolution was passed by the city council and signed by Mayor Benjamin Magalong extending the application period for two more months. –Jordan G. Habbiling