Chamber of Real Estate & Builders' Associations, Inc.

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ICT infra space allotment in housing projects: adverse implications

The ratified House Bill requiring allocation of ICT infrastructure areas in housing projects poses adverse implications – with its indiscriminate applicability, exploitation of the open space requirement and oppressiveness for socialized housing communities.

The Lower House recently ratified the consolidated substitute Bill requiring the allocation of space for the establishment of ICT infrastructure and facilities in housing projects.

Under this Bill, all residential development projects are covered by the requirement, including already completed and existing housing subdivisions.

In the case of proposed or ongoing projects, the developer has the option to either allocate a portion of the mandatory 30% open space requirement, or provide the ICT area out of the net saleable lots.

In the case of existing subdivisions, the homeowners association (HOA) is required to designate the ICT area out of the open space.

Earlier, CREBA submitted its recommended revisions to the House Committee on Housing and Urban Development. However, the issues raised in those recommendations were unresolved.

Applicability

CREBA’s position is to exempt a project when the project area does not encompass a site duly identified for the construction and establishment of ICT infrastructure and facilities under the comprehensive locational plan of the Department of Information and Communication Technology (DICT).

The rationale is that not all housing project sites would be ideal for establishing ICT infrastructure.

Without an exemption proviso, the law could be interpreted such that the area reservation would be required even when the project site is not within the DICT’s ICT locational plan.

This would be unreasonable and onerous, as developers may end up reserving an ICT area that could simply end up being unused.

Socialized, economic and low-income housing

CREBA’s position is that in the case of proposed or ongoing socialized, economic or low-income housing projects, designating the ICT area out of net saleable lots – rather than the open space – should be mandatory (instead of optional) on the part of the developer. Developers would have no reason to resist, since the designated area could then be subject of transaction between them and ICT providers.

On the other hand, existing subdivisions in these categories should be exempt from the requirement, unless vacant lots exist – in which case the ICT space should be negotiated with the private owner.

The rationale is that the open space allotment for socialized, economic or low-income housing is already too limited to serve fully the needs of the community. This should not be further diminished.

After all, social housing beneficiaries have other needs that may be more pressing than IT.

Inalienability

Under the ratified Bill, the area set aside for ICT can be obtained either through direct purchase, or by way of long-term lease.

CREBA’s position is that as far as open space is concerned, the law should be categorical in affirming the inalienability clause of PD 957.

This means that when the ICT area is designated out of the open space requirement, said area must remain inalienable, and must be made available to ICT providers only by way of long-term lease.

Under PD 957, the mandatory open space is required to be donated to either the municipality or the HOA. It is not meant to be open to trade or subject of private ownership; it is meant for common use and benefit by the community.

As worded, the Bill is susceptible to interpretation that ICT area carved out of the open space requirement would be available for purchase/alienation, and even subsequent sale by the ICT providers in case the infrastructure becomes obsolete.

Unless revised, the contended provision would mean that the common welfare is being sacrificed – in terms of diminishment of space for parks, playgrounds and recreation – in favor of private interest that will certainly benefit from the ever-escalating commercial value of the carved out area.

On the other hand, if the ICT area is within a privately owned lot or part of the net saleable lots, then there should be no bar to alienation or purchase for purposes of this proposed law.

Compensation

The ratified Bill provides that “payment of any kind for the establishment of ICT infrastructure and facilities shall be held in trust by the developer in favor of the homeowners’ association and turned over” to the HOA.

CREBA’s position is that this should be deleted, as it appears nonsensical and would simply result in unnecessary litigation.

For one, if the “payment” contemplated is for the ICT area itself, it would make no sense when said area forms part of the open space, because such area is inalienable or not subject to purchase or payment.

On the other hand, if the ICT area is part of the net saleable lots rather than the open space, then the transaction will be between the developer or lot owner and the ICT provider, and any payments in connection therewith should rightfully accrue to the former – not to the HOA.

For another, if the payment is for the construction of the infrastructure or facility by the developer himself on contract with the ICT provider, then such payment should rightfully accrue to the developer – not the HOA.

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