The blinding aura of SM Prime Holdings’ position
(Article Published in the June 30,2013 issue of Business Mirror)
Like movie goers who walk into the theatre long after the screening has began, we will fail to understand the import of the teledrama recently seen between the Bases Conversion and Development Authority (BCDA) and SM Prime Holdings, Inc., as developer of SM Aura Premium in Taguig City, unless we step back in time and understand how it was in the beginning.
Clarity was not helped at all by the ranting and raving of the President and CEO of BCDA, Arnel Paciano D. Casanova, Esq. (in less boastful lingo, the function of “Esq.” following the name is sufficiently served, for most Filipino lawyers, by “Atty.” at the beginning) on prime time TV last week. It only made the SM’s Atty. Ryan San Juan’s task of grinding Casanova’s posturing into mince meat all the more easy. Atty. San Juan is SM Prime Holdings vice president for legal.
There is no denying that SM Prime Holdings derived its rights to put up SM Aura Prime from the City of Taguig. This fact is sufficiently established by the appropriate resolutions from the City Council of Taguig and relevant lease contracts between the city and the private corporation.
The crux of the matter therefore is whether SM Aura Prime is consistent with the conditions under which the City of Taguig come into possession and control of the area where SM Aura Prime is located. The documents speak for themselves.
There is a document entitled “Memorandum of Agreement for the Conveyance of A 33.15 Hectare Area in Fort Bonifacio Taguig as Local Government Centers, Sports Facilities and Parks” between the BCDA, with its then President and CEO Rufo Colayco as authorized signatory, and the Municipality of Taguig, represented by its then mayor Sigfrido R. Tinga. This was executed and duly notarized as early as February 11, 2004.
This document is not the Deed of Conveyance itself, nor as Casanova seems to have understood Deed of Donation, but rather simply a present memorandum or aide memoire of what the parties had respectively agreed to do in the future. The actual conveyance is to be effected under a more definitive document to be executed later, usually after certain conditions are met by both parties, after certain representations of either party are verified by the other, and after certain events, anticipated by all, have occurred.
On the part of BCDA, the basic commitment was to perfect its title to the lots that were intended to be transferred thereby establishing for the record its legal capacity to enter into the contemplated transaction.
The then Municipality (now the City) of Taguig, for its part, as befits the receiving beneficiary of the transaction, was to shoulder the full cost of transferring the title to the property to itself and of the planning, development, disposition or other utilization of the property.
Two provisions stood out significantly. The first is that upon completion of the transfer to it of the titles, Taguig would cease to “pursue its claim on the 25-hectare property formerly known as the Bonifacio IT Park...and other claims for BCDA property in Fort Bonifacio...” The second is that “Taguig [apparently in the meantime while the process of transferring is being perfected] shall accept and assume jurisdiction over and manage the use of the subject properties.”
The aforesaid waiver by Taguig of its claims shows that there was some consideration that was given by Taguig for the benefits and prerogatives it received in exchange. This debunks the Casanova characterization of the intended transaction as a donation.
The actual (as distinguished from “intended” or “agreed to be done” by the parties) agreement was executed early 2008. The documentation was denominated properly as “Deed of Conveyance...”. Like any contract document that is drafted by lawyers who are desirous of making their jobs easy should the transaction become subject of later litigation or controversy, it has the Whereas-es (I deliberately put a hyphen to prevent my computer from misspelling the last four letters into “-asses”) to put forth the antecedent events that led to the agreement.
The operative words in the Deed of Conveyance are “BDCA transfers and conveys to Taguig the following properties with a total area of ....”. The present tense of the verbs removes the meeting of the minds from the realm of intent to the world of facts.
These magic words, functioning like the “I do” in marriage vows, seal the deal. And since the deal is no longer in the future but rather in the here and now, each parcel of land needed to be specified by title number and described by metes and bounds.
To make the transfer, for consideration indubitably clear (pardon the redundancy), the General Agreements recited in Section 2 reiterate both the waiver by Taguig of its claims over other properties of BCDA and BCDA covenant to “no longer pursue and hereby withdraws, drops, relinquishes any and all its claims over the properties described under Section of the abovementioned Memorandum of Agreement.”
And to foreclose any further interference by BCDA on the use of the conveyed property, a specific stipulation, forward looking this time, binds BCDA to “not place any restrictions on the land use or zoning of the properties specified under Section 1 of the abovementioned Memorandum of Agreement.”
No clearer expression of the intent of the parties, thereby giving Taguig the right to use the property on which SM Aura Prime is located can be thought. And, without volunteering any unsolicited advice to anyone who ought to know better, a deliberate departure from the terms of the Deed of Conveyance by the BCDA would expose its erring officials to the scrutiny of the Ombudsman.