Eminent Domain by LGUs: Why an Ordinance Is Required, Not Just a Resolution

The power of a local government unit (LGU) to take private property for public use is not absolute. Under Section 19 of Republic Act No. 7160, the Local Government Code, an LGU may exercise eminent domain only through its chief executive acting pursuant to an ordinance — not a mere resolution. In Beluso v. Municipality of Panay (G.R. No. 153974, August 7, 2006), the Supreme Court reaffirmed this rule and struck down an expropriation that rested on a resolution alone, even though the landowners raised the objection only on appeal.

The Facts

The petitioners owned about 20,424 square meters of land covered by free patents in Panay, Capiz. On November 8, 1995, the Sangguniang Bayan issued Resolution No. 95-29 authorizing the municipal mayor to initiate expropriation proceedings. The municipality filed a petition for expropriation in 1997.

The landowners moved to dismiss the case, arguing that the taking was not for public use but for the benefit of certain individuals, that it was politically motivated, and that some supposed beneficiaries never signed the petition requesting the property. The trial court denied the motion to dismiss, declared the taking to be for public use, and appointed commissioners to determine just compensation.

The landowners later filed a petition for certiorari with the Court of Appeals, which dismissed it. They then elevated the case to the Supreme Court.

The Issue

The central question was whether the Municipality of Panay validly exercised its delegated power of eminent domain when its expropriation was authorized only by a resolution, and not by an ordinance as required by Section 19 of the Local Government Code.

The Ruling

The Supreme Court ruled in favor of the landowners and dismissed the expropriation complaint without prejudice.

The Court explained that eminent domain is essentially lodged in the legislature. While Congress may delegate this power to LGUs, the exercise of the delegated power is not absolute. LGUs have no inherent power of eminent domain; they may expropriate only when authorized by Congress and subject to the restraints imposed by the delegating law.

Section 19 of R.A. No. 7160 sets out the requisites for an LGU to exercise eminent domain:

1. An ordinance enacted by the local legislative council authorizing the local chief executive to pursue expropriation over a particular private property;
2. The power is exercised for public use, purpose, or welfare, or for the benefit of the poor and the landless;
3. Payment of just compensation as required by the Constitution; and
4. A valid and definite offer has been previously made to the owner and was not accepted.

The Court emphasized that an LGU cannot authorize expropriation through a mere resolution. An ordinance is a law with general and permanent character, enacted after a third reading. A resolution, by contrast, is merely a declaration of the sentiment or opinion of the lawmaking body on a specific matter and is temporary in nature.

Because the Municipality of Panay's expropriation was based on Resolution No. 95-29 and not on an ordinance, the Court found the expropriation defective. The Court noted that the landowners failed to raise this objection at the earliest opportunity, but it still considered the issue because the defect was apparent from the petition for expropriation itself and the case was clearly meritorious.

The Court also clarified that the municipality was not barred from instituting similar proceedings in the future, provided it complies with all legal requirements.

Why This Matters

The case underscores a strict procedural requirement that LGUs must follow before exercising the power of eminent domain. A resolution expressing the council's sentiment is not enough. The law requires a formal ordinance — a legislative act with the force of law — to authorize the taking of private property.

This protects landowners by ensuring that expropriation is a deliberate, transparent decision of the local legislative body, not merely an informal expression of intent. The Court's willingness to consider the defect even when raised late on appeal shows that compliance with this requirement is a matter of law, not just procedure.

Practical Takeaways

• An ordinance is mandatory. A local government cannot validly expropriate private property based only on a resolution of the Sanggunian. The ordinance must specifically authorize the chief executive to pursue the expropriation of the particular property.
• Check the requisites early. Landowners facing expropriation should verify that the LGU has complied with all four requisites under Section 19 of the Local Government Code, including the ordinance requirement and a valid, definite prior offer.
• Raise objections promptly. While the Supreme Court may consider a defect raised for the first time on appeal in meritorious cases, it is safer to raise all objections at the earliest opportunity in the trial court.
• A defective expropriation can be dismissed without prejudice. An LGU that fails to comply with the requirements is not barred from filing a new expropriation case later, provided it corrects the defects.
• The power of eminent domain is strictly construed. Courts will scrutinize an LGU's exercise of this delegated power, since it derogates the constitutionally protected right to private property.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.