Premature Legal Challenges Questioning Expropriation Before an Ordinance Is Enacted

The power of eminent domain allows the government to take private property for public use, but only under strict legal conditions. For local government units (LGUs), one of those conditions is the enactment of a proper ordinance authorizing the expropriation. In Spouses Yusay v. Court of Appeals (G.R. No. 156684, April 6, 2011), the Supreme Court clarified when a landowner may—and may not—go to court to challenge an impending expropriation.

The case involved property owners who rushed to court to question a city council resolution authorizing expropriation before any ordinance was passed. The Court's ruling offers important guidance on the proper timing and remedies for challenging government takings.

The Facts of the Case

Spouses Antonio and Fe Yusay owned a 1,044-square-meter parcel of land in Mandaluyong City. They used half of it as their residence and rented out the rest to nine families. The land was allegedly their only property and source of income.

On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted Resolution No. 552, Series of 1997. The resolution authorized then-Mayor Benjamin Abalos Sr. to take the necessary legal steps for the expropriation of the Yusays' property for a low-cost housing project for less privileged city residents.

Alarmed by this development, the Yusays filed a petition for certiorari and prohibition before the Regional Trial Court (RTC). They sought to annul Resolution No. 552, claiming it was unconstitutional, confiscatory, and improper.

The Procedural History

The RTC initially dismissed the petition, holding that certiorari could not be directed against a legislative act. However, upon reconsideration, the RTC reversed itself and declared Resolution No. 552 null and void. The trial court reasoned that the petition was not premature because the resolution paved the way for the City to deprive the Yusays of their only property.

The City appealed to the Court of Appeals (CA), which reversed the RTC. The CA held that the resolution deserved the presumption of regularity and that the Yusays' challenge was premature.

The Issue Before the Supreme Court

The central question was whether the validity of Resolution No. 552 could be assailed even before its implementation—specifically, whether certiorari and prohibition were proper remedies against a resolution that merely expressed the city council's intent to expropriate.

The Court's Ruling

The Supreme Court denied the Yusays' petition, affirming the CA but on different grounds. The Court held that certiorari and prohibition were not available remedies under the circumstances.

Certiorari Requires Judicial or Quasi-Judicial Action

Under Rule 65 of the Rules of Court, certiorari lies only against a tribunal, board, or officer exercising judicial or quasi-judicial functions. The Sangguniang Panglungsod, when adopting Resolution No. 552, was acting as a legislative and policy-making body, not as a court settling a controversy. Therefore, certiorari did not lie.

A Resolution Is Not an Ordinance

The Court emphasized a crucial distinction: a resolution expresses the sentiment or opinion of a lawmaking body on a specific matter, while an ordinance is a law of general and permanent character. Under Section 19 of Republic Act No. 7160 (the Local Government Code of 1991), an LGU may exercise eminent domain only "through its chief executive and acting pursuant to an ordinance."

A mere resolution is insufficient. The Court cited Municipality of Parañaque v. V.M. Realty Corporation, which held that the absence of an authorizing ordinance is equivalent to lack of cause of action in an expropriation suit.

Prohibition Was Also Unavailable

Prohibition is directed against proceedings done without or in excess of jurisdiction. The Court noted that no expropriation proceeding existed yet—only a resolution expressing the council's desire to expropriate. The power of eminent domain could be exercised by the City only through the filing of a verified complaint in court. Until then, no expropriation proceeding could be said to exist, and the owners could not be deprived of their property.

Practical Takeaways

• A landowner cannot challenge an expropriation based on a mere resolution. The proper challenge arises only after an ordinance is enacted and actual expropriation proceedings begin.
• Certiorari and prohibition are limited remedies. They apply only to judicial, quasi-judicial, or ministerial acts, not to legislative actions like passing resolutions.
• Section 19 of the Local Government Code is strict. An LGU must act through its chief executive pursuant to an ordinance, not a resolution, before exercising eminent domain.
• A resolution is not a law. It merely expresses intent and confers no rights. An ordinance, by contrast, is permanent and general in character.
• The proper time to raise constitutional objections to an expropriation is when the government actually files the expropriation complaint or takes possession of the property—not before.

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