Fernández Ramírez v. Registrar of Property of Guayama

82 P.R. 523

• Court: Supreme Court of Puerto Rico
• Decided: May 2, 1961
• Docket: Nos. 1360, 1361
• Status: Published

Opinions

Mr. Justice Blanco Lugo

delivered the opinion of the Court.

Eduardo Fernández Ramírez¹ presented to the Registrar of Property a certified copy of Order No. 16, Series of 1955-56, of the Municipal Assembly of Guayama, for the registration of the possession of a lot in favor of said Municipality and the right of usufruct in favor of the appellant be recorded. The Order copied verbatim reads as follows:

“Order No. 16, Series of 1955-56.

“Office of the Secretary Auditor:—

“Granting the usufruct of the Municipal lot to the resident Eduardo Fernández Ramírez, and permission for its registration in the Registry of Property of Guayama.

IN THE NAME OF THIS MUNICIPALITY:

“Whereas: —It appears from the files of this municipality that the Municipality of Guayama has been, from time immemorial, in possession, quietly, peacefully and uninterruptedly, as owner, of a lot whose description is as follows:

“ -‘URBAN: Lot owned by the Municipality of Guayama, measuring forty feet on the north, fifty-four feet on the SOUTH, forty-one feet on the EAST, and sixty feet on the west, and bounded: facing the lot, that is, on the WEST, by Rodolfo Alonso, formerly, now Juana Pica; on the left, which is the east, by Juana Alicea, formerly, now Carmelo Centeno; on the rear, SOUTH, by Ernesto Girod, formerly, now Francisco Fernández and on the north, by the street of said location, that is Baldorioty Street.’

“Whereas: —The described lot has a value of five-hundred seventy dollars and the Municipality of Guayama acquired it through a legacy from a lady whose name is unknown or cannot be recalled and whose will has not been found, despite the searches made to that effect, and said lot, like every other lot integrating the community, has been devoted by the municipality to concessionaires in usufruct, to wit, to the residents of the community to devote them to the construction of houses, Eduardo Fernández Ramírez, a resident of the Community, of legal age, married to Josefa Pérez and resident of Guayama, Puerto Rico, being at present in the possession and enjoyment thereof and who is at present the owner of the building erected prior to June 16, 1954:

“Whereas: —Although there does not appear from the files of this municipality the agreement by virtue of which the enjoyment of said lot was granted to the original usufructuaries nor to the herein mentioned Eduardo Fernández Ramírez, it is a proven fact that on said lot stands a house erected more than 20 years ago with the corresponding segregation of the .aforesaid lot and that the right held over it by the present usufructuary, the above-mentioned Eduardo Fernández Ramírez, is legitimate:

“Whereas: —Said interested party has come before this Municipal Legislative Body, requesting that the corresponding order be entered granting him NUNC pro tunc, the usufruct of said lot, thus ratifying the enjoyment which he now exercises .and therefore permission be granted to record it in the name of the Municipality of Guayama:

“Whereas: —Said lot is free from any encumbrances, does not appear recorded in the Registry of Property of Gua-.yama and its registration is convenient to the interested (sic) of this Municipal Corporation:

“Therefore: —Be it resolved by the Hon. Municipal Assembly of Guayama, Puerto Rico:

“First Section : —It is hereby accepted and declared that the resident, Eduardo Fernández Ramírez, of the foregoing personal circumstances is the owner at present of the immovable located on the above-described lot and the usufruct NUNC pro tunc of said lot is hereby granted by lucrative title as for now, to the petitioner herein Eduardo Fernández Ramírez, during all the time that he or his assignees or successors maintain in good conditions the construction built thereon and 'they abide to the other conditions established herein:

“Second Section : —It is an express condition of this concession that the Municipality of Guayama reserves the right to impose in the future, any tax, excise or rent which to that effect might be established by ordinance; the concessionary and his heirs or successors being bound to pay said tax, excise •or rent:

“Third Section : —The concessionary or his assignee is likewise authorized to request the registration in the Registry ■of Property of the District: which registration shall be made at his expense without any further obligation on the part of the Municipality of Guayama, Puerto Rico:

“Fourtpi Section : —This concession is made by virtue •of the powers and authority granted to this Assembly by Act No. 61 approved by our Hon. Legislative Assembly of the Commonwealth of Puerto Rico on June 16, 1954, amending §§ 70 and 71 of Act No. 53 approved April 28, 1928:

“Fifth Section : —The Municipal Secretary Auditor is ordered to give to the interested parties, upon payment of the corresponding fees, a certified copy, in triplicate, of the present order:

“Sixth Section : —The concession and permission established herein are issued without prejudice to a third party with a better right:

“Seventh Section : —Any ordinance, order, motion or any part thereof which oppose the present order are hereby repealed.”

On July 16, 1957 the Registrar denied the registration sought because, in his opinion, the document “involves the segregation of a lot having an area of less than five cuerdas² and the ratification of the usufruct of said lot (without stating the date of the original concession of the usufruct) without complying with the requirement of establishing the approval by the Honorable Planning Board of Puerto Rico for said segregation.” On the same date he denied the registration in favor of the appellant of the possession of a house located on said lot, on the ground that said lot is not recorded and that only a cautionary notice is entered in favor of the Municipality.

In the briefs introduced and in discussing the factual situation that gave rise to the refusal notes, the appellant as well as the respondent Registrar, start from the premise that the document presented for registration involves a segregation.

2a The position assumed by the parties finds support in the expositive part of the order itself, when it says that “it is a proven fact that on said lot stands a house erected more than 20 years ago with the corresponding segregation of the aforesaid lot.” But even if the order was susceptible of both interpretations, that is, whether or not it involves a segregation, evidently, a public policy reason tend to prompt us to adopt that which defines it as the segregation of a lot.

Section 24 of the Puerto Rico Planning Act³ provides that from and after the effective date of the Subdivision Regulation no subdivision shall be made nor recorded in the Registry of Property except when finally approved by the Board; and the word “subdivision”⁴ includes the division or subdivision of a lot, tract or parcel of land into two or more parts for sale, transfer, cession, lease, donation, usufruct, use, census, trust, as well as for any other transaction, or for a new building, and also a simple segregation (italics ours). We have repeatedly decided that this provision does not apply to subdivisions prior to September 4, 1944, effective date of said regulation, Sepúlveda v. Registrar, 64 P.R.R. 428(1945); Rivera v. Registrar, 64 P.R.R. 440 (1945); Matos v. Planning Board, 66 P.R.R. 417 (1946); Rodríguez v. Registrar, 66 P.R.R. 727 (1946), in which the sale of a remainder of a lot was involved after several segregations were effected prior to the effective date of the Regulation, Wilcox v. Registrar, 67 P.R.R. 445 (1947) which dealt with a lot that appeared as an independent unit in an urbanization plan approved prior to the Planning Act; Zayas v. Registrar, 68 P.R.R. 39 (1948); Zayas v. Planning Board, 69 P.R.R. 27 (1948); cf. Ramos v. Registrar, 69 P.R.R. 660 (1949). Now, after said date, when the owner of a lot in which buildings are constructed segregates a parcel of land from the main property, and sells it, the fact that prior to the effective date of the Regulation said buildings existed, does not make it inapplicable and the approval of the Board is necessary. Fortunet v. Planning Board, 67 P.R.R. 245 (1947); Pérez Mercado v. Board, per curiam, decided on July 26, 1949; cf. Rivera v. Registrar, supra. In these cases, although the segregation existed as a matter of fact prior to September 4, 1944, the approval of the Planning Board is necessary if it is completed after said date.

In regard to these segregations of fact we said in Alicea v. Registrar, 71 P.R.R. 554, 559 (1950) that “whether the segregated lot actually existed as such prior to the effectiveness of the Subdivision Regulation, is not within the province of the Registrar to decide at first instance, but rather within the province of the Board itself.” Of course, the power of said Board in these cases may not be exercised arbitrarily and the exemption from complying with the construction plans or recording, or construction of certain minimum facilities, should be granted when the evidence shows in an authentic manner that the segregation occurred in fact prior to the oft-repeated date. Fuertes v. Planning Board, 76 P.R.R. 603 (1954). But the mere fact that the segregation occurred prior to September 4, 1944 does not exclude the necessity of the intervention of the Board when the segregation is completed after said date. To that effect, for sub-divisions de facto and site improvement works previously .accepted, the Subdivision Regulation, Second Edition (23 .R. & R.P.R. §§ 10-404 and 10-405) provides as follows:

^'Section 74. — Subdivision de facto.

"“In those cases of subdivisions de facto in which, in accordance with the proof which may be submitted, the Board concludes that they were carried out before September 4, 1944, the Board shall so notify by resolution to the interested party, so that he can proceed with the filing of the same in the corresponding registry of subdivision plans.

“Section 75. — Site Improvement Works Previously Accepted.

“When the proposed subdivision is located on a street which has been legally developed and accepted as such by the corresponding municipality before the 4th of September of 1944, new Improvement works for that street shall not be required, except public lighting and water and sewer services connections. Said •subdivision, however, must conform to all other requirements and provisions set forth in this subchapter.”

Undoubtedly any subdivision or segregation for the purpose of granting the right of usufruct requires the approval of the Planning Board even in cases of municipal lots. Naturally, said approval is unnecessary when it appears from the document presented for registration that the right of usufruct was granted prior to September 4, 1944. However, it is not sufficient that it be stated in the order or ordinance approved to that effect that a previous concession is ratified, if the date on which the usufruct was originally granted does not appear. In Ramos v. Registrar, 69 P.R.R. 660 (1949) we affirmed the Registrar’s refusal to record a certified copy of an ordinance of the Municipal Assembly of Gurabo ratifying the concession to a usufruct on a lot because the date of the original cession was not stated in the document since there existed the possibility that the original concession occurred subsequent to September 4, 1944.

With a view to adjusting to our opinion in the Ramos case, the municipal ordinance in question grants the usufruct of the lot to the appellant “nunc pro tunc” and it is stated in the expositive part, that the municipality has possessed it from time immemorial, that it acquired it by a lady’s legacy whose name is unknown or cannot be remembered, and that the building standing thereon was constructed over twenty years ago. We wish to make clear that although the reference to the date of the original concession is sufficient for the registration of an ordinance ratifying the original concession of a right to a usufruct, yet the mere expression of the Municipal Assembly, is not sufficient for the latter purpose, it being necessary to attach a copy of the ordinance or order of the original concession.⁵ This is the only way by which the Registrar may ascertain that it is not one of those cases in which it is indispensable to obtain the exemption from the Planning Board.⁶ Neither may resort be had to the simple proceeding of granting the usufruct “nunc pro tunc”.⁷ It is convenient to make clear that the reference to the date of the original concession of the usufruct is only important in determining whether the segregation actually existed prior to September 4, 1944, but that in no case it affects the legality of the title. See § 70 of the Municipal Law of 1928 (Act No. 53 of April 28,1928 (Sess. Laws, p. 334) as amended by Act No. 61 of June 16, 1954 (Sess. Laws, p. 334, 21 L.P.R.A. § 262)). Rivera v. Registrar, 78 P.R.R. 511 (1955) .7a Naturally in those cases in which the petitioner accompanies the ordinance or order with a copy of the agreement of the Board dispensing from compliance with the Regulations because it was a segregation de facto, the question of the original concession of the right to usufruct lacks importance.

The recent urban planning pursues the commendable purpose of attaining an ordered and scientific development of the communities, greater general welfare and a better enjoyment of the minimum facilities which the State provides. It tends, among other things, to avoid excessive traffic con-gestions, excessive cost of public improvements and the growth of slums or of blighted areas. The Planning Board is the agency established by the Legislature to enforce that sound public policy. Hence, we have decreed the nullity, even between the parties, of a deed of sale of a segregated lot executed without the previous authorization of the Board, Soto v. Feliciano, 80 P.R.R. 595 (1958).

Even when the order from the Municipal Assembly of Guayama substantially complies with all the requisites provided by the act for the registration of the municipal property,⁸ still the approval or the dispense of the Planning Board was necessary. Although it was not a segregation de facto existing prior to September 4, 1944, the rules adopted by the Board for the cessions of the right of usufruct of municipal lots are very liberal.⁹

For the reasons set forth, the notes of the registrar will be-affirmed.

1 Eduardo Fernández Ramírez having died after the commencement ■of these proceedings we ordered on August 6, 1958 that he be substituted by his heirs, Eduardo Fernández Pérez and Josefa Pérez widow of Fer-nández.

2 This reference to an area of less than 5 cuerdas was unnecessary in the ease of a lot in the urban zone. See § § 3 and 32 of the Planning Regulation No. 3 (Public Planning and Development, 23 R. &R.P.R. §§ 10-3 and 10-32; Velazquez v. Registrar, 65 P.R.R. 395 (1945); Vega v. Registrar, 65 P.R.R. 97 (1945).

“ In petitioner’s brief, in stating the legal problem involved, it says: “We propose in this brief A. — -To show that the document presented for registration contained the date of the concession of the usufruct and of the segregation in a way that the Registrar is compelled to accept, B.— That since said date appears therein, it is unnecessary to comply with the requisite of obtaining from the Planning Board the permission to which the Registrar refers. To apply to the facts in this case a regulation which went into effect on September 5, 1944 when from the text of the certificate it appears that said lot, the concession, and the segregation of the lot were effected more than 20 years ago.” And once more, in the second assignment he states that the Regulation is inapplicable to “concessions and segregations (that) were effected before the act went into effect....” As we said in Coll v. See. of the Treas., ante, pp. 26, 35 (1960), with reference to the facts and the evidence, the principle is that ordinarily the parties and the court are bound by the allegations, admissions and stipulations but not by the interpretation of the law, which is specifically and exclusively a function of the courts. Cf. Freeman v. Noguera, Seeretai~y of the Treasury, ante, p. 298,. Although this rule refers to judicial transactions we see no reason for not applying the same to the case at bar.

3 Act No. 213 of May 12, 1942 (Sess. Laws, p. 1106, 23 L.P.R.A. § 25), as amended by Acts No. 155 of May 14, 1943 (Sess. Laws, p. 488); No. 388 of May 11, 1950 (Sess. Laws, p. 904) and No. 434 of May 14, 1951 (Sess. Laws, p. 1226).

4 Section 2 of the Planning Act, supra p. 1106, (23 L.P.R.A. § 2), as amended by Acts No. 155 of May 14, 1943 (Sess. Laws, p. 488), No. 475 of May 16, 1947 (Sess. Laws, p. 1070) and No. 388 of May 11, 1950 (Sess. Laws, p. 904). The amendments introduced to this section as to its definition of the word “subdivision” constitute an acknowledgment of the wit of the legal profession. See Enriquez v. Registrar, 65 P.R.R. 383 (1945); Colón v. Registrar, per curiam decided on May 9, 1947; Martinez v. Registrar, 73 P.R.R. 203 (1952); of. Biascoechea v. Registrar, 76 P.R.R. 234 (1954).

5 We presume that the need to ratify the concession of the usufruct is due to the fact that the original concessionaire is a different person from the present usufructuary.

6 The power recognized to the Registrar, within his duty of classifying, to examine the document of the original concession of the right of usufruct does not limit in any way the power of the courts to decide, in the appropriate eases, whether there really existed a segregation prior to the effective date of the Planning Act and its regulations. Rosado v. Registrar, 71 P.R.R. 516 (1950). In the majority of these cases — dominion title proceedings — the intervention by the Board is granted. Section 395 of the Mortgage Law (30 L.P.R.A. § 737) as amended by Act No. 71 of June 18, 1957 (Sess. Laws, p. 165).

7 Generally the term “nunc pro tunc” is used to describe jtidicial orders and actions which are issued to correct errors of form, omissions and inadvertences. State v. Ranking, 93 N.E.2d 281 (Ohio 1950); The Princess Sophia, 36 F.2d 591 (DC D.C., 1929); In re Jurkowitz’ Estate, 59 (Pa. 1948); Collins v. Williams et al., 36 S.W.2d 93 (Teim. 1931); In re Peter’s Estate, 51 P.2d 272, 274 (Okla. 1935). Cf. Rule 49.1 of the Civil Procedure; Banco Popular v. Superior Court; Dominguez, Int., ante, p. 236 (1961).

The amendment introduced to the aforesaid § 70, which was made subsequently to our opinion in the Ramos case has not the scope of setting aside our ruling in that case, because our ruling is limited to requiring the date of the original concession of the right of usufruct for the sole purposes of determining whether the segregation actually existed prior to September 4, 1944, inasmuch as the concession of usufruct of lots made by a municipality prior to the effectiveness of the Subdivision Regulation are recordable notwithstanding the fact that the requirements of said regulation had not been met. The clear purpose of this amendment to the effect that “In the case of any person who prior to the approval of this Act has built or acquired a building on a lot belonging to the municipality without there being any proof that he has been previously granted an usufruct on said lot pursuant to this Act, the Municipal Assembly may in its discretion and on petition of the owner of the building, grant to him in perpetuity the usufruct of the lot always in conformity with the pertinent provisions of this Act relative to the granting of lots in usu-fruct,” is to prevent that the mere fact that no proof exists of the concession of the usufruct prior to June 16, 1954, precludes the Municipal Assembly from granting the usufruct afterwards. We point out, in passing, that this provision was not added to the Municipal Law of 1960 (Act No. 142 of July 21, 1960, 21 L.P.R.A. §§ 1101 et seq.), effective since June 9, 1961.

8 Section 36 of the Mortgage Law Regulations (30 L.P.R.A. § 866), as amended by Act No. 5 of February 16, 1965 (Sess. Laws, p. 22); Antomattei v. Registrar, 40 P.R.R. 862 (1930); Municipality v. Registrar, 40 P.R.R. 198 (1929); Ramirez v. Registrar, 77 P.R.R. 710 (1954).

9 By Order of July 24, 1957, the Board agreed on the approval of the cessions in usufruct and the sale of municipal lots with a minimum frontage of 5.5 meters and depth of 15 meters, provided they are occupied by buildings, and their frontage and areas cannot be enlarged because of the existence of special conditions preventing it. We observe, that in regards to such linear measures the lot referred to in this petition meets all the requirements specified by the Board.