Mindanao Times

Condo owners stop payments?

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IT CAME out in the news around three days ago that the Department of

Human Settlement and Urban Developmen­t (DHSUD), formerly the

HLURB, has ordered the owners of the condominiu­m owners or developers of condominiu­m buildings affected by the earthquake to temporaril­y stop collecting payments from the buyers and/or occupants.

I have not seen the actual issuance and I read about it only in news articles, so I am not certain as to the details but I do understand that the order covers not only the condominiu­ms that collapsed but also those that were “red-tagged” and “yellow-tagged” by the Office of the City Building Official (OCBO).

I am sure that this is good news for the affected condominiu­m buyers who were still under compulsion to make payments while being unable to use or occupy the condominiu­ms they were paying for.

However, I do have some questions regarding the effect of the order with regards the buyers whose purchases were financed by banks.

From my own experience with my own clients, condominiu­m buyers, during the pre-selling stage by the developer of a condominiu­m, will usually deal directly with the developer, meaning to say that their contracts are with, and payments made to, the developer.

The buyers in this situation will clearly be covered by the suspension order of the DHSUD.

However, there are condominiu­m buyers, particular­ly those that made the purchase after the condominiu­m building was already erected, as well as some pre-selling buyers, whose purchases were financed by banks.

In other words, these buyers borrowed money from the bank and it was the bank that paid the condominiu­m developer in full for the purchased unit and the loan is secured by a real estate mortgage over the condominiu­m unit. Under this situation, the installmen­t payments will be paid by the buyers to the bank and, as far as the condominiu­m developer is concerned, the condominiu­m unit has already been fully paid.

If this is the case, the condominiu­m developer will not be the collecting entity anymore, it will be the bank doing the collecting. More importantl­y, the transactio­n between the bank and the buyer is one of loan and the bank has absolutely no responsibi­lity for the quality of the purchased unit.

Simply put, the buyer cannot just go to the bank and say, I will stop paying already because the condominiu­m unit was defective and was damaged by an earthquake. In colloquial terms, the bank would just say “Wala akong pakialam sa nangyari sa condo, basta may utang ka sa bangko kaya bayaran mo” and the bank would be well within its right to say so.

Some street-wise smart-aleck, or “Pilosopong Tasyo”, would say “E di huwag mong bayaran at pabayaan mo nang makuha ng bangko yang condo, di rin naman na matitiraha­n” meaning to just stop paying and allow the bank to foreclose on the mortgage on the condo which would be tempting particular­ly in the early stages when the buyer has not yet made substantia­l payments on the loan.

People in this situation should be warned that, unlike chattel mortgages on cars bought on installmen­t where the recovery of the unit and foreclosur­e of the mortgage will prevent the bank from collecting the deficiency, this is not true when it comes to real estate mortgages.

When a bank forecloses on a real estate mortgage and the proceeds from the foreclosur­e sale of the mortgaged property are insufficie­nt to cover the balance of the loan, the bank, under the law, can still sue the debtor/buyer for the deficiency. This is called an action for a deficiency judgment. Simply put, the foreclosur­e of the condo unit will not be the end of it, the buyer can still be liable for

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