Deed for SM Aura construction misinterpreted - BCDA

The Bases Conversion and Development Authority (BCDA), in a statement, refuted the claim of SM Prime Holdings Inc. that the controversial SM Aura mall in Taguig City was legally built based on a deed of conveyance (DOC) between the local government and BCDA.

SM alleged that the BCDA conveyed the property to Taguig City by way of compromise.

"The deed of conveyance specifically provides that BCDA will not 'place any restrictions on the land use or zoning of the properties.' There are, no liens, encumbrances or restrictions annotated on the titles to the property," an SM statement read.

The DOC stated that "the subject conveyance is legally sanctioned under Section 1 of R.A. No. 7917 as confirmed by the Office of the Government Corporate Counsel in its Opinion No. 256 dated December 15, 2006.

But the BCDA stressed that Section 1 of the Republic Act 7917 also says that "Approximately forty hectares (40) of land in Fort Bonifacio shall be retained as national and local government centers, sports facilities, and parks."

It is in Section 2 of the DOC that that the line, "BCDA shall not place any restrictions on the land use or zoning of the properties...", is found.

"What Section 2 of the Deed of Conveyance means is that the BCDA is not questioning the use of the land as long as it complies with R.A. 7917, and is within the parameters of civic use," BCDA President and CEO Arnel Casanova said in a statement.

"As long as they use the land either for national or local government centers, sports facilities or parks, we will not place restrictions. But what they did was use the land for a mall, which is a clear violation of the law," he added.

Meanwhile, SM Prime's president Hans Sy reiterated the company's earlier statement that the DOC prevents the BCDA from placing any restriction on the land use.

"Right now, our position is when we went into bidding for this project, we made sure we did our due diligence. And first, they were given all the titles without any restriction," Sy said after the SM Group's media briefing last Friday.

"Ang balita namin this is a property with restrictions. So then they produced a deed of conveyance which clearly states no restrictions. So, I don't know what they're talking about,” he added.

“At the end of the day, general agreement is [that BCDA] shall not place restriction on land use. So I don't know what they are talking about. I really can't comment [because] I don't know what documents they have,” Sy said in separate interview.

Taguig's mayors

During his term, former Taguig Mayor Sigfrido Tinga initially went into discussions with the Ayala Group on the use of land.

“Instead of just building a civic center, it was suggested to intend the property for a mixed use facility to generate funds for the city, [with a] 2,000 to 4,000 square meter space to be appropriated for government offices. City government should also have a percentage on rentals,” the Office of now Congressman SigfridoTinga said in a statement.

However, the discussions on land use was carried over to the term of Taguig's current mayor, Ma. Laarni “Lani” Cayetano.

“After Tinga's term as mayor, he had no idea anymore on what came out of the talks. SM Aura has started construction during Lani Cayetano's term in 2010 and they issued the occupancy permit to SM,” the office of the congressman said.

GMA News Online contacted the local government of Taguig, but it has refused to comment on the issue as the case is currently in court.

According to the public information office of Taguig government, the city legal counsel advised them not to comment on the issue of road construction as well as the construction of SM Aura on the former BCDA land.

Misdeclaration of official purpose

Meanwhile, Casanova also stressed that "SM avoided declaring the official purpose of the development."

Under Article 2, 2.02 Use of Leased Property of the first lease contract, of which GMA News Online obtained from BCDA, Taguig City and SMPHI agreed that the use of the land will be for: traditional office building, international hotel, international caliber serviced residences, low-rise complex, or government office space.

But in a ratified version of the lease contract, approved in December 2007, the components were changed to: "retail and IT commercial building for SM use and/or for sublease to third parties, and trade hall for use of and in compliance of the requirement of Taguig."

"The structure was virtually completed when SM officially announced that it was a mall," Casanova alleged.

Both contracts were signed by then-Taguig City Mayor Sigfrido Tinga and SMPHI President Hans Sy.

For their part, Sy said that they weren't trying to hide anything as the structure was hard not to notice given its size. “Let's be fair, such a big structure and you don't know what's going on?”

In an earlier press release, SMPHI classified SM Aura as a "civic center."

Ignored

Casanova also alleged that in 2009, Bonifacio Estate Services Corporation (BESC), in charge of Bonifacio Global City's upkeep, rejected SMPHI's application for the proposed "community and retail complex" as it was against the law.

"The proposed land uses are inconsistent with ,Section 8(d) of Republic Act No. 7227, as amended, since the same is limited to “national government and local government centers, sports facilities and parks," Casanova said, quoting BESC.

While a BESC permit is necessary for construction activities in BGC, SM was able to commence building by getting a permit from Taguig City Hall, he added.

"We're looking into the possibility of filing cases to protect government interests,” said Casanova, “We're also waiting for certain talks to happen. No one is talking to us. Malinaw naman sa Taguig government and SM ang gusto namin [makausap]. We've always been open to dialog.”

However, Sy finds this unnecessary. “No. Actually the personality with us is Taguig City because we bidded it from Taguig,” he said. — DVM, GMA News