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EXERCISES

(Legal Opinion and Memorandum Writing)

For Legal Opinion


A. Mario is the owner of the property leased to Ana for a period of one (1) year. When the lease expired, Ana refused to vacate the premises. Mario ask you to render a legal opinion on how he could evict Ana with dispatch as newly wed son need the property, at the least expense. Mario is residing in the same barangay.

B. Rizal, a Canadian national, came to the Philippines as tourist. To secure an investors visa, he bought a condominium unit located at Roxas Blvd. worth P6 Million. The deed of sale was silent as to who should pay the taxes and registration fees due the government. The vendor refused to pay the capital gains tax claiming that the broker made it clear that Rizal is to shoulder the same. Rizal wants your opinion whether, under our laws, he is liable for capital gains tax.

FOR TRIAL MEMORANDUM


In the probate proceedings of the will of Arthur, it was established that the will contained the following: (i) a provision disinheriting his daughter Bernice for running with a married man; and (ii) a provision disposing of his share in the family house and lot in favor of his other children Connie and Dora. No provision in favor of his wife Erica, because as the will stated, she would get of the house and lot as her conjugal share. Erica contested the probate of the will as she claimed to being a compulsory heir having been preterited.

ANSWERS
TO LEGAL OPINION: A. 08 October 2011 Dear Mr. Mario:
Per your request, herewith is our opinion. From the facts you provided us, it is established that: (1) the lease contract has expired without being renewed or extended; (2) there was no dispute as to ownership of the leased property; and (3) your main concern is to evict Ana at the least expense.

Under the law, expiration of lease contract is a ground to eject the occupant of the leased property in an action for unlawful detainer under Rule 70 of the Rules of Court to be filed in the courts of first level where the property is located. No prior demand is necessary for such special civil action. It is, however, a condition precedent that you must first file a complaint in the barangay where both of you resides as a condition precedent in filing such action, which would entail delay in ejecting Ana from the property if no compromise is reach during the conciliation proceedings.

This may seem circuitous according to your needs. To skip barangay conciliation proceedings, the law allows the direct filing of the complaint in court where an application for provisional remedy is sought, such as preliminary attachment and preliminary injunction under Rule 57 and 58 of the Rules of Court, as long as the grounds exists. (state the grounds possible to a client.) In such a situation, the court will proceed summarily with the case because it is covered by the summary procedure. (discuss the nature of summary procedure.) We trust that we have answered your questions and we look forward to be of service to you in the future.

Legal Opinion
B. (Date) Dear Mr. Mario: Herewith is our legal opinion on the matter as requested. (follow the brief summary of facts as given by the client) The National Internal Revenue Code in the Philippines do not impose tax burden called as capital gains tax to a buyer of real property regardless of his nationality unless it is so provided in the Deed of Sale. Therefore, the seller of the condominium unit should pay that tax. This clearly provided in (state the law) With the foregoing, we hope to have fully addressed you legal concern and we look forward to be of service to you in the future.

Legal Memorandum
Memorandum for the plaintiff NOTE: the issue that must be addressed in the problem is: WHETHER TO GRANT OR DENY PROBATE OF ARTHURs LAST WILL AND TESTAMENT ON THE GROUND THAT HIS WIFE, ERICA, WAS PRETERITED.

The components of Trial Memorandum


1. The Parties Names, relationship, litigation status 2. The objectives of the Parties What each side is seeking.

3. The theory of the Litigation The cause of action and the defense.
4. The facts The facts that are key to the resolution of the issues. 5. The Issue/Issues The questions of facts or law

6. Discussion/Arguments The conclusions or answers to issued 7. The Reliefs The reliefs prayed for the party (who is filing the memorandum). LEGAL BASIS OF YOUR ARGUMENT In probate proceedings, the probate court shall consider extrinsic validity of the will. Preterition is not among the grounds to invalid a will that would deny its probate. Rule 76, Section 9 of the Rules of Court enumerates the grounds for disallowing a will, to wit: (state the grounds, IF YOU CAN STILL RECALL. There are 5) Moreover, there was no preterition of Erica.

Moreover, there was no preterition of Erica. Article 854 of the New Civil Code provides that preterition or omission one, some, or all of the compulsory heirs in the direct line, x x x, shall annul the institution of heir; but the devises and legacies shall be valid in so far as they are not inofficious. Erica is not related to Arthur in the direct line.

GOOD LUCK TO ALL OF YOU. YOU WILL MAKE IT AND BE WITH US IN THIS NOBLE PROFESSION NEXT YEAR!

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