THE claim of the Bases Conversion and Development Authority (BCDA) to a parcel of land it conveyed to the city of Taguig by way of a land-for-land deal when the agency encroached on the city’s own property can be considered a phantom lien—a nonexistent claim to a piece of land now owned by Taguig, but which the BCDA is trying to enforce its ownership rights thereto. The BCDA’s posturing is as preposterous as it is unenforceable, making it a laughingstock.

Somehow, it boggles the mind that the BCDA is trying to impose its property rights on a land it conveyed, free from any lien or encumbrance, to Taguig. Caught in the middle as a result is SM Prime Holdings Inc., which developed the property now being contested by the BCDA, along the “whereases” that the Sangguniang Panglungsod  set forth in the land’s development. In short, SM Aura can be considered being harassed for a phantom claim for which it should not be a party to.

That is because the disputed property, which the city government leased to SM Aura, turned out to be part of compensation to the city in relation to the encroachment of the American Battle Monument Cemetery on parcels of land covered by the Taguig Civic Center. This sort-of compromise agreement between Taguig and the BCDA was formalized in the two separate memoranda of agreement (MOA) they signed on October 21, 1999, and February 11, 2004, that paved the way for the execution of a Deed of Conveyance.

Under that deed, “the present Taguig Civic Center, which is part of the property to be conveyed to Taguig City per the MOA dated February 11, 2004, comprising of an area of 44,997.46, was encroached upon by the American Battle Monument Cemetery [11,026 square meters], the equivalent area of which [the] BCDA agrees to convey to Taguig, through another property in Bonifacio Global City, Taguig.” Thus what the BCDA was insisting on as a civic center could be put up elsewhere in the Fort.

The BCDA cannot drag SM’s name into the dispute with how the property should be developed. After all, SM is just a lessee, having won fair and square a bidding for the development rights to that parcel of land. If ever, the BCDA can pursue its claim with the city government, although even this is suspect since the agency no longer has property rights to what it had conveyed to the local government unit. It is, thus, a ghost of a claim, a phantom lien being used against SM Aura.

The dispute that has embroiled SM puts a damper on the entry of investments into the country. Can anyone explain, for instance, how a local government unit—which wants to stamp its own imprint on the development of its property so that it may earn revenues in the process—can be frustrated in this attempt just because a government body like the BCDA can try to enforce its claim when it clearly has ceded it?

Who in his right mind would try to join a bidding process when this possibility of a de lastiko conveyance or one that speaks of a claim being raised from the dead, so to speak, to question a property development very much like that of SM Aura? That piece of property development is a next-level entry of the SM Group in the emerging landscape of retail business, with top brands being invited to show their wares.

In fact, there is much chatter in cyberspace on how SM has evolved with this new top act of an entrant, a clear departure from its retail offerings as signified by SM City and Megamall. After spending billions for SM Aura, why should the SM Group be punished? Isn’t it odd that it has to contend with the frivolities of the BCDA when all along, it should not even be a party to the issues that the BCDA is harping on? It was just a developer hewing to what Taguig has set forth as parameters.

The harsh reality in this kind of imbroglio that SM found itself in may throw a monkey wrench in the suitability of the country as an investment destination because of what can be perceived as rule changes in midstream. These can magnify an investor’s fear and when there are other choices in the investment milieu, like Vietnam or Myanmar, the Philippines can ill-afford this kind of perception. Hopefully, BCDA top honcho Ariel Casanova can fully appreciate this kind of fear that he foists on investors.