Q:Do you have now with you that appraisal report showing that the actual area of the unit is indeed 95 square meters?A:We gathered the appraisal report and in the December 06, 2004 letter that we gave Mr. Blunden, we consulted the appraiser of the Bank and we were informed that the area was indeed 95 square meters. But that area was brought about by measuring not just the inside of the unit, sir, but including also the terrace, and the common area.39(Emphasis supplied)Respondent has not disavowed Atty. Cruz's testimony. In its Comment, it merely asserted thatthe "[e]xtensive reference to the [transcript of stenographic notes] is unmistakable proof thatthe litigated issue is one of fact, not of law" and insisted that this Court should not takecognizance of the present Petition.40Respondent's insistence on how common spaces should be included in reckoning the Unit'stotal area runs afoul of how Republic Act No. 4726, otherwise known as the Condominium Act,reckons what forms part of a condominium unit.Section 3(b) of the Condominium Act defines a condominium unit, as follows:Section 3. As used in this Act, unless the context otherwise requires:. . . .(b)"Unit" means a part of the condominium project intended for any type of independent use or ownership, including one or more rooms or spaces located in one or more floors (or partor parts of floors) in a building or buildings and such accessories as may be appended thereto.Section 6(a) of the Condominium Act specifies the reckoning of a condominium unit's bounds.It also specifies that areas of common use "are not part of the unit":
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Section 6. Unless otherwise expressly provided in the enabling or master deed or thedeclaration of restrictions, the incidents of a condominium grant are as follows:(a)The boundary of the unit granted are the interior surfaces of the perimeter walls, floors, ceilings, windows and doors thereof. The following are not part of the unitbearing walls, columns, floors, roofs, foundations and other common structural elements of the building; lobbies, stairways, hallways, and other areas of common use, elevator equipment and shafts, central heating, central refrigeration and central air-conditioning equipment, reservoirs, tanks, pumps and other central services and facilities, pipes, ducts, flues, chutes, conduits, wires and other utility installations, wherever located, except the outlets thereof when located within the unit. (Emphasis supplied.)Thus, the unit sold to petitioner was deficient in relation to its advertised area. Thisadvertisement having been made by respondent, it is equally settled there was a falsity in thedeclarations made by respondent prior to, and with the intention of enticing buyers to the sale.What remains in issue is whether or not this falsity amounts to fraud warranting the voiding ofthe Contract to Sell.
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