LEGAL BRIEF

This pertains to the concerns of Mr. Rolando Oloteo Aponio

(“MR. ROLANDO”), who is currently working as an
Administrative Aide for the Center for Culture and the Arts of
the University of Makati. He sought the legal services of the
Center for Legal Aid Services (CLAS) of the university following
their eviction from their property in Rizal.

FACTS AND CIRCUMSTANCES

The following are derived from the initial communication and

documents submitted to the CLAS:

MR. ROLANDO is currently residing at Mayon Street, Libis,

Binangonan, Rizal, in a property which was acquired by his
father, Mr. Reynaldo Aponio (“MR. REYNALDO”) from one
Angelo Lopez (“ANGELO”).

The purchase took place on 25 February 1990 as evidenced by a

Kasulatan ng Bilihang Patuluyan executed between MR.
REYNALDO and ANGELO. However, it is to be noted that that the
document is not notarized. MR. RONALDO also presented a Tax
Declaration of Real Property in the name of ANGELO.

It appears from the other documents presented and as

mentioned in the letter of MR. RONALDO that the property in
which the house stands is by the Lazi River.

On 8 February 2021, MR. REYNALDO received a letter (Huling

Abiso) from the Municipal Mayor asking them to leave the
premises. It was alleged that the property in which the house
was constituted encroaches parts of the street and the river in
violation of numerous laws. For this reason, they were given
until the end of the February 2021 to abandon their home.
Otherwise, the authorities shall commence demolition of the
structures therein.

On 12 February 2021, Mr. REYNALDO received a Notice of

Violation from the Binangonan Ecological and Solid Waste
Management Office. The letter enumerated a number of
environmental laws that were violated by MR. REYNALDO for his
failure to observe the easement requirements in building his
house.

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Hence, a legal advice was sought by his son, MR. RONALDO.

QUESTIONS RAISED AND ISSUES ENTAILED

A perusal of MR. RONALDO’s letter raises the following

questions and the relative legal issues:

I. May they still exercise their right over the property

notwithstanding the fact that the documents they
possess relative to the property are not notarized?

A. Does MR. REYNALDO have a right over property

and the structures built thereon within the area
provided in the Kasulatang Bilihang Patuluyan?

B. Does MR. REYNALDO have a right over the

property in excess of the area specified in the
Kasulatan, thereby allegedly encroaching the
riverbanks and the streets?

C. Did the unnotarized Kasulatang Bilihang

Patuluyan affect the validity of the purported
sale?

II. What are the documents that he is supposed to receive

from the barangay and/or the municipal office for
purposes of eviction and demolition?

A. For what causes and reasons may eviction and

demolition be effected?

B. What is the procedure provided under the law?

What are the safeguards in place for carrying out
eviction and/or demolition orders?

C. Was there sufficient basis for the eviction of MR.

REYNALDO and his family from the property or
the demolition of the structure built thereon?

III. Are they given the right to relocation? If so, should this
be granted prior to the commencement of the
demolition?

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DISCUSSION / OPINION PROPER

I.
Yes, MR. REYNALDO may exercise his rights over the property
despite the deed of sale being unnotarized. However, the
exercise of ownership is only to the extent that the Deed
specifically provided not encroaching a portion of the river
banks and the street.

A. Mr. Reynaldo has a right

over the land and the
structures built thereon
within the area specified in
the Kasulatan

MR. REYNALDO has a right to the property purchased by virtue

of the Kasulatan executed by him and ANGELO.

Sale, by its very nature, is a consensual contract because it is

perfected by mere consent. The essential elements of a contract
of sale are the following: (1) Consent or meeting of the minds,
that is, consent to transfer ownership in exchange for the price;
(2) Determinate subject matter; and (3) Price certain in money or
its equivalent.

There is no dispute that the elements were present. There was a

meeting of the minds between the buyer and the seller. The
contract sufficiently delineated the subject matter. The contract
likewise provided for the consideration or price in exchange for
transfer of ownership.

However, ownership of the thing sold is acquired by the vendee

only from the moment it is delivered to him in any of the ways
specified in articles 1497 to 1501, or in any other manner
signifying an agreement that the possession is transferred from
the vendor to the vendee.1

Therefore, the time the property has been placed in the control
and possession of the MR. REYNALDO, in absence of contrary
agreement by the parties, ownership can already be said to have
passed.

The owner of a parcel of land is the owner of its surface and of

everything under it, and he can construct thereon any works or

1
Article 1496, New Civil Code.

3
make any plantations and excavations which he may deem
proper, without detriment to servitudes and subject to special
laws and ordinances.2

B. Mr. Reynaldo does not have

a right to the excess area
encroaching the riverbanks
and street; these are of public
dominion

It was alleged in the Notice of Violation as well as in the Huling

Abiso letter that the structures built by MR. REYNALDO have
encroached a part of the riverbanks and the street.

Within these areas, MR. REYNALDO has no ownership as

established by a number of laws and jurisprudence.

There is what we easement wherein an encumbrance is imposed

upon an immovable for the benefit of another immovable
belonging to another owner, or for the benefit of a community.3
This operates as a restriction on the property rights and a
limitation to the title of the owner of the immovable of the
servient estate.4

The 1st paragraph of Article 638 of the New Civil Code, modified
by Article 1057 of the Water Code of the Philippines, provides
one of these restrictions, applicable to the present case, to wit:

The banks of rivers and streams and the shores of the

seas and lakes throughout their entire length and
within a zone of three (3) meters in urban areas,
twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins are
subject to the easement of public use in the interest
of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this
zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build
structures of any kind.

Furthermore, the Court has ruled in the case of Pilar

Development vs. Dumadag that the three-meter zone is public
land. Hence, MR. REYNALDO cannot exercise acts of ownership
within these areas.

2
Article 437, New Civil Code.
3
Article 613 and 614, New Civil Code.
4
Solid Manila Corp. vs. Bio Hong Trading, Co., G.R. No. 90596, 8 April 1991.

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As to the portion of the structure encroaching a part of the
street, MR. REYNALDO has likewise no ownership. These make
up properties of public dominion.

Article 420 of the Civil Code enumerates those that are deemed
of public dominion, such as:

(1) Those intended for public use, such as roads,

canals, rivers, torrents, ports and bridges constructed
by the State, banks, shores, roadsteads, and others of
similar character;

(2) Those which belong to the State, without being for

public use, and are intended for some public service
or for the development of the national wealth.

Property for public use in the municipalities consist of

municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by
municipalities.5

Properties for public use are outside the commerce of man.6

Hence, they cannot be alienated or otherwise be subject matter
of contracts.7 Moreover, they cannot be acquired by prescription
or a passage of time.8

The unnotarized Kasulatang

Bilihang Patuluyan did not
affect the validity of the sale

The absence of notarization of the deed of sale would not

invalidate the transaction evidenced therein.

Article 1356 of the New Civil Code clearly states that contracts
are obligatory, in whatever form they may have been entered
into, provided all the essential requisites for their validity are
present. Moreover, Article 1318 of the same Code which
enumerates the requisites of a contract does not mention
notarization. It only requires (1) consent of the contracting
parties; (2) object certain which is the subject matter of the
contract; and (3) cause of the obligation which is established.

5
Article 424, New Civil Code.
6
Dacanay vs. Asistio, G.R. No. 93654, 6 May 1992.
7
Villanueva vs. Castaneda and Macalino, G.R. No. L-61311, 21 September 1987.
8
Insular Government vs. Aldecoa, G.R. No. L-6098, 12 August 1911.

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Take note, however, under Article 1358, it is required acts and
contracts that create, transmit, modify or extinguish real rights
over immovable property should appear in public document,
which is achieved through notarization. It creates an impression
that contracts involving land must be notarized. But the
provision does not go into the validity of a contract. It is rather
ordered for the convenience of the contracting parties.

Sale of real property though not consigned in a public

instrument or formal writing, is nevertheless valid and binding
among the parties, for the time-honored rule is that even a
verbal contract of sale or real estate produces effects between
the parties.9

It only becomes necessary to have the deed of sale notarized for

registration purposes. Section 112 of the Property Registration
Decree states that deeds, conveyances, encumbrances,
discharges, powers of attorney and other voluntary
instruments, whether affecting registered or unregistered land,
executed in accordance with law in the form of public
instruments shall be registerable implying that the contract
must be notarized.

To conclude, a private deed of sale involving land is valid and

binding between the parties. Its validity is not affected by the
lack of notarization. Nevertheless, the contract should be
notarized for purposes of registration with the appropriate
register of deeds.

II

Eviction and demolition activities within the Philippine

jurisdiction are primarily governed by the Republic Act No.
7279, otherwise known as the Urban Development and Housing
Act of 1992 (“UDHA”). Under the provisions of this Act, the local
government units (“LGUs”) are mandated to supervise eviction
and demolition activities and ensure that the necessary rules
and regulations are carried out in accordance with the law.

Causes calling for the

allowance of eviction and
demolition

9
Tigno vs. Aquino, G.R. No. 129416, 25 November 2004.

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Eviction or demolition as a practice shall be discouraged.
Eviction or demolition, however, may be allowed under the
following situations10:

(1) When persons or entities occupy danger areas

such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other
public places such as sidewalks, roads, parks,
and playgrounds;

(2) When government infrastructure projects with

available funding are about to be implemented;
or

(3) When there is a court order for eviction and

demolition.

Section 27 of the same law also provides for Summary Eviction

and Demolition of Dwellings and Structures against Professional
Squatters and Squatting Syndicates. Who these squatters are
defined as follows:

“Professional squatters” refers to individuals or

groups who occupy lands without the express
consent of the landowner and who have sufficient
income for legitimate housing. The term shall also
apply to persons who have previously been awarded
home lots or housing units by the government but
who sold, leased or transferred the same to settle
illegally in the same place or in another urban area,
and non bona fide occupants and intruders of lands
reserved for socialized housing.”

“Squatting syndicates” refers to groups of persons

engaged in the business of squatter housing for
profit or gain.”

There are also evictions or demolitions involving

Underprivileged and Homeless Citizens. To be considered as
such, reference may be had to Section 9 of UDHA:

“Underprivileged and homeless citizens” refers to the

beneficiaries of this Act and to individuals or families
residing in urban and urbanizable areas whose
income or combined household income falls within
the poverty threshold as defined by the National

10
Section 28, UDHA.

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 Economic and Development Authority and who do
not own housing facilities. This shall include those
who live in makeshift dwelling units and do not enjoy
security of tenure.”

Procedure under the

governing law

Section 28 of the UDHA provides the mandatory requirements

in the execution of eviction or demolition orders involving
underprivileged and homeless citizens, which are:

(1) Notice upon the affected persons or entities at

least thirty (30) days prior to the date of eviction
or demolition;

(2) Adequate consultations on the matter of

resettlement with the duly designated
representatives of the families to be resettled
and the affected communities in the areas
where they are to be relocated;

(3) Presence of local government officials or their

representatives during eviction or demolition;

(4) Proper identification of all persons taking part

in the demolition;

(5) Execution of eviction or demolition only during

regular office hours from Mondays to Fridays
and during good weather, unless the affected
families consent otherwise;

(6) No use of heavy equipment for demolition

except for structures that are permanent and of
concrete materials;

(7) Proper uniforms for members of the Philippine

National Police who shall occupy the first line of
law enforcement and observe proper
disturbance control procedures; and

(8) Adequate relocation, whether temporary or

permanent

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Meanwhile IRR Governing Summary Eviction11 particularly
outlined the procedure involving evictions and demolitions
affecting Professional Squatters and Squatting Syndicates:

(1) That as a pre-requisite, the LGU or the

concerned agency authorized to demolished
thru their Task Forces on Relocation and
Resettlement (TFRR) shall direct its Surveillance
Team to conduct an ocular site inspection
within 24 hours upon receipt of reports of
violation by squatter families.

(2) That there must be a Summary Eviction Notice

signed by the mayor or his authorized
representative. Said notice must:

a. Printed in English and Filipino or local dialect

b. contain the date and time of the summary

eviction to be undertaken by the LGU

c. be served by personal delivery and

acknowledge by any adult member of the
household.

(3) That in the implementation of the eviction

process:

a. The eviction team must present duly signed

document or authority to dismantle to the
occupants present and introduce themselves
as the body duly constituted to implement
the eviction operation;

b. During the actual eviction process, the

eviction team will order the occupants to
move out of the structure and remove their
valuables and other belongings which they
wish to remove and they shall be given one
hour to do this. Otherwise, persons who
refuse to leave the structure to be dismantled
shall be moved out by force.

c. An inventory of the same shall be entrusted

to the Barangay Chairman as well as the
dismantled materials to be impounded.

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Section 3, IRR of UDHA

9
 Materials and belongings unclaimed within
15 days shall be utilized for the improvement
of the concerned barangay.

Mr. Reynaldo may not be

evicted as to the portion
covered by Deed lawfully held
by him; Cause of demolition
may arise with respect to the
portion encroaching river
bank

As earlier discussed, we are of the opinion that Mr. Reynaldo is

in lawful ownership of the portion as specified in the Kasulatan.
Thus, structures built to that extent should not be subject to
demolition unless for causes under (2) and (3) of Section 28 of
the UDHA.

With the circumstances earlier intimated by the client, as well as

the documents attached to his letter, nothing suggests that the
cause fall possible eviction and demolition falls under
aforementioned.

However, with respect to the part of the structure encroaching

within the area of the river banks, a cause for eviction may arise
for occupying danger areas, which is under the first ground.

Also, it must also be established if MR. REYNALDO falls under

the definition of professional squatter, squatting syndicate or
underprivileged.

Nevertheless, the execution of eviction and demolition could not

be possible if the structures placed therein are of permanent
nature. No jurisprudence exists currently on this matter.

If the LGU has seen a possible ground outside of all the

foregoing, it should be with notice in compliance with the
requirements of due process. It should be noted that the Local
Government does not empower the mayor to order the
demolition of anything unless the interested party was afforded
prior hearing.

III

Pursuant to Section 28 of R.A. 7279, for the execution of eviction

or demolition orders involving underprivileged and homeless

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citizens, it is mandatory that there is adequate relocation to be
undertaken by the local government unit concerned and the
National Housing Authority with the assistance of other
government agencies within forty-five (45) days from service of
notice of final judgment.

Should relocation not be possible within the said period,

financial assistance in the amount equivalent to the prevailing
minimum daily wage multiplied by sixty (60) days shall be
extended to the affected families by the local government unit
concerned.

Should the case of MR. REYNALDO be not classified as one

involving the underprivileged but as one involving Section 28
(a), Section 29 of the UDHA provides for another remedy, which
is resettlement. The local government units, in coordination
with the National Housing Authority, shall implement the
relocation and resettlement of persons living in danger areas
such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and in other public places such as
sidewalks, roads, parks, and playgrounds.

The local government unit, in coordination with the National

Housing Authority, shall provide relocation or resettlement
sites with basic services and facilities and access to employment
and livelihood opportunities sufficient to meet the basic needs
of the affected families.

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