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damage. (Sec 11, Rule under the Omnibus
66, ROC, as amended) Election Code.
NOTE: If the dispute is as to the counting of votes or
on matters connected with the conduct of the
election, quo warranto is not the proper remedy but
an election protest. (Cesar v. Garrido, G.R. No. 30705,
25 Mar. 1929)
When Government Commences an Action
against Individuals and Corporations
An action for the usurpation of a public office,
position or franchise may be commenced by a
verified petition brought in the name of the
Republic of the Philippines against:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise;
2. A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office; and
3. An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act. (de facto corporation) (Sec. 1, Rule 66,
ROC, as amended)
When directed by the President of the Philippines,
or when upon complaint or otherwise he or she has
good reason to believe that any case specified in the
Rules can be established by proof, the Solicitor
general or the public prosecutor must commence
the action. (Sec. 2, Rule 66, ROC, as amended)
NOTE: Actions of quo warranto against
corporations now fall under the jurisdiction of the
RTC acting as Special Commercial Courts. (Sec. 5.2,
Securities Regulations Code) Quo warranto will only
lie against de facto corporations.
When Individual may Commence an Action
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another may bring an action therefor in his own
name. (Sec. 5, Rule 66, ROC, as amended)
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However, not any person may file the petition. The
person authorized to file the same is the one who
claims to be entitled to a public office or position
which was usurped or unlawfully held or exercised
by another person. (Sec. 6, Rule 66, ROC, as amended)
Such person may maintain action without the
intervention of the Solicitor General and without
need for any leave of court. He must show that he
has a clear right to the office allegedly being held by
another. (Cuevas v. Bacal, G.R. No. 139382, 06 Dec.
2000)
NOTE: The Solicitor General or public prosecutor
may commence the action at the instance of another
person. In this case, leave of court is necessary. (Sec.
3, Rule 66, ROC, as amended)
Who may Commence (S-P-I)
1. Solicitor General;
2. Public Prosecutor; or
3. Individuals claiming to be entitled to the office
or position usurped or unlawfully held or
exercised by another. (Sec. 5, Rule 66, ROC, as
amended)
NOTE: In order for a petition for quo warranto to be
successful, the suing private individual must show a
clear right to the contested office. His failure to
establish this right warrants the dismissal of the suit
for lack of cause of action; it is not even necessary to
pass upon the right of the defendant who, by virtue
of his appointment, continues in the undisturbed
possession of his office. (General v. Urro, G.R. No.
191560, 29 Mar. 2011)
NOTE: By analogy with provisions of Sec. 5, it has
been held that a public utility may bring a quo
warranto action against another public utility which
has usurped the rights of the former granted under
franchise. (Cui v. Cui, 60 Phil. 57, 31 Aug. 1964;
Regalado, 2010 2017)
Classifications of Quo warranto Proceedings
1. Mandatory – brought by the Solicitor General
or Public prosecutor when:
a. Directed by the President; or
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b. Upon complaint or when he has reason to
believe that the cases for quo warranto can
be established by proof. (Sec. 2, Rule 66,
ROC, as amended)
2. Discretionary – brought by the Solicitor
General or a public prosecutor at the request
and upon the relation of another person,
provided there must be:
a. Leave of court;
b. At the request and upon the relation of
another person; and
c. Indemnity bond. (Sec. 3, Rule 66, ROC, as
amended)
Court which has Jurisdiction
1. It can be brought only in the SC, CA, or in RTC
exercising jurisdiction over the territorial area
where the respondent or any of the
respondents resides.
NOTE: The petition may be brought in the SB
in certain cases but when in aid of its appellate
jurisdiction. (Sec. 4, P.D. 1606, as amended by
R.A. No. 8249; Riano, 2019)
2. An action for quo warranto may be dismissed
at any stage when it becomes apparent that the
plaintiff is not entitled to the disputed public
office, position or franchise. Hence, the RTC is
not compelled to still proceed with the trial
when it is already apparent on the face of the
Petition for quo warranto that it is insufficient.
(Feliciano v. Villasin, G.R. No. 174929, 27 June
2008)
3. When the Solicitor General commences the
action, it may be brought in a RTC in the City of
Manila, in the CA, or in the SC. (Sec. 7, Rule 66,
ROC, as amended)
Q: A group of businessmen formed an
association in Cebu City calling itself Cars C. to
distribute/sell cars in said city. It did not
incorporate itself under the law nor did it have
any government permit or license to conduct its
business as such. The Solicitor General filed
before a RTC in Manila a verified petition for quo
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warranto questioning and seeking to stop the
operations of Cars Co. The latter filed a motion
to dismiss the petition on the ground of
improper venue by claiming that its main office
and operations are in Cebu City and not in
Manila. Is the contention of Cars Co., correct?
Why? (2001 BAR)
A: NO. As expressly provided in the Rules, when the
Solicitor General commences the action for quo
warranto, it may be brought in a RTC in the City of
Manila, as in this case, in the Court of Appeals or in
the Supreme Court. (Sec. 7, Rule 66, ROC, as
amended)
Contents of a Petition for Quo warranto
1. The petition shall set forth the following:
2. The name of the person who claim to be entitled
thereto;
3. If any, with an averment of his right to the same
and that the respondent is unlawfully in
possession thereof; and
4. All persons who claim to be entitled to the
public office, position or franchise may be made
parties, and their respective rights to such
public office, position or franchise determined,
in the same action. (Sec. 6, Rule 66, ROC, as
amended)
Judgment in Quo Warranto Action
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover his
costs. Such further judgment may be rendered
determining the respective rights in and to the
public office, position or franchise of the parties to
the action as justice requires. (Sec. 9, Rule 66, ROC,
as amended)
The court may render judgment for costs against
either the petitioner, relator, respondent, relator, or
respondent, or the person or persons claiming to be
a corporation. The corporation may also apportion
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the costs, as justice requires. (Sec. 12, Rule 66, ROC,
as amended)
Rights of a Person Adjudged Entitled to Public
Office
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office, he may, after taking the oath of office and
executing any official bond required by law:
1. Take upon himself the execution of the office;
2. Immediately thereafter demand all the books
and papers in the respondent’s custody or
control appertaining to the office to which the
judgment relates; and
3. Bring an action against the respondent to
recover damages sustained by such persons by
reason of usurpation. (Sec. 10, Rule 66, ROC, as
amended)
NOTE: A quo warranto proceeding is one of the
instances where exhaustion of administrative
remedies is not required. (Celestial v. Cachopero, G.R.
No. 142595, 15 Oct. 2003)
LIMITATIONS
Period within which a Person Ousted from Office
must File a Petition for Quo Warranto
GR: An action for quo warranto must be commenced
within 1 year after the cause of such ouster, or the
right of the petitioner to hold such office or position,
arose. (Sec. 11, Rule 66, ROC, as amended) The failure
to institute the same within the reglementary
period constitutes more than a sufficient basis for
its dismissal (Alejo v. Marquez, G.R. No. L-40575, 28
Sept. 1987), since it is not proper that the title to a
public office be subjected to continued uncertainty.
(Villegas v. De la Cruz, G.R. No. L-23752, 31 Dec. 1965)
XPN:
1. If the failure to file the action can be attributed
to the acts of a responsible government officer
and not of the dismissed employee. (Conchita
Romualdez-Yap v. CSC, et al., G.R. No. 104226, 12
Aug. 1993)
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2. When the action is filed by the Republic.
(Republic v. Sereno, G.R. No. 237428, 11 May
2018)
NOTE: The periods within which quo warranto
action should be brought are a condition precedent
to the existence of a cause of action.
The pendency of administrative remedies does not
operate to suspend the period of one year within
which a petition for quo warranto should be filed.
While it may be desirable that administrative
remedies be first resorted to, no one is compelled or
bound to do so, and as said remedies neither are
pre-requisite to nor bar the institution of quo
warranto proceedings, they should not be allowed
to suspend the period of one year. Public interest
requires that the right to a public office should be
determined as speedily as practicable. (Torres v.
Quintos, G.R. No. L-3304, 05 Apr. 1951)
The court may reduce the period provided by these
Rules for filing pleadings and for all other
proceedings in the action in order to secure the
most expeditious determination of the matters
involved therein consistent with the rights of the
parties. Such action may be given precedence over
any other civil matter pending in the court. (Sec. 8,
Rule 66, ROC, as amended)
Recovery of Damages against the Usurper of
Office Allowed
If the petitioner is adjudged to be entitled to the
office, he may sue for damages against the alleged
usurper within 1 year from entry of judgment
establishing his right to the office in question. (Sec.
11, Rule 66, ROC, as amended)
F. EXPROPRIATION
(RULE 67)
See discussion on Guidelines for Expropriation
Proceedings of National Government
Infrastructure Projects on page 300
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Power of Eminent Domain
It is the right of the State to acquire private property
for public use upon the payment of just
compensation.
NOTE: The scope of the power of eminent domain
as exercised by the Congress is plenary and is as
broad as the police power. Such power however,
may also be delegated to local political subdivisions
and public utilities. (Riano, 2019)
Expropriation
It is the procedure for enforcing the right of eminent
domain.
NOTE: Expropriation is proper only when:
1. The owner refuses to sell; or
2. If the latter agrees, agreement as to the price
cannot be reached.
NOTE: It is the actual filing of complaint for
expropriation which binds the land, and not a mere
notice of the intent to expropriate. However, the
owner of the land may still dispose of said property,
despite the filing of the action, as the grantee would
merely be substituted in his place and holds the land
subject to the results of the action. (Regalado, 2017)
By reason of expediency, counterclaim, cross-claim
or third-party complaint shall be alleged or allowed
in the answer or any subsequent pleading.
Requisites of the Exercise of a Valid
Expropriation (D-C-P)
1. Due process of law;
2. Payment of just compensation; and
3. Taking must be for public use.
NOTE: In the context of the State's inherent power
of eminent domain, there is "taking" where the
owner is actually deprived or dispossessed of his
property; where there is a practical destruction or a
material impairment of the value of his property; or
when he is deprived of the ordinary use thereof. On
the other hand, just compensation refers to the just
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and complete equivalent of the loss which the
owner of the thing expropriated has to suffer by
reason of the expropriation and is ordinarily
determined by referring to the value of the land and
its character at the time it was taken by the
expropriating authority. (Philippine Veterans Bank
v. Bases Conversion and Development Authority, G.R.
No. 217492, 04 Oct. 2021, J. Hernando)
Properties that are Subject to Expropriation
All properties can be expropriated, except money
and choses in action.
NOTE: Choses in action – A right to personal things
of which the owner has not the possession, but
merely a right of action for their possession. (Black’s
Law Dictionary, 2004)
Scope of Expropriation
Expropriation is not limited to the acquisition of
real property with a corresponding transfer of title
or possession. The right-of-way easement resulting
in a restriction or limitation on property rights over
the land traversed by transmission lines also falls
within the ambit of the term “expropriation.”
(National Power Corporation v. Vda. De Capin, G.R.
No. 175176, 17 Oct. 2008)
Court that has Jurisdiction
It is filed with RTC because it is an action incapable
of pecuniary estimation regardless of the value of
the subject property.
MATTERS TO ALLEGE
IN COMPLAINT FOR EXPROPRIATION
The right of eminent domain shall be exercised by
the filing of a verified complaint, which shall:
1. State with certainty the right and purpose of
expropriation;
2. Describe the real or personal property sought
to be expropriated;
3. Join as defendants all persons owning or
claiming to own, or occupying, any part thereof
or interest therein, showing, so far as
practicable, the separate interest of each
defendant; and
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4. If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals, or if the title is otherwise obscure
or doubtful so that the plaintiff cannot with
accuracy or certainty specify who are the real
owners, averment to that effect shall be made in
the complaint. (Sec. 1, Rule 67, ROC, as amended)
Rule 67 outlines the procedure under which
eminent domain may be exercised by the
Government. Yet by no means does it serve at
present as the solitary guideline through which the
State may expropriate private property. For
example, Section 19 of the Local Government Code
(RA No. 7610) governs as to the exercise by local
government units of the power of eminent domain
through an enabling ordinance. There is RA No.
8974, which covers expropriation proceedings
intended for national government infrastructure
projects. (Republic of the Philippines v. Gingoyon, G.R.
No. 166429, 19 Dec. 2005)
1. TWO STAGES IN EVERY ACTION
FOR EXPROPRIATION
1. First stage – the determination of the authority
of the plaintiff to expropriate. This
determination includes an inquiry into the
propriety of the expropriation – its necessity
and the public purpose.
NOTE: The first stage will end in the issuance of
an order of expropriation if the court finds for
plaintiff or in dismissal of the complaint if it
finds otherwise.
2. Second stage – the determination of just
compensation through the court-appointed
commissioners. (Riano, 2016)
GR: Just Compensation must be reckoned from
the time of taking or filing of the complaint,
whichever came first.
XPN: As a measure of simple justice and
ordinary fairness to them, therefore, reckoning
just compensation on the value at the time the
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owners commenced these inverse
condemnation proceedings when:
1. Stealth is employed instead of complying
with the legal process of
expropriation. (National Power
Corporation v. Heirs of Macabangkit
Sangkay, G.R. No. 165828, 24 Aug. 2011)
2. There is no intention to pay the owners just
compensation. (National Power
Corporation v. Spouses Saludares, G.R. No.
189127, 25 Apr. 2012)
Q: The City of Iloilo (petitioner) represented by
Mayor Treñas filed a complaint for eminent
domain against Javellana seeking to expropriate
two parcels of land. Mayor Treñas filed a motion
for issuance of writ of possession alleging that it
had deposited 10% of the amount of
compensation. A writ of possession was
subsequently issued, and petitioner was able to
take physical possession of the properties.
Sixteen (16) years later, Javellana filed an ex
parte motion/manifestation, where he alleged
that when he sought to withdraw the money, he
discovered that no deposit was made.
Thereafter, Javellana filed a complaint for
recovery of possession, fixing and recovery of
rental and damages. The City of Iloilo argues
that Javellana could no longer bring an action
for recovery since the subject property was
already taken for public use. Javallena further
filed a motion that before a commission is
created, the trial court should first order the
condemnation of the property, in the
accordance with the rules of court. The RTC
denied this motion. The RTC further issued
three orders overturning its previous order for
the issuance of a writ of possession. The
petitioner argued that the trial court cannot
overturn its previous order issuing the writ of
possession because it was already final. Is the
order of expropriation final?
A: YES. An order of condemnation or dismissal is
final, resolving the question of whether or not the
plaintiff has properly and legally exercised its
power of eminent domain. Once the first order
becomes final and no appeal thereto is taken, the
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authority to expropriate and its public use can no
longer be questioned. Here, Javellana did not appeal
from the RTC’s order issuing the writ of possession.
Thus, it has become final, and the petitioner’s right
to expropriate the property for a public use is no
longer subject to review. (City of Iloilo v. Hon. Lolita
Contreras-Besana, G.R. No. 168967, 12 Feb. 2010)
Q: May Congress enact a law providing that a
5,000 square meter lot, a part of the UST
compound in Sampaloc Manila, be expropriated
for the construction of a park in honor of former
City Mayor Arsenio Lacson? As compensation to
UST, the City of Manila shall deliver its 5-hectare
lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall
employees. Explain. (2006 BAR)
A: YES, Congress may enact a law expropriating
property provided that it is for public use and with
just compensation. In this case, the construction of
a park is for public use (See: Sena v. Manila Railroad
Co, G.R. No. 15915, 07 Sept. 1921; Reyes v. NHA, G.R.
No. 147511, 24 Mar. 2003).
The planned compensation, however, is not legally
tenable as the determination of just compensation
is a judicial function. No statute, decree or executive
order can mandate that the determination of just
compensation by the executive or legislative
departments can prevail over the court’s findings
(Export Processing Zone Authority v. Dulay, G.R. No.
L-59603, 29 Apr. 1987; Secs. 5 to 8, Rule 67, ROC, as
amended).
In addition, compensation must be paid in money.
(Esteban v. Onorio, AM No. 00-4-166-RTC, 29 June
2001)
ENTRY OF PLAINTIFF
UPON DEPOSITING VALUE WITH
AUTHORIZED GOVERNMENT DEPOSITARY
Requisites in order that Plaintiff may be
Authorized to Immediately Enter into Property
under Rule 67
Upon the:
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1. Filing of complaint, serving notice to defendant
and after depositing the assessed value of
property for taxation purposes with the
authorized government depositary; (Sec. 2, Rule
67, ROC, as amended) and
2. Tender, or payment with legal interest from the
taking of possession of the property, of
compensation fixed by the judgment and
payment of costs by plaintiff. (Sec. 10, Rule 67,
ROC, as amended)
NOTE: Such deposit shall be in money, unless in lieu
thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the
Republic of the Philippines payable on demand to
the authorized government depositary.
If personal property is involved, its value shall be
provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court. (Sec.
2, Rule 67, ROC)
Once the preliminary deposit has been made, the
expropriator is entitled to a writ of possession as a
matter of right, and the issuance of said writ
becomes ministerial on the part of the trial court.
(Biglang-Awa v. Bacalla, G.R. Nos. 139927-36, 20 Nov.
2000) The defenses by the owner against immediate
possession can be considered during trial on the
merits. (NAPOCOR v. Jocson, G.R. Nos. 94193-99, 25
Feb. 1992)
Purposes of Preliminary Deposit
1. It serves as an advanced payment to the owner
of the property should the court decide in favor
of the plaintiff; and
2. It shall serve as indemnity against any damage
which the owner may have sustained. (Visayan
Refining Company v. Camus, G.R. No. 15870, 03
Dec. 1919)
NOTE: The preliminary deposit is only necessary if
the plaintiff desires entry on the land upon its
institution of the action. (Regalado, 2017)
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Defenses and Objections
1. If a defendant has any objection or defense to
the taking of his property:
a. He shall serve his answer. The answer shall
specifically designate or identify the
property in which he claims to have an
interest, state the nature and extent of the
interest claimed;
b. Thereafter, he shall be entitled to notice of
all proceedings affecting the same;
2. If there are no objections, he must file and serve
a notice of appearance and manifestation to
that effect. And thereafter, shall be entitled to
notice of all proceedings. (Sec. 3, Rule 67, ROC, as
amended)
Effect of Failure to File an Answer
The failure to file an answer does not produce all the
disastrous consequences of default in ordinary civil
actions, because the defendant may still present
evidence as to just compensation. (Robern
Development Corporation v. Quitain, G.R. No. 135042,
23 Sept. 1999)
Remedy of Defendant if Answer Omits Some
Defenses
If the answer omits some defenses, the remedy, in
order to prevent a waiver of those defenses not
alleged, is to seek leave to amend the answer within
10 days from the filing thereof. (Sec. 3, Rule 67, ROC,
as amended)
Duty of the Court if the Defendant Waives His
Defenses or Objections
If a defendant waives all defenses and objections not
so alleged, the court, in the interest of justice, may
permit amendments to the answer to be made not
later than 10 days from the filing thereof.
However, at the trial of the issue of just
compensation, whether a defendant has previously
appeared or answered, he may present evidence as
to the amount of the compensation to be paid for his
291
property, and he may share in the distribution of the
award. (Sec. 3, Rule 67, ROC, as amended)
Declaration of Default
The defendant cannot be declared in default.
However, failure to file an answer would not bar the
court from rendering judgment on the right to
expropriate, without prejudice to the defendant’s
right to present evidence on just compensation and
to share in the distribution of the award. (Sec. 3, Rule
67, ROC, as amended)
Effect of Non-Payment of Just Compensation
The non-payment of just compensation does not
entitle the private landowner to recover possession
of the expropriated lots, however, in cases where
the government failed to pay just
compensation within 5 years from the finality of the
judgment in the expropriation proceedings, the
owners concerned shall have the right to recover
possession of their property. This is in consonance
with the principle that the government cannot keep
the property and dishonor the judgment. (Republic
of the Philippines v. Lim, G.R. No. 161656, 29 June
2005)
2. ORDER OF EXPROPRIATION
An order of expropriation (or order of
condemnation) will be issued declaring that the
plaintiff has a lawful right to take the property.
It is issued when:
1. The objections to and the defenses against the
right of the plaintiff to expropriate the property
are overruled; and
2. No party appears to defend as required by this
Rule. (Sec. 4, Rule 67, ROC, as amended)
NOTE: After the rendition of such an order, the
plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as
the court deems just and equitable.
After the rendition of the order of expropriation, the
plaintiff shall not be permitted to dismiss or
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discontinue the proceeding except upon such terms
as the court deems just and equitable. (Sec. 4, Rule
67, ROC, as amended)
3. ASCERTAINMENT OF JUST COMPENSATION
Appointment of Commissioner
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to
ascertain and report to the court the just
compensation for the property sought to be taken.
The order of appointment shall designate the time
and place of the first session of the hearing to be
held by the commissioners and specify the time
within which their report shall be submitted to the
court. (Sec. 5, Rule 67, ROC, as amended)
NOTE: Objections to the order of appointment must
be filed within 10 days from service of the order and
shall be resolved within 30 days after all the
commissioners received the copies of the
objections. (Sec. 5, Rule 67, ROC, as amended)
Q: Ropa Development, Robinson Yao, and Jovito
Yao were owners of two parcels of a land. The
Republic filed a Complaint with the Regional
Trial Court of Bacolod City, seeking to
expropriate a total of 32 square meters from the
properties. The land was to be used for the
construction of two transmission towers for the
Northern Negros Geothermal Project. It prayed
for the immediate issuance of a writ of
possession. However, Ropa Development,
Robinson, and Jovito opposed this. They
admitted to most of the allegations in the
Complaint, but alleged that it "failed to show
that a number of fruit bearing trees were
planted on the property." Thus, considering the
nature and effects of the construction of
transmission towers, they claim that they
should be paid not only for the portion actually
expropriated, but for the entire property as
well. Moreover, they said that the towers' power
lines will "substantially limit their use of the
land." The Regional Trial Court issued a writ of
possession in favor of the Republic. The CA
rendered a Decision on the Petition for
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Certiorari, enjoining the enforcement and
implementation of the writ of possession. The
Supreme Court affirmed the ruling. The
Republic lodged an appeal, claiming that no
commissioners were appointed during the trial
in violation of the Rules of Court. Is the
Republic’s appeal meritorious?
A: YES. Gingoyon’s statement that the appointment
of commissioners may be resorted to, should not be
interpreted to mean that it was merely optional.
Such statement meant that the requirement by the
Rules of appointing commissioners did not
contradict Republic Act No. 8974 and was
permissible. There was no conflict in this regard, in
contrast with the patently different systems of
deposit and direct payment.
The Rules provide that the parties are given the
opportunity to introduce evidence before
commissioners, and that the commissioners are
empowered to “assess the consequential damages
to the property not taken.”
Indeed, Sec. 5(1) of Rule 67 requires the
appointment of commissioners in the
ascertainment of just compensation:
“SECTION 5. Ascertainment of compensation. –
Upon the rendition of the order of
expropriation, the court shall appoint not more
than three (3) competent and disinterested
persons as commissioners to ascertain and
report to the court the just compensation for
the property sought to be taken. The order of
appointment shall designate the time and place
of the first session of the hearing to be held by
the commissioners and specify the time within
which their report shall be submitted to the
court.”
The need to conduct proceedings before appointed
commissioners becomes more apparent, given the
necessity to compute for consequential damages.
(Republic v. Ropa Development Corp., G.R. No.
227614, 11 Jan. 2021)
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Mandatory Requirement of Appointing
Commissioner
Appointment of commissioners to ascertain just
compensation for the property sought to be taken is
a mandatory requirement in expropriation cases.
Where the principal issue is the determination of
just compensation, a hearing before the
commissioners is indispensable to allow the parties
to present evidence on the issue of just
compensation.
While it is true that the findings of commissioners
may be disregarded and the trial court may
substitute its own estimate of the value, the latter
may only do so for valid reasons, that is, where the
commissioners have applied illegal principles to the
evidence submitted to them, where they have
disregarded a clear preponderance of evidence, or
where the amount allowed is either grossly
inadequate or excessive. (National Power
Corporation v. De la Cruz, G.R. No. 156093, 02 Feb.
2007)
Just Compensation
Just compensation is defined as the full and fair
equivalent of the property sought to be
expropriated. The measure is not the taker’s gain
but the owner’s loss. The compensation, to be just,
must be fair not only to the owner but also to the
taker. Even as undervaluation would deprive the
owner of his property without due process, so too
would its overvaluation unduly favor him to the
prejudice of the public. (National Power Corporation
v. De la Cruz, G.R. No. 156093, 02 Feb. 2007)
Just compensation means not only the correct
determination of the amount to be paid but also the
payment of the land within a reasonable time from
its taking. (Landbank v. Obias, G.R. No. 184406, 14
Mar. 2012)
Authority of the Court in Determining Just
Compensation
Q: Expedite is one of the heirs of the registered
owner of 24.3990 hectares parcel of land in
Calabanga, Camarines Sur. The DAR placed
293
24.0467 of the said land under the Compulsory
Acquisition scheme pursuant to the
Comprehensive Agrarian Reform Law. Land
Bank made an initial valuation of the property at
P272,347.63 Respondent rejected petitioner's
valuation. The PARAD of Camarines Sur, after
conducting summary administrative
proceedings, fixed the just compensation at
P1,555.084. Petitioner elevated it to the DARAB,
which reinstated Land Bank’s valuation.
Respondent received the DARAB Decision on
May 7, 2008. Thereafter, on May 20, 2008,
respondent moved for the reconsideration of
the DARAB Decision, but the same was denied by
the DARAB in its October 18, 2008 Order, which
was received by respondent on December 16,
2008. Thereafter, on January 5, 2009,
respondent filed with the RTC-SAC a complaint
praying that the trial court fix the valuation of
the land at P1,681,199. Land Bank argued that
respondent had no cause of action to file an
action for determination of just compensation
with the RTC-SAC considering that the case is
already barred by prior judgment of the DARAB,
and that the complaint was filed out of time.
Whether respondent’s complaint shall be
dismissed for being filed out of time?
A: NO. Considering that the determination of just
compensation is a judicial function, the 15-day
prescriptive period under the DARAB Rules is void
as it unduly undermined and impeded the original
and exclusive jurisdiction of the RTCs to determine
just compensation in accordance with Section 57 of
RA 6657. The jurisdiction of the RTC-SAC in actions
for determination of just compensation is original
and exclusive, and not merely appellate. Thus, the
Court cannot recognize a procedural rule of the
DARAB that requires the court to adjudge as
dismissible an action for having been filed beyond
the 15-day period provided in the DARAB Rules. In
amending Section 17 of RA 6657, Congress provided
that the factors and the resulting basic formula,
shall be 'subject to the final decision of the proper
court.' Congress thus clearly conceded that the
courts have the power to look into the 'justness' of
the use of a formula to determine just
compensation, and the 'justness' of the factors and
their weights chosen to flow into it. (Land Bank of
the Philippines v. Escaro, G.R. No. 204526, 10 Feb.
2021, J. Hernando)
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How Court Determines Just Compensation
The trial court should first ascertain the market
value of the property, to which should be added the
consequential damages after deducting therefrom
the consequential benefits which may arise from the
expropriation. If the consequential benefits exceed
the consequential damages, these items should be
disregarded altogether as the basic value of the
property should be paid in every case. (Republic v.
CA, G.R. No. 160379, 14 Aug. 2009)
The market value of the property is the price that
may be agreed upon by parties willing but not
compelled to enter into the contract of sale. Not
unlikely, a buyer desperate to acquire a piece of
property would agree to pay more, and a seller in
urgent need of funds would agree to accept less,
than what it is actually worth. (Republic v. Heirs of
Sps. Bautista and Malabanan, G.R. No. 181218, 28 Jan.
2013)
NOTE: Among the factors to be considered in
arriving at the fair market value of the property are:
1. The cost of acquisition;
2. The current value of like properties;
3. Its actual or potential uses; and
4. In the particular case of lands, their size, shape,
location, and the tax declarations thereon.
(National Power Corporation v. Sps. De la Cruz,
G.R. No. 156093, 02 Feb. 2007)
Formula for the Determination of Just
Compensation
JC = FMV + CD – CB
If CB is more than CD, then
JC = FMV
JC – Just compensation
FMV – Fair market value
CD – Consequential damages
CB – Consequential benefits
NOTE: Sentimental value is NOT included.
Consequential Benefit
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2023 GOLDEN NOTES
It refers to actual benefits derived by the owner on
the remaining portion of his land which are the
direct and proximate results of the improvements
consequent to the expropriation, and not the
general benefits which he receives in common with
community. (Regalado, 2017)
Q: The Republic sought to acquire the
respondents’ private property in relation to the
construction of the North Luzon Expressway
(NLEX) - Harbor Link Project (Segment 9) from
NLEX to MacArthur Highway, Valenzuela City.
The Republic offered to purchase the subject
property for an amount based on its Zonal Value
i.e., P2,100.00 per square meter or P457,800.00.
The offer was rejected by the respondents.
Hence, the Republic filed an action for
expropriation. The RTC found that "based on the
evidence on records, specifically the current
zonal valuation issued by the BIR, it is clearly
established that the amount of P 2,100.00 per
square meter or the total amount of P
457,800.00 is a just compensation for the
subject property with an area of 218 square
meters. The Republic filed a Motion for Partial
Reconsideration arguing that the RTC
committed an error in imposing consequential
damages. Is the Republic required to pay
consequential damages?
A: NO. The sheer fact that there is a remaining
portion of real property after the expropriation is
not enough, by and of itself, to be basis for the award
of consequential damages. To be sure, it must still be
proven by sufficient evidence that the remaining
portion suffers from an impairment or decrease in
value. As borne out by a perusal of the subject TCT,
total area of the subject property is 380 sq. m. As
readily admitted by the Republic, however, the
affected area of the expropriation undertaken was
only “218 sq. m.” out of the total area of 380 sq. m.
A careful review of the records of the instant case
reveals that the RTC's award of consequential
damages is not supported by any evidence
establishing that the remaining 162 sq. m. of the
subject property suffered from any impairment or
decrease in value. Therefore, the award of
consequential damages must be deleted. (Republic
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V. SPECIAL CIVIL ACTIONS
of the Philippines v. Juliana San Miguel Vda. De
Ramos, Et. Al., G.R. No. 211576, 19 Feb. 2020)
Reckoning Point for Determining Just
Compensation
The value of just compensation shall be determined
as of the date of the taking of the property or the
filing of the complaint, whichever came first. (Sec. 4,
Rule 67, ROC, as amended)
GR: When the taking of the property sought to be
expropriated coincides with the commencement of
the expropriation proceedings, or takes place
subsequent to the filing of the complaint for
eminent domain, the just compensation should be
determined as of the date of the filing of the
complaint. (City of Iloilo v. Hon. Lolita Contreras-
Besana, G.R. No. 168967, 12 Feb. 2010)
XPNs:
1. Grave injustice to the property owner – Air
Transportation Office cannot conveniently
invoke the right of eminent domain to take
advantage of the ridiculously low value of the
property at the time of taking that it arbitrarily
chooses to the prejudice of the land owners,
(Heirs of Mateo Pidacan & Romana Eigo v. Air
Transportation Office, G.R. No. 162779, 15 June
2007)
2. The taking did not have color of legal
authority – To allow NAPOCOR to use the date
it constructed the tunnels as the date of
valuation would be grossly unfair. First, it did
not enter the land under warrant or color of
legal authority or with intent to expropriate the
same. It did not bother to notify the owners and
wrongly assumed it had the right to dig those
tunnels under their property. Secondly, the
“improvements” introduced by NAPOCOR, the
tunnels, in no way contributed to an increase in
the value of the land. The trial court rightly
computed the valuation of the property as of
1992, when the owners discovered the
construction of the huge underground tunnels
beneath their lands and NAPOCOR confirmed
the same and started negotiations for their
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purchase but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732, 29 June
2007)
3. The taking of the property was not initially
for expropriation – There was no taking of the
property in 1985 by Public Estates Authority
(PEA) for purposes of expropriation. As shown
by the records, PEA filed with the RTC its
petition for expropriation on September 22,
2003. The trial court was correct in ordering the
Republic, through PEA, upon the filing of its
complaint for expropriation, to pay Tan just
compensation on the basis of the BIR zonal
valuation of the subject property. (Tan v.
Republic, G.R. No. 170740, 25 May 2007)
4. The owner will be given undue increment
advantages because of the expropriation –
The value of the property in question was
greatly enhanced between the time when the
extension of the street was laid out and the date
when the condemnation proceedings were
filed. The owners of the land have no right to
recover damages for this unearned increment
resulting from the construction of the public
improvement for which the land was taken. To
permit them to do so would be to allow them to
recover more than the value of the land at the
time when it was taken, which is the true
measure of the damages, or just compensation,
and would discourage the construction of
important public improvements. (Provincial
Gov’t. of Rizal v. Caro de Araullo, G.R. No. L-
36096, 16 Aug. 1933)
NOTE: Under Sec. 19 of the Local Government Code,
the amount to be paid for the expropriation of the
expropriated property shall be determined based
on the fair market value at the time of the taking of
the property. (Riano, 2019)
Q: On 05 Sept. 1980, the Republic of the
Philippines (RP), through the OSG, filed a
Complaint for Expropriation before the CFI (now
RTC) of Dagupan City against respondents Jorge
Castillo (Jorge), Sofia Solis Achacoso (Sofia),
Alipio Fernandez, Sr. (Alipio), Emiliana
Fernandez, Casimera Fernandez, Concepcion
Fernandez, Benjamin Fernandez (Benjamin),
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Juana Galvan (Juana), Estela Corpuz Fernandez
(Estela) and Germana Suarez, who are co-
owners of the subject property located in
Dagupan City. The parties were ordered to file
their respective pre-trial briefs. However, only
petitioner RP filed a pre-trial brief on 18 Jan.
1989. Also, on 02 Feb. 1989, petitioner RP filed
an Amended Complaint alleging that the
Dagupan City National High School (the school)
has been in continuous possession of the subject
property since 1947 and that the market value
of the said properties during that time was 50
centavos per sqm. The RTC rendered its
Decision fixing the just compensation in the
amount of P15,000 per sqm which was the
current fair market value as of 02 Feb. 1989, that
is, the date of the filing of the Amended
Complaint. The CA agreed with the RTC that the
just compensation shall be determined based on
the value of the property on 02 Feb. 1989, which
is the date of the filing of the Amended
Complaint and not on the date of taking in 1947
which had not been proven. Which is the
reckoning date of the computation of just
compensation:
(a) date of taking in 1947;
(b) date of the filing of the original Complaint
in 1980; or
(c) date of filing of the Amended Complaint in
1989?
A: (b) DATE OF THE FILING OF THE ORIGINAL
COMPLAINT IN 1980. As correctly observed by the
CA, other than the testimonial evidence of Perla, no
other evidence was presented by the petitioner RP
to establish that the taking of the subject property
was in 1947. On the other hand, the evidence of the
respondents, that is, the tax declaration, clearly
shows that until the year 1990, they religiously paid
the real property tax of the subject property which
means that they were not dispossessed of the use
thereof. Thus, there is no error in the appreciation
of facts by the CA. As between the filing of the
original Complaint and Amended Complaint, we
rule that the computation of just compensation
should be reckoned from the time of the filing of the
original Complaint, that is, on 05 Sept. 1980.
Evidently, there was no actual taking in this case
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
prior to the filing of the Complaint, thus, the time of
taking should be reckoned from the filing of the
Complaint. Hence, the value of the property at the
time of filing of the original Complaint on 05 Sept.
1980, and not the filing of the Amended Complaint
in 1989, should be considered in determining the
just compensation due to the respondents. Since the
expropriation proceedings in this case was initiated
by petitioner RP on 05 Sept. 1980, property values
on such month and year should be the basis for the
proper determination of just compensation. With
the aforementioned principles in mind, the case
should be remanded to the lower court for the
proper determination of just compensation, that is,
the full and fair equivalent of the property taken
from its owner by the expropriator which simply
means the property's fair market value at the time
of the filing of the complaint, or "that sum of money
which a person desirous but not compelled to buy,
and an owner willing but not compelled to sell,
would agree on as a price to be given and received
therefor." (Republic v. Castillo, G.R. No. 190453, 20
Feb. 2020, J. Hernando)
Mere Deposit to the Bank does NOT Satisfy Just
Compensation
It is settled that the requirement of just
compensation is not satisfied by the mere deposit
with any accessible bank of the provisional
compensation determined, and its subsequent
release to the landowner after compliance with the
legal requirements set forth by RA 6657. What is
material is the fact that the landowner remains
unpaid notwithstanding the taking of the property.
(Philippine Veterans Bank v. Bases Conversion and
Development Authority, G.R. No. 217492, 04 Oct.
2021, J. Hernando)
Effect of Non-Payment of Just Compensation
Non-payment of just compensation does not entitle
the private landowner to recover possession of the
expropriated lots. However, in case where the
government failed to pay just compensation within
5 years from the finality of judgment in the
expropriation proceedings, the owners concerned
shall have the right to recover possession of their
property. (Republic v. Lim, G.R. No. 161656, 29 June
2005)
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V. SPECIAL CIVIL ACTIONS
NOTE: If the compensation is not paid when the
property is taken, but is postponed to a later date,
the interest awarded is actually part of just
compensation, which takes into account such delay.
(Benguet Consolidated v. Republic, G.R. No. 712412,
15 Aug. 1986)
PROCEEDINGS BY COMMISSIONER
Taking of Oath
Before entering upon the performance of their
duties, the commissioners shall take and subscribe
an oath that they will faithfully perform their duties
as commissioners, which oath shall be filed in court
with the other proceedings in the case. (Sec. 6, Rule
67, ROC, as amended)
Introduction of Evidence
Evidence may be introduced by either party before
the commissioners who are authorized to
administer oaths on hearings before them. (Sec. 6,
Rule 67, ROC, as amended)
Duties of Commissioners
The commissioners, unless the parties consent to
the contrary, after due notice to the parties, shall:
1. Attend, view and examine the property sought
to be expropriated and its surroundings;
2. Measure the same, after which either party
may, by himself or counsel, argue the case;
3. Assess the consequential damages to the
property not taken; and
4. Deduct from such consequential damages the
consequential benefits to be derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise by
the corporation or the carrying on of the
business of the corporation or person taking the
property.
NOTE: But in no case shall the consequential
benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the
actual value of his property so taken. (Sec. 6, Rule 67,
ROC, as amended)
297
Commissioner’s Report
As a rule, the commissioners shall make their report
within 60 days from the date they were notified of
their appointment. This period may be extended in
the discretion of the court.
Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties,
with notice that they are allowed 10 days within
which to file objections to the findings of the report,
if they so desire. (Sec. 7, Rule 67, ROC, as amended;
Riano, 2019)
The court may order the commissioners to report
when any particular portion of the real estate shall
have been passed upon by them, and may render
judgment upon such partial report, and direct the
commissioners to proceed with their work as to
subsequent portions of the property sought to be
expropriated, and may from time to time so deal
with such property. The commissioners shall make
a full and accurate report to the court of all their
proceedings, and such proceedings shall not be
effectual until the court shall have accepted their
report and rendered judgment in accordance with
their recommendations. (Sec. 7, Rule 67, ROC, as
amended)
Action upon Commissioner’s Report
Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before
the expiration of such period but after all the
interested parties have filed their objections to the
report or their statement of agreement therewith,
the court may, after hearing:
1. Accept the report and render judgment in
accordance therewith; or
2. For cause shown, it may recommit the same to
the commissioners for further report of facts;
or
3. Set aside the report and appoint new
commissioners, or
4. Accept the report in part and reject it in part;
and
5. It may make such order or render such
judgment as shall secure to the plaintiff of the
UNIVERSITY OF SANTO TOMAS
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property essential to the exercise of his right of
expropriation, and to the defendant just
compensation for the property so taken. (Sec.8,
Rule 67, ROC, as amended)
Uncertain Ownership
The trial court may decide conflicting claims of
ownership in the same case. There is no need for an
independent action since the person entitled
thereto will be adjudged in the same proceeding.
However, the court may order any sum(s) awarded
as compensation for the property to be paid to the
court for the benefit of the person that will be
adjudged as entitled thereto. (Sec. 9, Rule 67, ROC, as
amended)
4. RIGHTS OF PLAINTIFF
UPON JUDGMENT AND PAYMENT
After payment of just compensation, as determined
in the judgment, the plaintiff shall have the right to:
1. Enter upon the property expropriated and to
appropriate the same for the public use or
purpose defined in the judgment; or
2. To retain possession already previously made
in accordance with Sec. 2 (Entry of plaintiff
upon depositing value with authorized
government depositary). (Sec. 10, Rule 67, ROC,
as amended)
When Defendant Declines to Receive the
Amount Tendered
If the defendant and his counsel absent themselves
from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited
in court and such deposit shall have the same effect
as actual payment thereof to the defendant or the
person ultimately adjudged entitled thereto. (Sec.
10, Rule 67, ROC, as amended)
NOTE: The payment shall involve the amount fixed
in the judgment and shall include legal interest from
the taking of possession of the property. (Sec. 10,
Rule 67, ROC, as amended)
Effect of Reversal
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2023 GOLDEN NOTES
If on appeal the appellate court determines that the
plaintiff has no right of expropriation, judgment
shall be rendered ordering the Regional Trial Court
to enforce the restoration to the defendant of the
possession of the property, and to determine the
damages which the defendant sustained and may
recover by reason of the possession taken by the
plaintiff. (Sec. 11, Rule 67, ROC, as amended)
Appeal
The order of expropriation may be appealed by the
defendant by record on appeal. This is an instance
when multiple appeals are allowed because they
have separate and/or several judgments on
different issues, e.g., issue on the right to
expropriate or issue of just compensation.
An appeal does not delay the right of the plaintiff to
enter upon the property of the defendant and
appropriate the same for public use. (Sec. 11, Rule
67, ROC, as amended) An appeal from judgment shall
not prevent the court from determining the just
compensation to be paid. (Sec. 4, Rule 67, ROC, as
amended)
Multiple Appeals
Appeal must be made 30 days from the receipt of the
order as the proceedings in expropriation involve
multiple appeals.
Costs, by whom Paid
GR: All costs shall be paid by the plaintiff.
XPNs:
1. Those of rival claimants litigating their claims;
or
2. An appeal taken by the owner of the property
and if the judgment is affirmed, in which event
the costs of the appeal shall be paid by the
owner.
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V. SPECIAL CIVIL ACTIONS
NOTE: Fees of commissioners shall be taxed as part
of the costs of proceedings.
RECORDING JUDGMENT AND ITS EFFECT
The Judgment shall state:
1. An adequate description of the particular
property or interest therein expropriated; and
2. Nature of the public use or purpose for which
it is expropriated.
NOTE: When real estate is expropriated, a certified
copy of such judgment shall be recorded in the
registry of deeds of the place in which the property
is situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
such public use or purpose. (Sec. 13, Rule 67, ROC, as
amended)
Discretionary Execution; does not apply in
Expropriation
The funds cannot be garnished and its properties,
being government properties, cannot be levied via a
writ of execution pursuant to a final judgment, then
the trial court likewise cannot grant discretionary
execution pending appeal, as it would run afoul of
the established jurisprudence that government
properties are exempt from execution. (NPC v. Heirs
of Rabie, G.R. No. 210218, 17 Aug. 2016)
Power of Guardian in such Proceedings
The guardian or guardian ad litem of a minor or of a
person judicially declared to be incompetent may,
with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or
thing respecting the expropriation for public use or
purpose of property belonging to such minor or
person judicially declared to be incompetent, which
such minor or person judicially declared to be
incompetent could do in such proceedings if he
were of age or competent. (Sec. 14, Rule 67, ROC, as
amended)
299
WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY,
IN RELATION TO R.A. NO. 10752
(THE RIGHT-OF-WAY ACT)
Under R.A. No. 10752, whenever it is necessary to
acquire real property for the right-of-way or
location for any national government infrastructure
project through expropriation, the appropriate
implementing agency, through the Office of the
Solicitor General, the Office of the Government
Corporate Counsel, or their deputize government or
private legal counsel, shall initiate the expropriation
proceedings before the proper court under the
following guidelines:
1. Upon the filing of the complaint, and after due
notice to the defendant, the implementing
agency shall immediately pay the owner of the
property the amount equivalent to the sum of
100% of the value of the property based on the
current relevant zonal valuation of the BIR
issued not more than 3 years prior to the filing
of the expropriation complaint, the
replacement cost at current market, and the
value of the improvements and/or structures,
the current market value of crops and trees
located within the property;
2. In case the owner of the property cannot be
found, if unknown, or deceased in cases where
the estate has not been settled, after exerting
due diligence, or there are conflicting claims
over the ownership of the property and
improvements and structures thereon, the
implementing agency shall deposit the amount
equivalent to the sum provided for in the
preceding number;
3. In provinces, cities, municipalities, and other
areas where there is no land classification, the
city or municipal assessor is hereby mandated,
within the period of 60 days from the date of
filing of the expropriation case, to come up with
the required land classification and the
corresponding declaration of real property and
improvement for the area. In provinces, cities,
municipalities and other areas where there is
no zonal valuation, the BIR is hereby mandated
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valuation of the Bureau of Internal
Revenue (BIR); and
2. the value of the improvements
and/or structures as determined
under Section 7;
b. In provinces, cities, municipalities and
other areas where there is no zonal
valuation, the BIR is hereby mandated
within the period of sixty (60) days from
the date of the expropriation case, to come
up with a zonal valuation for said area; and
c. In case the completion of a government
infrastructure project is of utmost urgency
and importance, and there is no existing
valuation of the area concerned, the
implementing agency shall immediately
pay the owner of the property its proffered
value taking into consideration the
standards prescribed in Section 5 hereof.
d. The current selling price of similar lands in
the vicinity;
e. The reasonable disturbance compensation
for the removal and/or demolition of
certain improvement on the land and for
the value of improvements thereon;
f. This size, shape or location, tax declaration
and zonal valuation of the land;
g. The price of the land as manifested in the
ocular findings, oral as well as
documentary evidence presented; and
h. Such facts and events as to enable the
affected property owners to have sufficient
funds to acquire similarly-situated lands of
approximate areas as those required from
them by the government, and thereby
rehabilitate themselves as early as possible.
Factors to Consider in Facilitating the
Determination of Just Compensation

Upon compliance with the guidelines 1.
abovementioned, the court shall immediately issue
to the implementing agency an order to take
2.
possession of the property and start the
implementation of the project.
3.
Before the court can issue a Writ of Possession, the 4.
implementing agency shall present to the court a
certificate of availability of funds from the proper 5.
official concerned.
In the event that the owner of the property contests
the implementing agency’s proffered value, the
6.
court shall determine the just compensation to be
paid the owner within sixty (60) days from the date
of filing of the expropriation case. When the 7.
decision of the court becomes final and executory,
the implementing agency shall pay the owner the
difference between the amount already paid and the 8.
just compensation as determined by the court.
Sec. 5, R.A. No. 8974
In order to facilitate the determination of just
compensation, the court may consider, among other
well-established factors, the following relevant
standards:
The classification and use for which the
property is suited;
The developmental costs for improving the
land;
The value declared by the owners;
The current selling price of similar lands in the
vicinity;
The reasonable disturbance compensation for
the removal and/or demolition of certain
improvement on the land and for the value of
improvements thereon;
This size, shape or location, tax declaration and
zonal valuation of the land;
The price of the land as manifested in the ocular
findings, oral as well as documentary evidence
presented; and
Such facts and events as to enable the affected
property owners to have sufficient funds to
acquire similarly situated lands of approximate
areas as those required from them by the
government, and thereby rehabilitate
themselves as early as possible.

a. The classification and use for which the

property is suited;
b. The developmental costs for improving the
land;
c. The value declared by the owners;

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number of properties. The venue is where the
mortgaged property is located. (Aquino, 2021)
Notice and Publication
1. Posting of notices of sale in three public places;
2. Publication of the notice of sale in a newspaper
of general circulation.
NOTE: Without compliance to the formal
requirements of posting and publication, the
sale is null and void. The mortgagor may be
barred by estoppel or laches from claiming that
the requirements have not been complied with.
Posting in three public places doesn’t mean to
be in the place where the property is. If the
original date of the sale has been moved, the
requirements of notice and publication should
be done again, otherwise, the sale shall be
invalid.
Personal notice to the mortgagor-debtor is not
necessary for the validity of the extrajudicial
foreclosure proceedings, unless there is a
stipulation in the mortgage contract for the
same.
Notice is for the bidders and to prevent a
sacrifice of the property. There is no
requirement for the appraisal value, nor for
minimum bidding prices. (Riano, 2019)
FORECLOSURE PROCEEDINGS
Complaint in action for Foreclosure; Defendants
that must be joined
1. The persons obligated to pay the mortgage
debt;
2. The persons who own, occupy or control the
mortgaged premises;
3. The transferee or grantee of the property; and
4. The second mortgagee or junior encumbrancer,
or any person claiming a right or interest in the
property subordinate to the mortgage sought to
be foreclosed; but if the action is by the junior
encumbrancer, the first mortgagee may also be
joined as defendant. (Regalado, 2012 2017)
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NOTE: If the action is brought by the junior
encumbrancer, the first mortgagee or the senior one
need not be joined. A property is taken subject to the
first lien. What is now required by law is to implead
the junior mortgagee.
Judgment on Foreclosure for Payment or Sale
It is the judgment of the court ordering the debtor
to pay within a period not less than 90 days nor
more than 120 days from the entry of judgment
after ascertaining the amount due to the plaintiff. In
default of such payment the property shall be sold
at publication to satisfy judgment. (Sec. 2, Rule 68,
ROC, as amended)
Remedy of Debtor if Foreclosure is not proper
The judgment of the court is considered a final
adjudication of the case and hence, is subject to
challenge by the aggrieved party by appeal or by
other post judgment remedies. (Riano, 2019)
NOTE: The period given is not merely a procedural
requirement, it is a substantive right given to the
mortgage debtor as the last opportunity to pay the
debt and save his mortgaged property from final
disposition at the foreclosure sale.
Remedy of Debtor; Extrajudicial Foreclosure
The debtor may, in the proceedings in which
possession was requested, but not later than thirty
days after the purchaser was given possession,
petition that the sale be set aside and the writ of
possession cancelled, specifying the damages
suffered by him, because the mortgage was not
violated or the sale was not made in accordance
with the provisions hereof, and the court shall take
cognizance of this petition in accordance with the
summary procedure. (Sec. 8, Act No. 3135)
Sale of Mortgaged Property; Effect
If the mortgagor fails to pay the sum due within the
period (90-120 days) stated by the court in its
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judgment, upon motion of the mortgagee, the court
shall order the property to be sold in the manner
and under the provisions of Rule 39 and other
regulations governing sales of real estate under
execution. (Sec. 3, Rule 68, ROC, as amended)
The purchaser in a foreclosure sale is entitled to a
writ of possession and that, upon an ex parte motion
of the purchaser, it is ministerial upon the court to
issue writ of possession in his favor. He is not
required to bring a separate action for possession
after the redemption period has expired.
However, where the parties in possession claim
ownership thereof and, if there is some plausibility
in their claim, issue must first be ventilated in a
proper hearing of the merits thereof. (Regalado,
2017)
Notice of Sale
It is a well-settled rule that statutory provisions
governing publication of notice of mortgage
foreclosure sales must be strictly complied with and
that even slight deviations therefrom will invalidate
the notice. This is to inform the public of the nature
and condition of the property to be sold, and of the
time, place and terms of the sale. (Riano, 2019)
NOTE: The mortgagor is entitled to a notice of
hearing of the confirmation of the sale; otherwise,
the order is void. Due process requires that said
notice be given so that the mortgagor can resist the
motion and be informed that his right to redeem is
cut-off. (Tiglao v. Botones, G.R. No. L-3619, 29 Oct.
1951) The order of confirmation is appealable.
Effect of Order of Confirmation
It shall operate to divest the rights in the property
of all the parties to the action and to vest their rights
in the purchaser, subject to such rights of
redemption as may be allowed by law. (Sec. 3, Rule
68, ROC, as amended)
It is said that title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of
the sale. (Binalgan Estate v. Gatuslao, 74 Phil 128, 26
Feb. 1943; Riano, 2019)
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Remedy if the Mortgagor Refuses to Vacate
The purchaser may secure a writ of possession,
upon motion, from the court which ordered the
foreclosure unless a third party is actually holding
the same adversely to the judgment obligor. (Sec. 3,
Rule 68, ROC, as amended)
Q: Anita Marquez extended a loan to a certain
Benjamin Gutierrez which was secured by a real
estate mortgage over a parcel of land. Since
Gutierrez defaulted in payment, Anita sought
the extra-judicial foreclosure of the subject
property. Upon Gutierrez’s failure to redeem the
property within the prescribed period, the title
was consolidated in the name of Spouses
Marquez, which, however, bore an annotation of
adverse claim in the names of Spouses Alindog.
Spouses Alindog sought for the annulment of the
real estate mortgage and claimed that they have
purchased the property way back. Meanwhile,
Anita filed an ex-parte petition for the issuance
of a writ of possession over the property
claiming that it is ministerial on the part of the
court following the consolidation of their title
over the property. This was granted and the
Spouses Alindog were served notice to vacate.
Thereafter, RTC appreciated the initial evidence
adduced by Sps. Alindog, concluding that they
appear to have a right to be protected. Thus,
notwithstanding the consolidation of Sps.
Marquez’s title over the subject property, the
RTC granted Sps. Alindog’s prayer for injunctive
relief, holding that any further dispossession on
their part would cause them irreparable injury.
This was affirmed by the CA. Is the grant of
injunctive relief correct?
A: NO. It is an established rule that the purchaser in
an extra-judicial foreclosure sale is entitled to the
possession of the property and can demand that he
be placed in possession of the same either during
(with bond) or after the expiration (without bond)
of the redemption period therefor. The issuance of a
writ of possession to a purchaser in a public auction
is a ministerial act. That said, the RTC therefore
gravely abused its discretion when it issued the
injunctive writ which enjoined Sps. Marquez from
taking possession of the subject property. To be
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sure, grave abuse of discretion arises when a lower
court or tribunal patently violates the Constitution,
the law or existing jurisprudence. Here, while the
RTC had initially issued a writ of possession in favor
of Sps. Marquez, it defied existing jurisprudence
when it effectively rescinded the said writ by
subsequently granting Sps. Alindog's prayer for
injunctive relief. The RTC's finding anent the initial
evidence adduced by Sps. Alindog constitutes
improper basis to justify the issuance of the writ of
preliminary injunction in their favor since, in the
first place, it had no authority to exercise any
discretion in this respect. (Sps. Marquez v. Spouses
Alindog, G.R. No. 184045, 22 Jan. 2014)
Disposition of Proceeds of Sale
1. The proceeds of the sale of the mortgaged
property shall, after deducting the costs of the
sale, be paid to the person foreclosing the
mortgage;
2. When there is any balance or residue after
paying off the mortgage debt due, the same shall
be paid to junior encumbrances in the order of
their priority.
3. If there be any further balance after paying
them or if there be no junior encumbrances, the
same shall be paid to the mortgagor or any
person entitled thereto. (Sec. 4, Rule 68, ROC, as
amended)
How Sale Proceeds in case the Debt is not at all
due
If the debt for which the mortgage or encumbrance
was held is not all due as provided in the judgment,
as soon as a sufficient portion of the property has
been sold to pay the total amount and the costs due,
the sale shall terminate; and afterwards, as often as
more becomes due for principal or interest and
other valid charges, the court may, on motion, order
more to be sold.
But if the property cannot be sold in portions
without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the
entire debt and costs shall be paid, if the proceeds of
307
the sale be sufficient therefor, there being a rebate
of interest where such rebate is proper. (Sec. 5, Rule
68, ROC)
As soon as the sufficient portion of the property has
been sold to pay the total amount that is due and the
cost thereon, the sale shall terminate because the
interest of the judgment debtor shall also be
protected.
Deficiency Judgment
It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the
mortgagee if the proceeds from the foreclosure sale
do not satisfy the entire debt.
Recovery of Deficiency
If there is a balance due to the plaintiff after
applying the proceeds of the sale, the court, upon
motion, shall render judgment against the
defendant for any balance for which, by the record
of the case, he may be personally liable to the
plaintiff. Execution may issue immediately if the
balance is all due at the time of the rendition of the
judgment. If not due, the plaintiff shall be entitled to
execution at such time as the balance remaining
becomes due under the terms of the original
contract, which time shall be stated in the judgment.
(Sec. 6, Rule 68, ROC, as amended; Riano 2019)
NOTE: No independent action need be filed to
recover the deficiency from the defendant. The
judgement shall be rendered upon motion of the
mortgagee in the same action. The deficiency
judgement can be the subject of appeal.
Liability of a 3rd Party Mortgagor in case of
Deficiency Judgment
If such third person did not assume personal
liability for the payment of the debt, the extent of
recovery in the judgment of foreclosure shall be
limited to the purchase price at the foreclosure sale
and no deficiency judgment can be recovered
against said person. (Phil. Trust Co. v. Tan Suisa, 52
Phil 852, 28 Feb. 1943)
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Deficiency Judgment, Immediately Executory
The deficiency judgment is immediately executory if
the balance is all due. If a third person merely
executed a mortgage and did not personally assume
the personal liability of the debt, the third-party
liability is only up to the extent of the mortgage.
There can be no sufficient judgment against the
third party.
Extrajudicial Foreclosure; not Res Judicata
In extrajudicial foreclosures under Act No. 3135,
there is no deficiency judgment because the
extrajudicial foreclosure is not a judicial procedure.
However, the mortgagee can recover by action any
deficiency in the mortgage account which was not
realized in the foreclosure sale. This will not violate
the res judicata rule because the petition for
extrajudicial foreclosure is not an action in court.
Instances when Court cannot Render Deficiency
Judgment
1. Case is covered by the Recto Law (Art. 1484,
NCC);
2. Mortgagor is a non-resident and who at the
time of the filing of the action for foreclosure
and during the pendency of the proceedings
was outside the Philippines, unless there is
attachment;
3. Mortgagor dies, the mortgagee may file his
claim with the probate court under Sec. 7, Rule
86; and
4. Mortgagee is a third person but not solidarily
liable with the debtor.
Q: Arlene borrowed P1 million from GAP Bank
(GAP) secured by the titled land of her friend
Gretchen who, however, did not assume
personal liability for the loan. Arlene defaulted
and GAP filed an action for judicial foreclosure
of the real estate mortgage impleading Arlene
and Gretchen as defendants. The court rendered
judgment directing Arlene to pay the
outstanding account of P1.5 million (principal
plus interest) to GAP. No appeal was taken by
Arlene. Arlene failed to pay the judgment debt
within the period specified in the decision. At
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the foreclosure sale, the land was sold to GAP for
P1.2 million. The sale was confirmed by the
court, and the confirmation of the sale was
registered with the Registry of Deeds on January
5, 2002.
On January 10, 2003, GAP filed an ex-parte
motion with the court for the issuance of a writ
of possession to oust Gretchen from the land. It
also filed a deficiency claim for P800,000 against
Arlene and Gretchen. The deficiency claim was
opposed by Arlene and Gretchen.
a. Resolve the motion for the issuance of a writ
of possession.
A: In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has been
sold on foreclosure has the right to redeem the
property within 1 year after the sale (or registration
of the sale). However, under Sec. 47 of the General
Banking Law of 2000, the purchaser at the auction
sale has the right to obtain a writ of possession after
the finality of the order confirming sale. The motion
for writ of possession, however, cannot be filed ex
parte. There must be a notice of hearing.
b. Resolve the deficiency claim of the bank.
(2003 BAR)
A: The deficiency claim of the bank may be enforced
against the mortgage debtor Arlene, but it cannot be
enforced against Gretchen, the owner of the
mortgaged property, who did not assume personal
liability of the loan.
Q: Is the buyer in the auction sale arising from
an extra-judicial foreclosure entitled to a writ of
possession even before the expiration of the
redemption period? If so, what is the action to be
taken?
A: YES. The buyer in the auction sale is entitled to a
writ of possession even before the expiration of the
redemption period upon the filing of the ex parte
petition for issuance of a writ of possession and
posting of the appropriate bond. Under section 7 of
Act No. 3135, as amended, the writ of possession
may be issued to the purchaser in a foreclosure sale
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either within the one-year redemption period upon
the filing of a bond, or after the lapse of the
redemption period, without need of a bond. (LZK
Holdings and Development Corporation v. Planters
Development Bank, G.R. No. 167998, 27 Apr. 2007)
Stated otherwise, Section 7 of Act No. 3135, as
amended, also refers to a situation wherein the
purchaser seeks possession of the foreclosed
property during the 12-month period for
redemption. Hence, upon the purchaser’s filing of
the ex parte petition and posting of the appropriate
bond, the RTC shall, as a matter of course, order the
issuance of the writ of possession in favour of the
purchaser. (Sps. Nicasio C. Marquez and Anita J.
Marquez v. Sps. Carlito Alindog and Carmen Alindog,
G.R. No. 184045, 22 Jan. 2014; Sps. Jose Gatuslao and
Ermila Gatuslao v. Leo Ray Yanson, G.R. No. 191540,
21 Jan. 2015)
Q: After the period of redemption has lapsed and
the title to the lot is consolidated in the name of
the auction buyer, is he entitled to the writ of
possession as a matter of right? If so, what is the
action to be take?
A: YES. The auction buyer is entitled to a writ of
possession as a matter of right. It is settled that the
buyer in a foreclosure sale becomes the absolute
owner of the property purchased if it is not
redeemed within a period of one year after the
registration of the certificate of sale. He is, therefore,
entitled to the possession of the property and can
demand it at any time following the consolidation of
ownership in his name and the issuance to him of a
new transfer certificate of title. In such a case, the
bond required in Section 7 of Act No. 3135 is no
longer necessary. Possession of the land then
becomes an absolute right of the purchases as
confirmed owner. Upon proper application and
proof of title, the issuance of the writ of possession
becomes a ministerial duty of the court. (LZK
Holdings and Development Corporation v. Planters
Development Bank, G.R. No. 167998, 27 Apr. 2007;
Sps. Marquez v. Sps. Alindog, G.R. No. 184045, 22 Jan.
2014; Sps. Gatuslao v. Leo Ray Yanson, G.R. No.
191540, 21 Jan. 2015)
309
Q: Suppose that after the title to the lot has been
consolidated in the name of the auction buyer,
said buyer sold the lot to a third party without
first getting a writ of possession. Can the
transferee exercise the right of the auction
buyer and claim that it is a ministerial duty of
the court to issue a writ of possession in his
favor? Briefly explain. (2016 BAR)
A: YES. The transferee can exercise the right of the
auction buyer. A transferee or successor-in-interest
of the auction buyer by virtue of the contract of sale
between them, is considered to have stepped into
the shoes of the auction buyer. As such, the
transferee is necessarily entitled to avail of the
provisions of Sec. 7 of Act No. 3135, as amended, as
if he is the auction buyer. (Sps. Gatuslao v. Yanson,
ibid.)
When the lot purchased at a foreclosure sale is in
turn sold or transferred, the right to the possession
thereof, along with all other rights of ownership,
transfers to its new owner. (Sps. Gallent v. Velasquez,
G.R. No. 203949, 06 Apr. 2016) Ergo, it is a ministerial
duty of the court to issue a writ of possession in
favor of the transferee of the auction buyer.
REGISTRATION
The buyer acquires title upon finality of the
confirmation sale. The certificate of sale cannot be
registered without the final order confirming the
sale. (Sec. 7, Rule 68, ROC, as amended)
Existence and Absence of Right of Redemption
1. When no right of redemption exists: the
certificate of title in the name of the mortgagor
shall be cancelled, and a new one issued in the
name of the purchaser.
2. When right of redemption exists: the
certificate of title in the name of the mortgagor
shall not be cancelled, but the certificate of sale
and the order confirming the sale shall be
registered and a brief memorandum thereof
made by the register of deeds upon the
certificate of title.
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judgment or even after property is sold to taxes thereon, if any, paid by the purchaser with
the foreclosure sale redeem the property the same rate of interest computed from the
but prior to within 1 year from the date of registration of the sale;
confirmation. registration of the
Sheriff’s certificate of 3. Written notice of the redemption must be
foreclosure sale. served on the officer who made the sale and a
Governed by Secs. 29- duplicate filed with the proper Register of
Governed by Rule 68.
31, Rule 39. Deeds; (Rosales v. Yboa, G.R. No. L-42282, 28 Feb.
1983) and
Who may redeem
4. Tender of payment within the prescribed
1. Mortgagor or one in privity of title with the period to make the redemption for future
mortgagor; or enforcement. (Sec. 26, Act No. 3135; Sec. 8, Rule
2. Successors-in-interest under Sec. 29, Rule 39, 39, ROC, as amended)
ROC.

Amount of Redemption Price NOTE: The filing of a court action to enforce

1. When mortgagee is not a bank
a. Purchase price of the property;
b. 1% interest per month on the purchase
price from the date of registration of the
certificate up to the time of redemption;
c. Necessary expenses incurred by the
purchase for the improvements made by
him to preserve the property during the
period of redemption; and
d. Taxes paid and amount of purchaser’s prior
lien, if any, with the same rate of interest
computed from the date of registration of
sale, up to the time of redemption.
2. When mortgagee is a bank (Sec. 47, General
Banking Law, 2000):
a. Amount fixed by the court or amount due
under the mortgage deed;
b. Interest; and
c. Cost and expenses.
redemption, being equivalent to a formal offer to
redeem, would have the effect of “freezing” the
expiration of the one-year period. (Heirs of
Quisumbing v. PNB, G.R. No. 178242, 20 Jan. 2009)
Period of Redemption
1. Extrajudicial Foreclosure
a. Natural Person – one (1) year from
registration of the certificate of sale with
the Registry of Deeds.
NOTE: The statutory period of redemption
is only directory and can be extended by
agreement of the parties provided:
i. The agreement to extend is
voluntary; and
ii. The debtor commits to pay the
redemption price on a fixed date.
(Gojudo v. Traders Royal Bank, G.R.
No. 151098, 21 Mar. 2006)

Requisites for valid Right of Redemption:
1. Must be made within twelve (12) months from
the time of the registration of the sale in the
Office of the Registry of Property;
2. Payment of the purchase price of the property
plus 1% interest per month together with the
b. Juridical Person – same rule as natural
person.
c. Juridical Person (mortgagor) and Bank
(mortgagee) – three (3) months after
foreclosure or before registration of
certificate of foreclosure whichever is
earlier. (Sec. 47, R.A. No. 8791)

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2. Judicial Foreclosure – within the period of 90-
120 days from the date of the service of the
order of foreclosure or even thereafter but
before the order of the confirmation of the sale.
(Secs. 2&3, Rule 28, ROC)
NOTE: Allowing redemption after the lapse of
the statutory period, when the buyer at the
foreclosure sale does not object but even
consents to the redemption, will uphold the
policy of the law which is to aid rather than
defeat the right of redemption (Ramirez v. CA,
G.R. No. 98147, 05 Mar. 1993)
3. THE GENERAL BANKING LAW OF 2000
(Sec. 47, R.A. No. 8791)
GR: Redemption period is one year from
registration of the certificate of sale.
XPN: Section 47 of the General Banking Law:
a. Juridical persons are allowed to exercise the
right of redemption until the registration, and
in no case more than three months after the
foreclosure sale, whichever comes first.
b. Section 47 did not divest juridical persons of
the right to redeem their foreclosed
properties but only modified the time for the
exercise of such right by reducing the one
provided for in R.A. No. 3135.
By an amendment by the General Banking Law of
2000, juridical mortgagors like partnerships and
corporations are barred from the right of
redemption of mortgaged property sold pursuant to
an extrajudicial foreclosure, after the registration of
the certificate of foreclosure with the applicable
Register of Deeds.
For purposes of reckoning the one-year redemption
period in case of individual mortgagors, or the
three-month reckoning period for juridical
persons/mortgagors the same shall be reckoned
from the date of confirmation of the auction sale
which is the date when the certificate of title is
issued. (BIR RMC No. 15-2008, 15 Aug. 2008)
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Period of Redemption is not a Prescriptive
Period
The period of redemption is not a prescriptive
period but a condition precedent provided by law to
restrict the right of the person exercising
redemption.
If a person exercising the right of redemption has
offered to redeem the property within the period
fixed, he is considered to have complied with the
condition precedent prescribed by law and may
thereafter bring an action to enforce redemption. If,
on the other hand, the period is allowed to lapse
before the right of redemption is exercised, then the
action to enforce redemption will not prosper, even
if the action is brought within the ordinary
prescriptive period. (Sps. Maximo Landrito vs. CA,
G.R. No. 133079, 09 Aug. 2005)
Effect of Failure to Redeem
Act No. 3135 provides that if the mortgagor or
successors-in-interest failed to redeem within the
redemption period, the title over the property
consolidates in the purchaser. The consolidation
confirms the purchaser as the owner entitled to the
possession of the property. The mortgagor, by
failing to redeem loses all interest in the property.
(United Coconut Planters Bank v. Lumbo, G.R. No.
162757, 11 Dec. 2013)
Writ of Possession; Possession by Purchaser of
Foreclosed Property
GR: Upon the finality of the order of confirmation of
sale or upon the expiration of the period of
redemption allowed by law, the purchaser at the
auction sale or the last redemptioner, if any, shall be
entitled to the possession of the property.
XPN: A third party is actually holding the same
adversely to the judgment debtor. If so, the writ of
possession will not issue as a matter of course.
Ministerial Duty of the Court
The purchaser in a foreclosure sale is entitled to a
writ of possession upon the finality of the order of
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confirmation or expiration of the period of
redemption. That upon an ex parte motion of the
purchaser, it is the ministerial duty of the court to
issue the writ of possession unless a person is
occupying the property adverse to the interest of
the judgment debtor.
Therefore, the purchaser need not file a separate
action for possession to acquire possession of the
property after the redemption period has expired.
However, where the parties in possession claim
ownership thereof, and there may be possibility of
said claim, the issue of ownership must be
ventilated in a proper case in the merits. (Sps. Kho v.
VA, G.R. No. L-83498, 22 Oct. 1991)
Enforcement against Third Persons
If the purchaser is a third party who acquired the
property after the redemption period, a hearing
must be conducted to determine whether
possession over the subject property is still with the
mortgagor or is already in the possession of a third
party holding the same adversely to the defaulting
debtor or mortgagor. If the property is in the
possession of the mortgagor, a writ of possession
could thus be issued. Otherwise, the remedy of a
writ of possession is no longer available to such
purchaser, but he can wrest possession over the
property through an ordinary action of ejectment.
(Okabe v. Saturnino, G.R. No. 196040, 26 Aug. 2014)
Pendency of action for Annulment of Sale
Any question regarding the validity of the mortgage
or its foreclosure cannot be a legal ground for
refusing the issuance of a writ of execution. The
right of the purchaser to have possession of the
subject property would not be defeated
notwithstanding the pendency of a civil case seeking
the annulment of the mortgage or of the
extrajudicial foreclosure. (De Vera v. Agloro, G.R. No.
155673, 14 Jan. 2005)
When Writ of Possession NOT Available:
1. Where mortgaged property under lease
previously registered in the Registry of
Property or despite non-registration, the
313
mortgagee has prior knowledge of the existence
and duration of the lease; (Ibasco v. Caguioa,
G.R. No. L62619, 19, Aug. 1986)
2. Where the mortgagor refuses to surrender
property sold. The remedy is to file an ordinary
action for the recovery of possession in order
that the mortgagor may be given opportunity to
be heard; and
3. When third party is in actual possession
adverse to the judgment debtor. (Sec. 36, Rule
39, ROC, as amended; Sec. 6, Act No. 3135)
Possession in Extrajudicial Foreclosure
The purchaser may petition the Court of First
Instance of the province or place where the
property or any part thereof is situated, to give him
possession thereof during the redemption period,
furnishing bond in an amount equivalent to the use
of the property for a period of twelve months, to
indemnify the debtor in case it be shown that the
sale was made without violating the mortgage or
without complying with the requirements of Act No.
3135. (Sec. 7, Act. No. 3135)
Petition for Annulment of Foreclosure
Proceedings
This petition contests the presumed right of
ownership of the buyer in a foreclosure sale and
puts in issue such presumed right of ownership
while an ex parte petition for issuance of a writ of
possession is a non-litigious proceeding.
Filing of a petition for nullification of foreclosure
proceedings with motion for consolidation is not
allowed as it will render nugatory the presumed
right of ownership, as well as the right of
possession, of a buyer in a foreclosure sale.
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H. PARTITION
(RULE 69)
It is a process of dividing and assigning property
owned in common among the various co-owners
thereof in proportion to their respective interests in
said property.
NOTE: It is commenced by a complaint. (Sec. 1, Rule
69)
The determination as to the existence of co-
ownership is necessary in the resolution of an
action for partition. (Lacbayan v. Samoy, G.R. No.
165427, March 21, 2011) An action for partition will
not lie if the claimant has no rightful interest in the
property. (Co Guik Lun v. Co, G.R. No. 184454, 03 Aug.
2011)
Nature of Partition
Partition and accounting under Rule 69 is in the
nature of an action quasi in rem. Such an action is
essentially for the purpose of affecting the
defendant’s interest in a specific property and not to
render judgment against him.
Kinds of Partition
1. Judicial partition; and
2. Extrajudicial partition
Jurisdiction over Partition
Since the action affects interest in real property,
jurisdiction shall be determined by inquiring into
the assessed value of the property. Hence an action
for partition may be filed in the MTC, if the assessed
value is not more than P400,000. If the subject
matter is personal property, an action should be
filed in the MTC if the value should not be more than
P2,000,000. (Sec. 33, B.P. 129, as amended by R.A. No.
11576)
Requisites of a valid Partition
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1. Right to compel the partition;
2. Complaint must state the nature and extent of
plaintiff's title and a description of the real
estate of which partition is demanded; and
3. All other persons interested in the property
must be joined as defendants. (Sec. 1, Rule 69,
ROC, as amended)
Who may file
The action shall be brought by the person who has a
right to compel the partition of real estate (Sec. 1,
Rule 69, ROC, as amended) or of an estate composed
of personal property, or both real and personal
property. (Sec. 13, Rule 69, ROC, as amended)
The plaintiff is a person who is supposed to be a co-
owner of the property or estate sought to be
partitioned. The defendants are all the co-owners
who are indispensable parties. (Sepuveda v. Pelaez,
G.R. No. 152195, 31 Jan. 2005)
NOTE: All the co-owners are indispensable parties.
As such, an action for partition will not lie without
the joinder of the said parties. (Sepuveda v. Pelaez,
G.R. No. 152195, 31 Jan. 2005)
Non-inclusion of a Co-owner in an Action for
Partition
1. Before judgment – Not a ground for a motion
to dismiss. The remedy is to file a motion to
include the party.
2. After judgment – Makes the judgment therein
void because co-owners are indispensable
parties.
NOTE: Creditors or assignees of co-owners may
intervene and object to a partition affected without
their concurrence. But they cannot impugn a
partition already executed unless there has been
fraud or in case it was made notwithstanding a
formal opposition presented to prevent it. (Sec. 12,
Rule 69)
3. Subject Matter is Real Property: an action for
partition should be filed in the MTC or RTC of
the province where the property or part
thereof is situated.
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NOTE: If several distinct parcels of land are
situated in different provinces, venue may be
laid in the MTC or RTC of any of said provinces.
4. Subject Matter is Personal Property: in the
place where the plaintiff or the defendant
resides, at the election of the plaintiff.
Matters to allege in the Complaint for Partition
1. The nature and extent of his title;
2. An adequate description of the real estate of
which partition is demanded;
3. Shall join as defendants all other persons
interested in the property (Sec. 1, Rule 69, ROC,
as amended); and
4. Demand for the accounting of the rents, profits
and other income from the property which he
may be entitled to.
NOTE: When the allegations of the complaint allege
that the plaintiff asserts exclusive ownership of the
party sought to be partitioned, the nature of the
action is not one for partition. It is an action for
recovery of property. (De la Cruz v. Court of Appeals,
G.R. No. 139442, 06 Dec. 2006)
Issues to be resolved in an Action for Partition
1. Whether the plaintiff is indeed a co-owner of
the property sought to be partitioned.
2. How the property is to be divided between the
plaintiff and defendant or what portion should
go to each co-owner.
Two Stages in every Action for Partition
1. First stage/phase – determination of whether
or not a co-ownership in fact exists and a
partition is proper
NOTE: An action for partition is at once an
action for declaration of co-ownership and for
segregation and conveyance of a determinate
portion of the properties involved. If the trial
court should find after trial the existence of co
ownership among the parties, it may and should
order the partition of the properties in the same
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action. (Vda. de Daffon v. Court of Appeals, G.R.
No. 129017, 20 Aug. 2002)
2. Second stage/phase – commences when it
appears that the parties are unable to agree
upon the partition directed by the court. (Riano,
2019)
Multiple Appeals
The judgment declaring the existence of a co-
ownership may be appealed. This is one of the
instances in which the Rules allow Multiple Appeals.
As such, the record on appeal is required to be
submitted. The period to appeal is 30 days.
When Court can issue the Order of Partition
During the trial, the court shall determine whether
or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership
among the parties, and that a partition is not legally
proscribed thus may be allowed. If the court so finds
that the facts are such that a partition would be in
order, and that the plaintiff has a right to demand
partition, the court will issue an order of partition.
Modes of Partition
1. By agreement of the parties – where they make
the partition among themselves by proper
instruments of conveyance.
NOTE: The court shall confirm the partition so
agreed upon by all the parties, and such
partition, together with the order of the court
confirming the same, shall be recorded in the
registry of deeds of the place in which the
property is situated. (Sec. 2, Rule 69, ROC as
amended)
2. By judicial proceedings under Rule 69 (order of
partition)—if the co-owners are unable to agree
upon the partition. (Art. 494 NCC; Figuracion-
Gerilla v. Vda. De Figuracion, G.R. No. 154322, 22,
Aug. 2006)
NOTE: Nothing in this Rule shall be construed to
restrict or prevent persons holding real estate
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court. be confirmed by the
court.
JUDGMENT AND ITS EFFECTS
Contents of Judgment and its Effects
1. If actual partition of property is made, the
judgment shall state definitely:
a. The metes and bounds and adequate
description; and
b. The particular portion of the real estate
assigned to each party.
NOTE: The judgment shall have the effect
of vesting in each party to the action the
portion of the real estate assigned to him.
(Sec. 11, Rule 69, ROC, as amended)
2. If the whole property is assigned to one of the
parties upon his paying to the others the sum or
sums ordered by the court, the effect of
judgment shall be to vest in the party making
the payment the whole of the real estate free
from any interest in the part of the other parties
to the action. (Ibid.)
3. If the property is sold and the sale confirmed by
the court, the judgment shall state:
a. The name of the purchaser/s making the
payment; and
b. A definite description of the parcels of real
estate sold to each purchaser.
NOTE: A certified copy of the judgment shall in
either case be recorded in the registry of deeds of
the place in which the real estate is situated, and the
expenses of such recording shall be taxed as part of
the costs of the action. (Sec. 11, Rule 69, ROC, as
amended)
Stages in an Action for Partition could be the
Subject of Appeal
1. Order determining the propriety of the
partition;
317
2. Judgment as to the fruits and income of the
property;
3. Judgment of partition.
NOTE: The mode of appeal is record on appeal. This
is one of the instances when the rules allow multiple
appeals. A judgment declaring the existence of co-
ownership is immediately appealable. Judgment
directing an accounting is appealable regardless of
whether the accounting is the principal relief sought
or a mere incident, and becomes final and executory
within the reglementary period. (Miranda v. CA, G.R.
No. L-33007, 18 June 1976)
Partition of Personal Property
The provisions of this Rule shall apply to partitions
of estates composed of personal property, or of both
real and personal property, in so far as the same
may be applicable. (Sec. 13, Rule 69, ROC, as
amended)
Prescription of Action
GR: An action to demand partition of a co-owned
property does not prescribe as long as there is a
recognition of the co-ownership, expressly or
impliedly. (Art. 494, NCC)
XPN: A co-owner may acquire ownership thereof by
prescription where there exists a clear repudiation
of the co-ownership and the co-owners are apprised
of the claim of adverse and exclusive ownership.
(Heirs of Restar v. Heirs of Cichon, G.R. No. 161720, 22
Nov. 2005; Riano, 2019)
NOTE: The Supreme Court held that where the
transferees of an undivided portion of the land
allowed a co-owner of the property to occupy a
definite portion thereof and had not disturbed the
same for a period too long to be ignored, the
possessor is in a better condition or right than said
transferees (Potior est conditio possidentis). Such
undisturbed possession had the effect of a partial
partition of the co-owned property which entitles
the possessor to the definite portion which he
occupies. (Vda. de Cabrera v. CA, G.R. No. 108547, 03
Feb 1997)
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Instances when a Co-owner may not demand
Partition (A-D-L-U-C)
a. There is an Agreement among the co-owners
to keep the property undivided for a certain
period of time but not exceeding ten years;
(Art. 494, NCC)
b. When partition is prohibited by the Donor or
testator for a period not exceeding 20 years;
(Art. 494; Art. 1083, NCC)
c. When partition is prohibited by Law; (Art. 494,
NCC)
d. When property is not subject to physical
division and to do so would render it
Unserviceable for the use for which it is
intended; (Art. 495, NCC) and
e. When the condition imposed upon voluntary
heirs before they can demand partition has not
yet been fulfilled. (Art. 1094, NCC)
I. FORCIBLE ENTRY
AND UNLAWFUL DETAINER
(RULE 70)
Ejectment Proceedings
Unlawful detainer and forcible entry suits are
designed to summarily restore physical possession
of a piece of land or building to one who has been
illegally or forcibly deprived thereof, without
prejudice to the settlement of the parties' opposing
claims of juridical possession in appropriate
proceedings.
Nature of Ejectment Proceedings
An action for ejectment (forcible entry or unlawful
detainer) is a real action because it involves the
issue of possession of real property (Sec. 1, Rule 4,
ROC, as amended). It is also however, an action in
personam because the action is directed against a
particular person who is sought to be held liable.
(Domagas v. Jensen, G.R. No. 158407, 17 Jan. 2005)
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DEFINITION AND DISTINCTION
Forcible Entry
It is an action to recover possession founded upon
illegal possession from the beginning when one is
deprived of physical possession of real property by
means of force, intimidation, threat, strategy, or
stealth. It is commenced by a verified complaint.
(Sec. 1, Rule 70)
Requisites of Forcible Entry (P-F-I-S-T-S-1)
1. A person is deprived of Possession of any land
or building;
2. by Force, Intimidation, Strategy, Threat, or
Stealth (FISTS); and
3. Action is brought within 1 year from the
unlawful deprivation. (Sec. 1, Rule 70)
Questions to be Resolved in an Action for
Forcible Entry (A-O-R)
1. Who has Actual possession over the real
property;
2. Was the possessor Ousted therefrom within 1
year from the filing of the complaint by force,
intimidation, strategy, threat or stealth; and
3. Does the plaintiff ask for the Restoration of his
possession? (Dizon v. Concina, G.R. No. 23756, 27
Dec. 1969)
Unlawful Detainer
It is where one illegally withholds possession after
the expiration or termination of his right to hold
possession under any contract, express or implied.
(Riano, 2019)
It is commenced by a verified complaint. (Sec. 1, Rule
70, ROC, as amended)
NOTE: In a summary action of unlawful detainer,
the question to be resolved is which party has the
better or superior right to the physical/material
possession (or de facto possession) of the disputed
premises. Whereas in the action for recovery of
ownership, the question to be resolved is which
party has the lawful title or dominical right (i.e.,
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owner's right) to the disputed premises. (Bradford
United Church of Christ Inc., v. Dante Ando, et al. G.R
No. 195669, 30 May 2016)
Requisites of Unlawful Detainer
1. Possession of any land or building is unlawfully
withheld from a lessor, vendor, vendee, or other
person after the expiration or termination of
the right to hold possession by virtue of any
contract express or implied;
NOTE: It has been held that prior physical
possession by the plaintiff is not an
indispensable requirement in an unlawful
detainer case brought by a vendee or other
person against whom the possession of any
land is unlawfully withheld after the expiration
or termination of a right to hold possession.
(William Go v. Albert Looyuko, G.R. No. 19652,
July 1, 2013, citing Sps. Maninang v. CA, G.R. No.
121719, 16 Sept. 1999)
2. Action is brought within 1 year after such
unlawful deprivation or withholding of
possession; and
3. Demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee.
(Sec. 1, Rule 70, ROC, as amended)
NOTE: If the complaint does not allege facts
showing compliance with the prescribed one-year
period to file an action for unlawful detainer, then it
cannot properly qualify as such action over which
the MTC can exercise jurisdiction. Such allegations
are jurisdictional and crucial. It may then be an
accion publiciana or accion reivindicatoria. (Estate
of Manantan v. Somera, G.R. No. 145867, 7 Apr. 2009)
Q: Milagros A. Viray alleged that she is the lawful
owner of a stall space in a commercial building
built on the land covered by TCT No. 25216
registered in her name and declared for taxation
purposes. In July 1993, Milagros verbally leased
the said stall to Florita Viray, her daughter-in-
law, the wife of her son, Julito Viray. It was
agreed upon by the parties that Florita will use
the stall for selling dressed chicken only. A
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demand to pay the rentals in arrears and to
vacate the stall was sent to her on May 20, 2014
to no avail. Hence, this complaint. In her Answer,
Florita countered that the lot is co- owned by
Milagros and her children as heirs to the estate
of Chan Lee a.k.a. Jose Viray, Milagros' late
husband. The lot used to be part of a bigger lot
covered by TCT No. 2870, a conjugal property of
Chan Lee and Milagros. During the pendency of
the case in the CA, Milagros died and she was
substituted by her heirs, John, Julito, and
Marcelino, Jr., as represented by John A. Viray.
Thereafter, Florita filed a Manifestation with
Motion to Dismiss Appeal praying that the
ejectment case be dismissed. Petitioner claimed
that since the property is now under co-
ownership and one of its co-owners is Julito, her
husband, a situation arises where a co-owner
becomes a party against his wife which is a
strange case. Petitioner claimed that a co-owner
cannot be ejected from a portion of an undivided
property. Is the action for unlawful detainer
proper?
A: NO. From 1995 to 2009, before the title was
registered in the name of Milagros, Florita’s
possession of the subject property was by virtue of
co-ownership. In an unlawful detainer case, the key
jurisdictional fact that should be proved is that the
acts of tolerance should have been present right
from the very start of possession, and We may
hasten to add, that such nature of possession by
tolerance shall continue up to the filing of the
ejectment complaint. When Milagros filed a
complaint for unlawful detainer in 2014, she failed
to establish that petitioner's possession of the
subject property was tolerated all the way from the
very beginning. In the absence of proof of tolerated
possession up to the filing of the complaint for
unlawful detainer, the jurisdictional element of an
illegal detainer case is not satisfied. (Florita Viray v
Heirs of Milagros Viray, G.R. 252325, 18 Mar. 2021)
Formal Contract not a Prerequisite in Unlawful
Detainer
Even if there is no formal contract between the
parties, there can still be an unlawful detainer
because implied contracts are covered by ejectment
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Q: Sps. De Jesus filed with the RTC an action for
recovery of possession alleging that they are the
real owners of the said estate evidenced by the
TCTs they were able to present. On the other
hand, the Heirs of Telesforo through Sps. Julao,
argued that they are the lawful heirs of the
property since they never transferred nor
conveyed the property to anyone; the claim was
based on an OCT issued by the DENR. The RTC
ruled in favor of the Sps. Julao since they were
able to present the proper certificate of titles. On
appeal, the CA reversed the ruling and
dismissed the complaint stating that the RTC
never acquired jurisdiction in the said case
since the assessed value of the property was
never mentioned in the complaint. Is the
decision of the CA proper?
A: YES. In an action for recovery of possession, the
assessed value of the property sought to be
recovered determines the court's jurisdiction.
Jurisdiction is conferred by law and is determined
by the allegations in the complaint, which contains
the concise statement of the ultimate facts of a
plaintiffs cause of action.
Petitioners’ failure to allege in their complaint the
assessed value of the subject property would equate
to failure to establish that the RTC had jurisdiction
over it. In fact, it cannot be determined which trial
court had original and exclusive jurisdiction over
the case. (Heirs of Telesforo Julao v. Sps. Alejandro
and Morenita De Jesus, G.R. No. 76020, 29 Sept. 2014)
NOTE: The amount of rents and damages claimed
does not affect jurisdiction of the MTCs because the
same are only incidental or accessory to the main
action. (Lao Seng Hian v. Lopez, G.R. No. L-1950, 16
May 1949)
If only rents or damages are claimed in an ordinary
action, the action is personal and the amount
claimed determines whether it falls within the
jurisdiction of the RTC or the MTC.
Venue
Forcible entry and unlawful detainer actions are
those affecting possession of real property, hence,
are real actions. The venue of these actions,
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2023 GOLDEN NOTES
therefore, is the place where the property is
situated. (Sec. 1, Rule 4, ROC, as amended)
On the other hand, these actions are not only real
actions, they are also in personam because the
plaintiff seeks to enforce a personal obligation to
vacate the property subject of the action and restore
physical possession thereof to the plaintiff.
(Domagas v. Jensen, G.R. No. 158407, 17 Jan 2005)
Effect of the pendency of an Action involving
Ownership on an Action for Forcible Entry and
Unlawful Detainer
It does not bar the filing of an ejectment suit, nor
suspend the proceedings of one already instituted.
The underlying reason for this rule is to prevent the
defendant from trifling with the summary nature of
an ejectment suit by the simple expedient of
asserting ownership over the disputed property.
(Tecson v. Gutierrez, G.R. No. 152978, 4 Mar. 2005)
Judgment conclusive only on Possession
Where the issue of ownership is raised by any of the
parties, the courts may pass upon the same in order
to determine who has the right to possess the
property. However, the adjudication is only
provisional and will not bar or prejudice an action
between the same parties involving title to the
property. (Esmaquel v. Coprada, G.R. No. 152423, 15
Dec. 2010)
Jurisdiction in Accion Publiciana and Accion
Reivindicatoria
The court that has jurisdiction over the action
depends on the assessed value of the property.
1. RTC has jurisdiction if the value of the
property exceeds P400,000.
2. MTC has jurisdiction if the value of the
property does not exceed the above amounts.
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WHO MAY INSTITUTE THE ACTION AND WHEN;
AGAINST WHOM THE ACTION MAY BE
MAINTAINED
Who may Institute the Action
1. A person deprived of the possession of any
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee;
or
2. Other persons against whom the possession of
any land or building is unlawfully withheld
after the expiration or termination of the right
to hold possession, by virtue of any contract,
express or implied, or the legal representatives
or assigns of any such lessor, vendor, vendee,
or other person. (Sec. 1, Rule 70, ROC, as
amended)
Lessor to Proceed against Lessee only After
Demand
Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to pay
or comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving
written notice of such demand upon the person
found on the premises if no person be found
thereon, and the lessee fails to comply therewith
after 15 days in the case of land or 5 days in the case
of buildings. (Sec. 2, Rule 70, ROC, as amended)
When Right to Commence the Action Arises
The action shall commence if the lessee fails to
comply with the requisite demand after 15 days in
case of land or 5 days in case of buildings. (Sec. 2,
Rule 70, ROC, as amended)
PLEADINGS ALLOWED
The only pleadings allowed to be filed are: (C3-A)
1. Complaint;
2. Compulsory counterclaim;
3. Crossclaim pleaded in the answer; and
4. Answer (Sec. 4, Rule 70, ROC, as amended)
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All pleadings shall be verified. (Ibid.)
NOTE: Within 10 days from service of summons, the
defendant shall file his answer to the complaint and
serve a copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be
deemed waived, except lack of jurisdiction over the
subject matter. Crossclaims and compulsory
counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or
crossclaims shall be served and filed within 10 days
from service of the answer in which they are
pleaded. (Sec. 6, Rule 70, ROC, as amended)
Q: Aries filed an unlawful detainer case against
Patrick before the appropriate MTC. In his
answer, Patrick avers as a special and
affirmative defense that he is a tenant of Aries’
deceased father in whose name the property
remains registered. What should the court do?
Explain briefly. (2007 BAR)
A: The court should hold a preliminary conference
not later than 30 days after the defendant’s answer
was filed, since the case is governed by summary
procedure under Rule 70 of the Rules of Court,
where a reply is not allowed. The court should
receive evidence to determine the allegations of
tenancy. If tenancy had in fact been shown to be the
real issue, the court should dismiss the case for lack
of jurisdiction.
If it would appear that Patrick’s occupancy of the
subject property was one of agricultural tenancy,
which is governed by agrarian laws, the court
should dismiss the case because it has no
jurisdiction over agricultural tenancy cases.
Patrick’s allegation that he is a “tenant” of plaintiff’s
deceased father suggests that the case is one of
landlord-tenant relation and therefore, not within
the jurisdiction of ordinary courts.
Action on the Complaint
The court may, from an examination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
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dismissal is found, it shall forthwith issue summons.
(Sec. 5, Rule 70, ROC, as amended)
When Demand is necessary
Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
the lessee. (Sec. 2, Rule 70, ROC, as amended)
The requirement for a demand implies that the
mere failure of the occupant to pay rentals or his
failure to comply with the conditions of the lease
does not ipso facto render his possession of the
premises unlawful. It is the demand to vacate the
premises and the refusal to do so which make
unlawful the withholding of the possession and
gives rise to an action for unlawful detainer. (Riano,
2019)
What Constitutes a Demand in Unlawful
Detainer
1. To pay and to vacate – If the suit is based on
defendant’s failure to pay the rentals agreed
upon; or
2. To comply and to vacate – If suit is predicated
upon the defendant’s non-compliance with the
conditions of the lease contract. (Riano, 2019)
The reckoning point for determining the one-year
period within which to file the action is the receipt
of the last demand to vacate and pay. (Sec. 2, Rule 70,
ROC, as amended) (2014 BAR)
NOTE: The notice giving the lessee the alternative
either to pay the increased rental or otherwise
vacate the land is not the demand contemplated by
the Rules of Court in unlawful detainer cases. When
after such notice, the lessee elects to stay, he
thereby merely assumes the new rental and cannot
be ejected until he defaults in said obligation and
necessary demand is first made. (Peñas, Jr. v. CA, G.R.
No. 112734, 7 July 1994)
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Form of Demand
The demand may be in the form of a written notice
served upon the person found in the premises. The
demand may also be made by posting a written
notice on the premises if no person can be found
thereon. (Sec. 2, Rule 70, ROC, as amended)
It has been ruled, however, that the demand upon a
tenant may be oral. (Jakihaca v. Aquino, G.R. No.
83982, 12 Jan. 1990) Since, the demand is not
written, sufficient evidence must be adduced to
show that there was indeed a demand like
testimonies from disinterested and unbiased
witnesses. (Riano, 2019)
Prior Demand in Unlawful Detainer not
required (T-R-I-D)
1. Where the purpose of the action is to Terminate
the lease by reason of expiry of its term;
2. Where the purpose of the suit is not for
ejectment but for the Reinforcement of the
terms of the contract; or
3. When the defendant is not a tenant but a mere
Intruder; or
4. When there is stipulation Dispensing with a
demand. (Art. 1169, NCC; Sec. 2, Rule 70, ROC, as
amended)
Q: Ben sold a parcel of land to Del with right to
repurchase within 1 year. Ben remained in
possession of the property. When Ben failed to
repurchase the same, title was consolidated in
favor of Del. Despite demand, Ben refused to
vacate the land, constraining Del to file a
complaint for unlawful detainer. In his defense,
Ben averred that the case should be dismissed
because Del had never been in possession of the
property. Is Ben correct? (2008 BAR)
A: NO. In an action for unlawful detainer, it is not
required that the plaintiff be in prior physical
possession of the land subject of the action. In this
action by the vendee a retro against a vendor a retro
who refused to vacate the property even after title
has been consolidated in the vendee, the latter, in
contemplation of law, steps into the shoes of the
vendor and succeeds to his rights and interest.
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(Pharma Industries Inc. v. Hon. Pajarillaga, G.R. No.
L-53788, 17 Oct. 1980)
Rule in case of Tacita Reconduccion in relation to
Unlawful Detainer
Under Art. 1670 of NCC, if at the end of lease, the
lessee continues to enjoy the property leased for 15
days with consent of the lessor, and no notice to the
contrary has been given, it is understood that there
is an implied new lease.
When there is tacita reconduccion, the lessee cannot
be deemed as unlawfully withholding the property.
There is no unlawful detainer. (Riano, 2019)
An implied new lease or tacita reconduccion will set
in if it is shown that:
1. The term of the original contract of lease has
expired;
2. The lessor has not given the lessee a notice to
vacate; and
3. The lessee continued enjoying the thing leased
for fifteen days with the acquiescence of the
lessor. (Riano, 2019)
Q: Chua leased a portion of his commercial
building to petitioner Joven Yuki, Jr. Thereafter,
the lease was renewed through a series of verbal
and written agreements, the last of which was a
written Contract of Lease covering the period of
one year. Later on, Chua informed Yuki that he
sold the property to Wellington Co. and
instructed petitioner to thenceforth pay the rent
to the new owner. After the expiration of the
lease contract, petitioner refused to vacate and
surrender the leased premises. Thus,
Wellington Co. filed a Complaint for unlawful
detainer before the MeTC of Manila. The MeTC
ruled in favor of Wellington Co saying that there
was no implied new lease created when
Wellington accepted the rentals made by Yuki.
On appeal, RTC reversed the ruling of the MeTC
finding no proof that the petitioner actually
received the notice to vacate. Can the implied
new lease divest the MeTC of jurisdiction over
the case?
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A: NO. The existence of implied new lease or tacita
reconduccion based on the allegations in the
complaint will not divest the MeTC of jurisdiction
over the ejectment case. The allegations pleaded in
the complaint and not the defenses set up in the
answer or pleadings filed by the defendant which
determines jurisdiction of the court over ejectment
cases. This principle holds even if the facts proved
during trial do not support the cause of action
alleged in the complaint. Here, the Complaint
sufficiently alleged the elements to be proved and
resolved in an unlawful detainer case i.e. the facts of
lease and expiration or violation of its terms. (Joven
Yuki, Jr. v. Wellington Co, G.R. No. 178527, 27 Nov.
2009)
Q: The spouses Juan reside in Quezon City. With
their lottery winnings, they purchased a parcel
of land in Tagaytay City for P100,000.00. In a
recent trip to their Tagaytay property, they were
surprised to see hastily assembled shelters of
light materials occupied by several families of
informal settlers who were not there when they
last visited the property three (3) months ago.
To rid the spouses’ Tagaytay property of these
informal settlers, briefly discuss the legal
remedy you, as their counsel, would use; the
steps you would take; the court where you
would file your remedy if the need arises; and
the reason/s for your actions. (2013 BAR)
A: As counsel of spouses Juan, I will file a special civil
action for Forcible Entry. The Rules of Court
provides that a person deprived of the possession of
any land or building by force, intimidation, threat,
strategy or stealth may at any time within (one) 1
year after such withholding of possession bring an
action in the proper Municipal Trial Court where the
property is located. This action which is summary in
nature seeks to recover the possession of the
property from the defendant which was illegally
withheld by the latter. (Sec. 1, Rule 70, ROC, as
amended)
An ejectment case is designed to restore, through
summary proceedings, the physical possession of
any land or building to one who has been illegally
deprived of such possession, without prejudice to
the settlement of the parties’ opposing claims of
UNIVERSITY OF SANTO TOMAS
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juridical possession in appropriate proceedings.
(Heirs of Agapatio T. Olarte and Angela A. Olarte et
al. v. Office of the President of the Philippines et al.,
G.R. No. 177995, 15 June 2011)
In Abad v. Farrales, (G.R. No. 178635, 11 Apr. 2011),
the Supreme Court held that two allegations are
indispensable in actions for forcible entry to enable
first level courts to acquire jurisdiction over them:
first, that the plaintiff had prior physical possession
of the property; and, second, that the defendant
deprived him of such possession by means of force,
intimidation, threats, strategy, or stealth.
However, before instituting the said action, I will
first endeavor to amicably settle the controversy
with the informal settlers before the appropriate
Lupon or Barangay Chairman. If there is no
agreement reached after mediation and conciliation
under the Katarungang Pambarangay Law, I will
secure a certificate to file action and file the
complaint for ejectment before the MTC of Tagaytay
City where the property is located since ejectment
suit is a real action regardless of the value of the
property to be recovered or claim for unpaid
rentals. (B.P. 129 and Sec. 1, Rule 4, ROC, as amended)
In the aforementioned complaint, I will allege that
Spouses Juan had prior physical possession and that
the dispossession was due to force, intimidation and
stealth. The complaint will likewise show that the
action was commenced within a period of one (1)
year from unlawful deprivation of possession, and
that Spouses Juan is entitled to restitution of
possession together with damages and costs.
PRELIMINARY INJUNCTION
AND PRELIMINARY MANDATORY INJUNCTION
Remedy of the Plaintiff in order to obtain
Possession of the Premises during the Pendency
of an Action
The plaintiff may, within 5 days from filing of the
complaint file a motion in the same action for the
issuance of a writ of preliminary mandatory
injunction to restore him his possession. This
motion shall be resolved within 30 days from its
UNIVERSITY OF SANTO TOMAS
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filing. (Sec. 15, Rule 70, ROC, as amended; Riano,
2019)
Grant of Injunction while the case is pending
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58
(Preliminary Injunction), to prevent the defendant
from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession through
forcible entry or unlawful detainer may, within 5
days from the filing of the complaint, present a
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within 30 days from the filing thereof. (Sec. 15, Rule
70, ROC, as amended)
NOTE: If judgment is appealed to the Regional Trial
Court, said court may issue a writ of preliminary
mandatory injunction to restore the plaintiff in
possession if the court is satisfied that the
defendant's appeal is frivolous or dilatory or that
the appeal of the plaintiff is prima facie meritorious.
(Sec. 20, Rule 70, ROC, as amended)
Determination of the Issue of Ownership in
Forcible Entry and Unlawful Detainer cases
In cases where the defendant raises the question of
ownership in the pleadings and the question of
possession cannot be resolved without deciding the
issue of ownership, the court may proceed and
resolve the issue of ownership but only for the
purpose of determining the issue of possession.
However, the disposition of the issue of ownership
is not final as it may be the subject of separate
proceeding specifically brought to settle the issue.
(De la Rosa v. Roldan, G.R. No. 133882, 5 Sept. 2006)
NOTE: The only issue involved in ejectment
proceedings is as to who is entitled to the physical
or material possession of the premises, that is,
possession de facto and not possession de jure.
(Juanita Ermitaño, represented by her attorney-in-
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fact, Isabelo Ermitaño v. Paglas, G.R. No. 174436, 13
Jan. 2013; Regalado, 2017)
The issue of ownership shall be resolved only to
determine the issue of possession. Allegations of
ownership is not material in ejectment cases.
Evidence of ownership will be allowed only for the
court to determine the character and extent of
possession.
Judgment in Forcible Entry and Unlawful
Detainer cases NOT conclusive as to the Title to
the Property
The judgment rendered in an action for forcible
entry or detainer is conclusive only as to possession
of the property. Said judgment does not bind the
title or affect the ownership of the land or building.
A distinct and separate action between the same
parties respecting title to the land or building may
be had. (Sec. 18, Rule 70; Lim v. Spouses Ligon, G.R.
No. 183589, 25 June 2014)
NOTE: The assertion by the defendant of ownership
over the disputed property does not serve to divest
the inferior court of its jurisdiction. The defendant
cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved. (Rural
Bank of Sta. Ignacia v. Dimatulac, G.R. No. 142015, 29
Apr. 2003; Perez v. Cruz, G.R. No. 142503, 20 June
2003)
Binding of Judgment
GR: Judgment in an ejectment case is binding only
upon the parties properly impleaded and given an
opportunity to be heard.
XPNs: It becomes binding on anyone who has not
been impleaded in certain instances as in the
following:
1. A sublessee is bound by the judgment against
the lessee because his right to the premises is
merely subsidiary to that of the lessee;
2. A guest or a successor in interest, the members
of the family of the lessee or his servants and
327
employees are likewise bound by the judgment
even if not impleaded in the suit for ejectment;
3. Trespassers, squatters or agents of the
defendant fraudulently occupying the property
to frustrate the judgment; and
4. Transferees pendente lite and other privies of
the defendant. (Riano, 2019)
NOTE: The plaintiff, in ejectment cases, is entitled to
damages caused by his loss of the use and
possession of the premises, but not for damages
caused on the land or building, which latter items of
damages should be recovered by plaintiff, if he is the
owner, in an ordinary action. (Santos v. Santiago,
G.R. No. 12208, 09 Sept. 1918)
However, it has been held that plaintiff can recover
from defendant liquidated damages stipulated in
the lease contract. (Gozon v. Vda. De Barrameda, G.R.
No. 17473, 30 June 1964)
Q: Teresita is the absolute owner of a parcel of
land. Lucia, on the other hand, claims that she
and her husband entered the subject land with
the consent and permission of Teresita’s
predecessors-in-interest under the agreement
that they would devote the property to
agricultural production and share the produce
with Teresita’s predecessors-in-interest.
Teresita filed a Complaint for Unlawful Detainer
against Lucia for refusal to vacate the land
despite several demands. Is Teresita entitled to
damages?
A: NO. The only damage that can be recovered by
Teresita is the fair rental value or the reasonable
compensation for the use and occupation of the
leased property. The reason for this is that in
forcible entry or unlawful detainer cases, the only
issue raised in ejectment cases is that of rightful
possession; hence, the damages which could be
recovered are those which the Teresita could have
sustained as a mere possessor, or those caused by
the loss of the use and occupation of the property,
and not the damages which she may have suffered
but which have no direct relation to her loss of
UNIVERSITY OF SANTO TOMAS
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A supersedeas bond is necessary to prevent
immediate execution only if the judgment awarded
rents, damages, and costs. Where the judgment only
ordered the defendant to vacate and to pay
attorney’s fees, a supersedeas bond is not required
to cover attorney’s fees. (Once v. Gonzalez, G.R. No. L-
44806, 31 Mar. 1977) (2017 BAR)
Rules of Res Judicata and Conclusiveness of
Judgment apply in Ejectment case
But subject to the qualification that judgment is
conclusive with respect to the right of possession
under and by virtue of a contract the existence of
which has been proved in said ejectment suit.
(Penas v. Tuason, G.R. No. L-3404, 02 Apr. 1951)
Q: After the real estate mortgages over two
parcels of land over the property of Sps. Rosario
in favor of Priscilla were discharged, Agnes
Rosario sold the same lots in favor of Priscilla's
daughter, Evangeline but the latter later sold the
lots to Priscilla for the same price. When
Priscilla sought the spouses to vacate the lot,
Sps. Rosario instead filed a Complaint for
Declaration of Nullity of Contract of Sale and
Mortgage. Priscilla, in turn, filed a Complaint for
Recovery of Possession. The cases were
consolidated and the RTC ruled in favor of
Priscilla. On appeal, the CA reversed the
Decision of the RTC. In its Decision, the CA ruled
that although the transfers from Agnes to
Priscilla were identified as absolute sales, the
contracts are deemed equitable mortgages. The
CA Decision became final and executory. Due to
the failure or refusal of Sps. Rosario to satisfy
their outstanding obligation, Priscilla filed a
Complaint for Judicial Foreclosure of Real Estate
Mortgage. May the Sps. Rosario, in the instant
petition, question the legal personality of
Priscilla to foreclose the subject property and
claim that the loan obligation has no legal and
factual bases?
A: NO. There is conclusiveness of judgment as to the
issues pertaining to the existence of the loan and the
legal personality of Priscilla to file a case for judicial
foreclosure in accordance with the November 15,
2006 Decision. As such, the factual findings and
329
conclusions in said Decision may no longer be
disputed by Sps. Rosario as res judicata by
conclusiveness of judgment, which bars them from
challenging the same issues. The said Decision of the
CA, from which this case arose, has attained finality
due to the failure of the parties to file a motion for
reconsideration or an appeal. The elements of res
judicata by conclusiveness of judgment are present:
first, the November 15, 2006 Decision has attained
finality; second, the said decision was rendered by a
court having jurisdiction over the subject matter and
the parties; third, the said decision disposed of the
case on the merits; and fourth, there is, as between
the previous case and the instant case, an identity of
parties. (Sps. Rosario v. Alvar, G.R. No. 212731, 6 Sept.
2017)
PROHIBITED PLEADINGS AND MOTIONS
1. Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject
matter, or failure to comply with a referral to
the Lupon Tagapamayapa in cases covered by
the LGC;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions. (Sec. 13, Rule 70, ROC, as
amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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of order in judicial proceedings and to the
J. CONTEMPT enforcement of judgments, orders and mandates of
(RULE 71) the courts, and, consequently, to the due
administration of justice.

Definition It is settled that the power is to be exercised with

the end in view of utilizing the same for correction
It is disobedience to the court by acting in and preservation of the dignity of the court, and not
opposition to its authority, justice and dignity. It for retaliation or vindictiveness. It is to be exercised
signifies not only willful disregard or disobedience on the preservative, not vindictive principle, and on
of court’s orders, but such conduct as tends to bring the corrective and not retaliatory idea of
the authority of court and administration of law into punishment. (Laurel v. Francisco, A.M. No. RTJ-06-
disrepute or in some manner to impede the due 1992, 06 July 2010)
administration of justice. (Regalado v. Go, G.R. No.
167988, 6 Feb. 2007; Riano, 2019) Q: A TRO was filed by Custodio against Bro.
Bernardo Oca, et al. in the RTC to prevent
Kinds of Contempt another trustee from calling a special
membership meeting in order to remove the
1. As to nature (depending on the nature and complainant from the Board of Trustees. The
effect of the contemptuous act): case was dismissed, and the petitioner was
subsequently removed from the Board of
a. Civil Trustees and as Curriculum Administrator.
b. Criminal Eventually, a complaint for contempt of court
was filed by the original complainant against the
2. As to the manner of commission: adverse parties for their alleged willful
disobedience to the various orders of the trial
a. Direct court. Are the parties guilty of contempt of
b. Indirect court?

PURPOSE AND NATURE OF EACH
Functions of Contempt Proceedings
1. Vindication of public interest by punishment of
contemptuous conduct; and
2. Coercion to compel the contemnor to do what
the law requires him to uphold the power of the
court, and also to secure the rights of the parties
to a suit awarded by the court.
Nature of Contempt Power
The power to punish for contempt is inherent in all
courts; its existence is essential to the preservation
A: YES. The purpose of the filing and the nature of
the contempt proceeding show that the original
complainant was seeking enforcement of the trial
court orders in the intra-corporate controversy
because the adverse parties refused to comply.
Hence, this is a civil contempt case, which does not
need proof beyond reasonable doubt. This Court has
ruled that while the power to cite parties in
contempt should be used sparingly, it should be
allowed to exercise its power of contempt to
maintain the respect due to it and to ensure the
infallibility of justice where the defiance is so clear
and contumacious and there is an evident refusal to
obey. (Oca v. Custodio, G.R. No. 199825, 26 July 2017)

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XPN: If he or she is guilty of conspiracy with any one
of the parties in violating the court’s orders. (Desa
Ent., Inc. v. SEC, G.R. No. L-45430, 30 Sept. 1982)
Q: Ray, through Atty. Velasco, filed a complaint
for quieting of title against Chiz. Chiz, however,
interposed the defense that the documents
relied upon by Ray and Atty. Velasco were
forged and falsified. Finding that the said
documents were indeed forged and falsified,
Judge Victoria cited Ray and Atty. Velasco for
direct contempt and ordered them to serve 10
days of detention at the Municipal Jail. Ray and
Atty. Velasco filed a motion for bail and a motion
to lift the order of arrest. But they were denied
outright by Judge Victoria. Is Judge Victoria
correct?
A: NO. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt,
in turn, is one perpetrated outside of the sitting of
the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of a
falsified document, more so where the falsity of the
document is not apparent on its face, merely
constitutes indirect contempt, and as such is subject
to such defenses as the accused may raise in the
proper proceedings. Thus, following Sec. 3, Rule 71,
a contemnor may be punished only after a charge in
writing has been filed, and an opportunity has been
given to the accused to be heard by himself and
counsel.
Q: A temporary restraining order (TRO) was
issued on September 20, 2017 by the RTC
against defendant Jeff enjoining him from
entering the land of Regan, the plaintiff. On
October 9, 2017, upon application of Regan, the
trial court, allegedly in the interest of justice,
extended the TRO for another 20 days based on
the same ground for which the TRO was issued.
On October 15, 2017, Jeff entered the land
subject of the TRO. May Jeff be liable for
contempt of court? Why? (2017 BAR)
UNIVERSITY OF SANTO TOMAS
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A: NO. Jeff may not be liable for contempt. Under the
Rule on Preliminary Injunction, a TRO is effective
only for a period of 20 days from service on the
person sought to be enjoined. It is deemed
automatically vacated if the application for
preliminary injunction is denied or not resolved
within the said period and no court shall have the
authority to extend or renew the TRO on the same
ground for which it was issued. (Sec. 5, Rule 58) Here
the extension of the TRO by the RTC was invalid
since it was for the same ground for which the TRO
was issued. Hence the TRO was deemed
automatically vacated and thus Jeff may not be liable
for contempt for ignoring it.
NOTE: A pleading containing derogatory, offensive
or malicious statements submitted before the court
or judge where the proceedings are pending
constitutes direct contempt.
It is because the insulting pleading is equivalent to
misbehavior committed in the presence of or so
near a court or judge as to interrupt the
administration of justice. (Prosecutor Jorge Baculi v.
Judge Belen, A.M. No. RTJ-11-2286, 12 Feb. 2020)
Remedy against Direct Contempt; Penalty
A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition against the court which
adjudged him in direct contempt. (Sec. 2, Rule 71,
ROC, as amended; Riano, 2019)
Pending the resolution of the petition for certiorari
or prohibition, the execution of the judgment for
direct contempt shall be suspended. The
suspension, however, shall take place only if the
person adjudged in contempt files a bond fixed by
the court which rendered the judgment. This bond
is conditioned upon his performance of the
judgment should the petition be decided against
him. (Sec.2, Rule 71, ROC, as amended; Riano, 2019)
Q: Lawyer Mendoza, counsel for the accused in a
criminal case, was cited for direct contempt by
Judge Tagle and was sentenced to 10 days of
imprisonment. Lawyer Mendoza was placed in
prison immediately. Lawyer Mendoza
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V. SPECIAL CIVIL ACTIONS
manifested his readiness to post a bond and to
appeal the order by certiorari to stay its
execution but Judge Tagle said that the order is
immediately executory. Is Judge Tagle correct?
A: NO. An order of direct contempt is not
immediately executory or enforceable. The
contemner must be afforded a reasonable remedy
to extricate or purge himself of the contempt. Under
Sec. 2, Rule 71, of the Rules of Court, a person
adjudged in direct contempt by any court may not
appeal therefrom but may avail himself of the
remedies of certiorari or prohibition. The execution
of the judgment shall be suspended pending
resolution of such petition, provided such person
files a bond fixed by the court which rendered the
judgment and conditioned that he will abide by and
perform the judgment should the petition be
decided against him. (Tiongco v. Judge Salao, A.M.
No. RTJ-06-2009, 27 July 2006)
Remedy against Indirect Contempt; Penalty
A person adjudged in indirect contempt may appeal
from the judgment or final order of the court in the
same manner as in criminal case. The appeal will
not, however, have the effect of suspending the
judgment if the person adjudged in contempt does
not file a bond in an amount fixed by the court from
which the appeal is taken. This bond is conditioned
upon his performance of the judgment or final order
if the appeal is decided against him. (Sec. 11, Rule 71,
ROC, as amended; Riano, 2019)
HOW CONTEMPT PROCEEDINGS
ARE COMMENCED
Due to its primitive aspect, contempt proceeding is
in the nature of a criminal action, hence procedural
and evidentiary rules of criminal action are applied
as far as practicable. Doubts shall always be
resolved in favor of the person charged with
contempt.
Direct Contempt
No formal proceeding is required to cite a person in
direct contempt. The court against which the
contempt is directed may summarily adjudge a
335
person in direct contempt. (Sec. 1 Rule 71, ROC, as
amended; Encinas v. National Bookstore Inc., G.R. No.
162704, 28, July 2005)
Indirect Contempt
Generally, the procedural requisites before the
accused be punished for indirect contempt are:
a. Charge in writing;
b. Opportunity for the person charged to appear
and explain his conduct; and
c. Opportunity to be heard by himself or counsel.
(Barredo-Fuentes v. Albarracion, A.M. NO. MTJ-
05-1587; 15 Apr. 2005; Riano, 2019)
Since an indirect contempt charge partakes the
nature of a criminal charge, conviction cannot be
had merely on the basis of written pleadings. A
respondent in a contempt charge must be served
with a copy of the motion/petition. Unlike in civil
actions, the Court does not issue summons on the
respondent. While the respondent is not required to
file a formal answer similar to that in ordinary civil
actions, the court must set the contempt charge for
hearing on a fixed date and time on which the
respondent must make his appearance to answer
the charge. (Silverio Sr. v. Silverio Jr., G.R. No. 186589,
18 July 2014)
There are two ways by which a person can be
charged with indirect contempt, namely:
1. The charge is initiated motu proprio by the
court against which the contempt was
committed – it is commenced by an order of the
same court or any formal charge requiring the
respondent to show cause why he should not be
punished for contempt.
2. The charge is commenced by filing a verified
petition by someone other than the court –
this petition shall be accompanied by
supporting particulars and certified true copies
of documents or papers involved therein. The
petition shall likewise comply with the
requirements for the filing of initiatory
pleadings for civil actions in the court
concerned. (Sec. 4, Rule 71, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW