Land Problems and Remedies

Recovery of real property.

In a registration case the judgment confirming the title of the applicant and ordering its
registration in his name necessarily carries with it the delivery of possession which is an inherent
element of the right of ownership. The issuance of the writ of possession is therefore sanctioned
by existing laws in this jurisdiction and by the generally accepted principles upon which the
administration of justice rests.
But when other persons have subsequently entered the property, claiming the right of possession,
the owner of the registered property or his successors in interest cannot dispossess such persons
by merely asking for a writ of possession. The remedy is to resort to the courts of justice and
institute a separate action for unlawful entry or detainer, or for reinvindicatory action, as the case
may be.
. . . The two are distinguished from each other in that in forcible entry, the possession of the
defendant is illegal from the beginning, and that the issue is which party has prior de facto
possession while in unlawful detainer, possession of the defendant is originally legal but became
illegal due to the expiration or termination of the right to possess.

Section 1, Rule 70 of the Rules of Court, provides:

"SECTION 1. Who may institute proceedings, and when. Subject to the provisions of the next
succeeding section, a person deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person 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, may, at any
time within one (1) year after such unlawful deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the person or persons unlawfully withholding
or depriving of possession, or any person or persons claiming under them, for the restitution of
such possession, together with damages and costs."
There are three kinds of actions for the recovery of possession of real property: the first is the
summary action established by Rule 70 of the Rules of Court, known as an action for forcible
entry or unlawful detainer, which seeks the recovery of physical possession only, and is brought
within the period of one year from the act of dispossession or the expiration of the tenants right
of possession, in the proper inferior court; the second is the accion publiciana, the same being
for the recovery of the right to possess and is deemed to be plenary action to be instituted in the
Regional Trial Court; and the third is the accion reivindicatoria, which seeks the recovery of
ownership, including, of course, possession, which is also within the jurisdiction of Regional
Trial Courts.

(a) Forcible entry or unlawful detainer (denominated accion interdictal), are two forms of an
ejectment suit which may be instituted by a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or stealth, or landlord, vendor, vendee, or other
person 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, expressed or
implied, or the legal representatives or assigns of any such landlord, vendor, vendee, or other
person. An ejectment case/suit is a summary proceeding designed to provide expeditious means
to protect actual possession or the right to possession of the property involved (Barrientos v.
Rapal, G.R. No. 169594, July 20, 2011). It is expeditious as it is governed by the Rule on
Summary Procedure, a special rule where extra pleadings and motions (other than the Complaint
and Answer), otherwise available in an ordinary civil action, are prohibited precisely to insulate
it from unnecessary delays. The main issue to be resolved here is the issue of possession or the
right to hold possession.
There are two entirely distinct and different causes of action under the aforequoted rule, to wit:
(1) a case for forcible entry, which is an action to recover possession of a property from the
defendant whose occupation thereof is illegal from the beginning as he acquired possession by
force, intimidation, threat, strategy or stealth;
The words by force, intimidation, threat, strategy or stealth shall include every situation or
condition under which one person can wrongfully enter upon real property and exclude another,
who has had prior possession, therefrom. The foundation of the action is really the forcible
exclusion of the original possessor by a person who has entered without right.

The act of going on the property and excluding the lawful possessor therefrom necessarily
implies the exertion of force over the property, and this is all that is necessary.

Stealth, on the other hand, is defined as any secret, sly, or clandestine act to avoid discovery
and to gain entrance into or remain within residence of another without permission, while
strategy connotes the employment of machinations or artifices to gain possession of the subject
property.

and (2) a case for unlawful detainer, which is an action for recovery of possession from the
defendant whose possession of the property was inceptively lawful by virtue of a contract
(express or implied) with the plaintiff, but became illegal when he continued his possession
despite the termination of his right thereunder.
In forcible entry, the plaintiff must allege in the complaint, and prove, that he was in prior
physical possession of the property in dispute until he was deprived thereof by the defendant by

any of the means provided in Section 1, Rule 70 of the Rules either by force, intimidation, threat,
strategy or stealth. On the other hand, in the case of unlawful detainer must allege that
(1) initially, possession of property by the defendant was by contract with or by
tolerance of the plaintiff;
(2) eventually, such possession became illegal upon notice by plaintiff to defendant of
the termination of the latters right of possession;
(3) thereafter, the defendant remained in possession of the property and deprived the
plaintiff of the enjoyment thereof; and
(4) within one year from the last demand on defendant to vacate the property, the
plaintiff instituted the complaint for ejectment
In both cases, ownership is not imperative in order for a plaintiff to acquire legal personality to
sue, as again, the issue is mere right to possession. The only issue involved in forcible entry or
unlawful detainer is mere physical or material possession (possession de facto) not juridical or
civil possession (possession de jure) which arises from ownership as one of its attributes nor
ownership of which a person has been deprived or against whom it has been withheld by any
of the means or circumstances mentioned. Actual or physical occupation is not always necessary
in order that possession may be acquired. (see Art. 531.) Neither claim of juridical possession nor
even ownership can prevent a court from taking cognizance of the case. In ejectment suit, the
issue of ownership in case it is raised by the defendant in the pleadings, may be passed
provisionally upon by the court but only for the sole purpose of settling the issue of possession
de facto, when the issue of ownership is inseparably linked thereto, without prejudice to a
plenary action between the same parties, to determine ownership or title to the property. The
plaintiff need only to allege and prove prior possession de facto and undue deprivation thereof.
Both actions must be brought in the proper municipal trial court or metropolitan trial court
within one year from the date of actual entry on the land or from the date of last demand to
vacate, as the case may be. (see Rules of Court, Rule 70, Sec. 1; Art. 1147.) The period of one
year is reckoned from, in the case of forcible entry (detencion), the date of actual possession if
the deprivation or the ground for the action is force, intimidation, or threat; and the date of
discovery and prohibition if the deprivation or ground for the action is strategy or stealth. In
unlawful detainer(desahuico), the period of one year is counted from the date of last demand.
The main difference between the two actions lies in the time when possession became unlawful
in forcible entry, it is from the time of entry, while in unlawful detainer, possession which was
at first lawful later became illegal. In unlawful detainer, the plaintiffs supposed acts of tolerance
must have been present right from the start of the possession which is later sought to be
recovered, and the defendant unlawfully withholds possession after the expiration or termination
of his right thereto. In such a case, prior physical possession is not required but is indispensable
in actions for forcible entry. When the complaint fails to aver facts constitutive of forcible entry

or unlawful detainer as when it does not state how entry was effected or how and when the
dispossession started; the remedy should either be an accion publiciana or an accion
reivindicatoria in the proper regional trial court.
In the case of forcible entry, the possession is unlawful/illegal from the very beginning, while in
unlawful detainer, it is inceptively lawful until the defendant refused and failed to vacate, after
demand is made upon him by the plaintiff. Demand is made upon the termination of the
defendant's right to hold possession of the subject property, either by expiration of contract,
breach of terms of the contract, or when an owner who tolerated the defendant's stay has
manifested its intention to use the property effectively ending the tolerance.
If youre a lessor of real property, you may have to resort to the remedy of ejectment in cases
where a lessee withholds possession of leased property after the latters right to hold the same
has already terminated, as where lessee has failed to pay rental, or has failed to comply with the
conditions of the lease contract, in which case it is called Unlawful Detainer.
It is also available where a present possessor has held possession of a subject property at the
tolerance of the owner or the one entitled to its possession, and thereafter refused, after demand
to vacate has been made upon him, or continues his possession thereof. In this case, an
inceptively lawful possession has become unlawful, when the tolerated possessor refused to
return the property upon demand by the rightful possessor or owner. Anyone, whose stay in the
property is merely tolerated, is bound by an implied obligation to vacate and return the same to,
upon demand of, the rightful possessor or owner.
In both cases, resort to barangay conciliation is condition precedent, meaning that the opposing
party may raise as objection the fact that the dispute has not been referred to the barangay
authorities for conciliation, and the same may be ground for the dismissal of the action.
However, it is not jurisdictional, meaning that it may be waived by such opposing party. It is
deemed waived when the opposing party failed to timely object to the fact of its (barangay
conciliation) absence.
Note that even the owner of the property may be sued for ejectment when he deprives another of
lawful possession, as in a case of a lessor depriving or ousting a lessee, who has been compliant
with his obligations under a lease contract, of possession thereof.
If the plaintiff has in his favor priority in time, he has the security that entitles him to remain in
the property (even against the owner himself) until he is lawfully ejected by a person having a
better right by accion publiciana or accion reivindicatoria.