Section 2, Rule 70 provides that, 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, or by
posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith
after fifteen (15) days in the case of land or five (5) days in the case of buildings.

It is fundamental principle in the law governing unlawful detainer cases that a mere plea of title or
ownership over the disputed land by the defendant cannot be used as a sound basis for dismissing an
action for recovery of possession because an action for recovery of possession can be maintained even
against the very owner of the property (Prado vs. Calpo, et. al., G.R. No. L-19379, April 30, 1964, cited in
Spouses medina and Bernal vs. Valdellon, 63 SCRA 278).
Where the possession of defendant is by tolerance on the part of the plaintiff, or his predecessor, the
possession or detainer becomes illegal from the time that there is a demand to vacate (Amis vs. Aragon, L4684, April 28, 1951). It is not necessary that there be a formal agreement or contract of lease before an
unlawful detainer suit may be filed against a possessor by tolerance. Neither is prior physical possession
of the property by plaintiff necessary (Pangilinan vs. Aguilar, 43 SCRA 136; Pharma Industries, Inc. vs.
Pajarillaga, 100 SCRA 339). When consent is withdrawn and owner demands tenants to leave the property,
the owners right of possession is deemed asserted. (Philippine National Bank vs. Animas, 117 SCRA 735).
A person who occupies the land of another at the latters tolerance or permission, without any contract
between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which
a summary action for ejectment is the proper remedy against them. The status of defendant is analogous to
that of a lease continued by tolerance of the owner. In such a case, the unlawful deprivation or withholding
of possession is to be counted from the date of the demand to vacate (Calubayan vs. Pascual, 21 SCRA
146; Canaynay vs. Sarmiento, 79 Phil. 36; Robles vs. San Jose, 52 O.G. 6193; Sarona vs. Villegas, 22
SCRA 1257, citing Montelibano vs. Hingaran Sugar Plantation, 63 Phil. 797, 802-803).
In the case of TERESITA VILLALUZ, CHIT ILAGAN, Spouses ADOR and TESS TABERNA and MARIO
LLAMAS, petitioners, vs. THE HONORABLE COURT OF APPEALS ** and SPOUSES REYNALDO AND
ZENAIDA ANZURES, respondents, [G.R. No. 106214. September 5, 1997], it was held that the one-year
reglamentary period under Section 1, Rule 70 for filing an unlawful detainer case is counted from the time
of the "unlawful deprivation or withholding of possession". Such unlawful deprivation occurs upon expiration
or termination of the right to hold possession. And such right legally expires or terminates upon receipt of
the last demand to vacate [Sy Oh v. Hon. Garcia and Lim Chi v. Hon Garcia, 138 Phil. 777]. Thus: X x x. In
this case, although possession by petitioners (other than Villaluz) lasted beyond March 31, 1988 (the date
they were supposed to vacate the premises in accordance with the agreement between petitioner Villaluz
and private respondents), nevertheless their continued possession from April 1, 1988 up to the time they
received the demand to vacate on February 23, 1989, is considered as possession by tolerance. Said
petitioners are not lessees but their status is analogous to that of a lessee or tenant whose term of lease
has expired but whose occupancy continued by tolerance of the owner. Their right of possession of the said
property stems from their being employees of petitioner Villaluz who only allowed them to occupy the
premises for a certain period. As such, their possession depends upon the possession of petitioner Villaluz.
Having merely stepped into the shoes of the latter, said petitioners cannot acquire superior rights than that
of petitioner Villaluz. It has been ruled, that "the person who occupies the land of another at the latter's
tolerance or permission, without any contract between them, is necessarily bound by an implied promise
that he will vacate the same upon demand," otherwise the remedy of ejectment may be availed of to oust
him from the premises. [ Refugia v. CA, 258 SCRA 347 (1996); Yu v. De Lara, 6 SCRA 785 (1962)]. In such
case, the one year prescriptive period for filing the appropriate action to remedy the unlawful withholding of
possession is to be counted from the date of receipt of the last demand to vacate[Calubayan v. Pascual,
215 SCRA 146] because it is only from that time that possession becomes illegal. 28[ See Vda. de Prieto v.
Reyes, 14 SCRA 430; Canaynay v. Sarmiento, 79 Phil. 36]. Accordingly, since the complaint for ejectment

was instituted on July 12, 1989, or a mere four (4) months from the time of the last demand to vacate, the
same was timely filed within the prescriptive period. X x x.

SECTION 19. Jurisdiction in Civil Cases.Regional Trial Courts shall exercise

exclusive original jurisdiction:
(1) x x x x
(2) In all civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved exceeds Twenty
Thousand Pesos (P20,000.00) or for civil actions in Metro Manila, where such value
exceeds Fifty Thousand Pesos (P50,000.00) except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon
the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;
]G.R. No. 169380. November 26, 2012
The RTC affirmed the MeTC decision of January 27, 2003. It issued its decision17 on October 8, 2003,
reiterating the MeTCs ruling that a case for ejectment was proper. The petitioner, as lessee, had the right to
file the ejectment complaint; the respondents occupied the land by mere tolerance
15 Id. at 137-141. 16 Id. at 44. 17 Id. at 126-136. Decision G.R. No.
169380 6 and their possession became unlawful upon the petitioners demand to vacate on April 28, 1999.
The RTC, moreover, noted that the complaint for ejectment was filed on October 20, 1999, or within one
year after the unlawful deprivation took place. It cited Pangilinan, et al. v. Hon. Aguilar, etc., et al.18 and Yu
v. Lara, et al.19 to support its ruling that a case for unlawful detainer was appropriate. On March 14, 2005,
the Court of Appeals reversed the RTC and MeTC decisions.20 It ruled that the respondents possession of
the land was not by the petitioner or his lessors tolerance. It defined tolerance not merely as the silence or
inaction of a lawful possessor when another occupies his land; tolerance entailed permission from the
owner by reason of familiarity or neighborliness. The petitioner, however, alleged that the respondents
unlawfully entered the property; thus, tolerance (or authorized entry into the property) was not alleged and
there could be no case for unlawful detainer. The respondents allegation that they had been in possession
of the land before the petitioners lessor had acquired it in 1991 supports this finding. Having been in
possession of the land for more than a year, the respondents should not be evicted through an ejectment
case.
The Courts Ruling We find the petition unmeritorious. Unlawful detainer is not the proper remedy for the
present case. The key issue in this case is whether an action for unlawful detainer is the proper remedy.
Unlawful detainer is a summary action for the recovery of possession of real property. This action may be
filed by 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
22 CA rollo, pp. 258-264. 23 Rollo, pp. 36-37. 24 Id. at 7. Decision
G.R. No. 169380 8 possession by virtue of any contract, express or implied. In unlawful detainer, the
possession of the defendant was originally legal, as his possession was permitted by the plaintiff on
account of an express or implied contract between them. However, the defendants possession became
illegal when the plaintiff demanded that the defendant vacate the subject property due to the expiration or
termination of the right to possess under the contract, and the defendant refused to heed such demand. A
case for unlawful detainer must be instituted one year from the unlawful withholding of possession.25
In Sarona, et al. v. Villegas, et al.,28 the Court cited Prof. Arturo M. Tolentinos definition and characterizes
tolerance in the following manner:
27 Rollo, pp. 80-81. 28 131 Phil.
365, 372 (1968). Decision G.R. No. 169380 10 Professor Arturo M. Tolentino states that acts merely
tolerated are those which by reason of neighborliness or familiarity, the owner of property allows his
neighbor or another person to do on the property; they are generally those particular services or benefits

which ones property can give to another without material injury or prejudice to the owner, who permits
them out of friendship or courtesy. He adds that: [t]hey are acts of little disturbances which a person, in
the interest of neighborliness or friendly relations, permits others to do on his property, such as passing
over the land, tying a horse therein, or getting some water from a well. And, Tolentino continues, even
though this is continued for a long time, no right will be acquired by prescription. Further expounding on
the concept, Tolentino writes: There is tacit consent of the possessor to the acts which are merely
tolerated. Thus, not every case of knowledge and silence on the part of the possessor can be considered
mere tolerance. By virtue of tolerance that is considered as an authorization, permission or license, acts of
possession are realized or performed. The question reduces itself to the existence or non-existence of the
permission. [citations omitted; italics supplied] The Court has consistently adopted this position: tolerance
or permission must have been present at the beginning of possession; if the possession was unlawful from
the start, an action for unlawful detainer would not be the proper remedy and should be dismissed. 29
The Court cannot treat an ejectment case as an accion publiciana or accion reivindicatoria. The petitioner
argues that assuming this case should have been filed as an accion publiciana or accion reivindicatoria,
this Court should still
42 CA rollo, p. 147. 43 Rollo, pp. 3-17, 88-92,
173-177. 44 Id. at 95-111. Decision G.R. No. 169380 16 resolve the case, as requiring him to properly refile
the case serves no other ends than to comply with technicalities.45 The Court cannot simply take the
evidence presented before the MeTC in an ejectment case and decide it as an accion publiciana or accion
reivindicatoria. These cases are not interchangeable and their differences constitute far more than mere
technicalities. In Regis, Jr. v. Court of Appeals, 46 we ruled that an action for forcible entry cannot be
treated as an accion publiciana and summarized the reasons therefor. We find these same reasons also
applicable to an unlawful detainer case which bears the same relevant characteristics: On the issue of
whether or not an action for forcible entry can be treated as accion publiciana, we rule in the negative.
Forcible entry is distinct from accion publiciana. First, forcible entry should be filed within one year from the
unlawful dispossession of the real property, while accion publiciana is filed a year after the unlawful
dispossession of the real property. Second, forcible entry is concerned with the issue of the right to the
physical possession of the real property; in accion publiciana, what is subject of litigation is the better right
to possession over the real property. Third, an action for forcible entry is filed in the municipal trial court and
is a summary action, while accion publiciana is a plenary action in the RTC. [italics supplied] The cause of
action in ejectment is different from that in an accion publiciana or accion reivindicatoria. An ejectment suit
is brought before the proper inferior court to recover physical possession only or possession de facto, not
possession de jure. Unlawful detainer and forcible entry cases are not processes to determine actual title to
property. Any ruling by the MeTC on the issue of ownership is made only to resolve the issue of
possession, and is therefore inconclusive.4
Because they only resolve issues of possession de facto, ejectment actions are summary in nature, while
accion publiciana (for the recovery
45 Id. at 16. 46 G.R. No. 153914,
July 31, 2007, 528 SCRA 611, 620. 47 A. Francisco Realty and Development Corporation v. CA, 358 Phil.
833, 841-842; and Spouses Refugia v. CA, 327 Phil. 982, 1004 (1996). Decision G.R. No. 169380 17 of
possession) and accion reivindicatoria (for the recovery of ownership) are plenary actions.48 The purpose
of allowing actions for forcible entry and unlawful detainer to be decided in summary proceedings is to
provide for a peaceful, speedy and expeditious means of preventing an alleged illegal possessor of
property from unjustly taking and continuing his possession during the long period it would take to properly
resolve the issue of possession de jure or ownership, thereby ensuring the maintenance of peace and
order in the community; otherwise, the party illegally deprived of possession might take the law in his hands
and seize the property by force and violence.49 An ejectment case cannot be a substitute for a fullblown
trial for the purpose of determining rights of possession or ownership. Citing Mediran v. Villanueva, 50 the
Court in Gonzaga v. Court of Appeals51 describes in detail how these two remedies should be used: In
giving recognition to the action of forcible entry and detainer the purpose of the law is to protect the person
who in fact has actual possession; and in case of controverted right, it requires the parties to preserve the
status quo until one or the other of them sees fit to invoke the decision of a court of competent jurisdiction
upon the question of ownership. It is obviously just that the person who has first acquired possession

should remain in possession pending [the] decision; and the parties cannot be permitted meanwhile to
engage in a petty warfare over the possession of the property which is the subject of dispute. To permit this
would be highly dangerous to individual security and disturbing to social order. Therefore, where a person
supposes himself to be the owner of a piece of property and desires to vindicate his ownership against the
party actually in possession, it is incumbent upon him to institute an action to this end in a court of
competent jurisdiction; and he [cannot] be permitted, by invading the property and excluding the actual
possessor, to place upon the latter the burden of instituting an [action] to try the property right. [italics
supplied] Thus, if we allow parties to file ejectment cases and later consider them as an accion publiciana
or accion reivindicatoria, we would encourage parties to simply file ejectment cases instead of plenary
actions. Courts would then decide in summary proceedings cases which the rules intend to be resolved
through full-blown trials. Because these summary proceedings will have
48 Custodio v. Corrado, 479 Phil. 415, 427 (2004). 49 Spouses
Refugia v. CA, supra note 47, at 1007. 50 37 Phil. 752, 761 (1918). 51 G.R. No. 130841, February 26,
2008, 546 SCRA 532, 540-541. Decision I g C!.R. No. I ()9~RO to tackle complicated issues requiring
extensive proof, they would no longer be expeditious and would no longer serve the purpose for which they
were created. Indeed, we cannot see how the resulting congestion of cases, the hastily and incorrectly
decided cases, and the utter lack of system would assist the courts in protecting and preserving property
rights.

On the basis of this provision, the petitioners argue that the respondents cause of action whether for
forcible entry or for unlawful detainer had prescribed when the ejectment complaint was filed on April 5,
2000. They point out that the last demand letter (the reckoning date for unlawful detainer 15) was dated Aug.
26, 1998 and was received by the petitioners on August 31, 1998; the complaint was only filed on April 5,
2000 or more than 1 year after August 31, 1998. On the other hand, if the action had been for forcible entry,
the prescriptive period commenced on the discovery of the usurpation and the computation period would
have commenced either during the relocation survey of the lots or in July 1998 when the respondents were
prevented from fencing the disputed property.
The one-year period within which to commence an ejectment proceeding is a prescriptive period as well as
a jurisdictional requirement. Hence, Article 1155 of the Civil Code on the manner of reckoning the
prescriptive period must necessarily come into play. Under this Article, the filing of a complaint in court
interrupts the running of prescription of actions. As an action for unlawful detainer, the one-year prescription
period started running after August 31, 1998 the date of receipt of the respondents demand letter. The
period ran for almost two months until it was interrupted on October 20, 1998 when the respondents filed
their ejectment complaint. This complaint, however, was dismissed on December 8, 1999. Upon this
dismissal, the prescriptive period again began to run for about four months when another interruption
intervened the revival of the complaint on April 5, 2000. Evidently, under these undisputed facts, the
period when the prescriptive period effectively ran does not add up to the one-year prescriptive period that
would jurisdictionally bar the ejectment case.

VICTORIANO M. ENCARNACION, G.R. No. 169793

[WHETHER] THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROPER

ACTION IN THIS CASE IS ACCION PUBLICIANA AND NOT UNLAWFUL DETAINER AS
DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT FILED BY PETITIONER.[12]

On the other hand, if the dispossession lasted for more than one year, the proper action to be filed is
an accion publiciana which should be brought to the proper Regional Trial Court.
After the lapse of the one-year period, the suit must be commenced in the Regional Trial
Court via an accion publiciana which is a suit for recovery of the right to possess. It is an ordinary civil
proceeding to determine the better right of possession of realty independently of title. It also refers to an
ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the
unlawful withholding of possession of the realty. [17]
Previously, we have held that if the owner of the land knew that another person was occupying his property
way back in 1977 but the said owner only filed the complaint for ejectment in 1995, the proper action would
be one for accion publiciana and not one under the summary procedure on ejectment.As explained by the
Court:
We agree with the Court of Appeals that if petitioners are indeed the owners of the
subject lot and were unlawfully deprived of their right of possession, they should present
their claim before the regional trial court in an accion publiciana or an accion
reivindicatoria, and not before the metropolitan trial court in a summary proceeding for
unlawful detainer or forcible entry. For even if one is the owner of the property, the
possession thereof cannot be wrested from another who had been in physical or material
possession of the same for more than one year by resorting to a summary action for
ejectment.[18]
Hence, we agree with the Court of Appeals when it declared that:
The respondents actual entry on the land of the petitioner was in 1985 but it was
only on March 2, 2001 or sixteen years after, when petitioner filed his ejectment case. The
respondent should have filed an accion publiciana case which is under the jurisdiction of
the RTC.
However, the RTC should have not dismissed the case.
Section 8, Rule 40 of the Rules of Court provides:
SECTION 8. Appeal from orders dismissing case without trial;
lack of jurisdiction. If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional Trial Court
may affirm or reverse it, as the case may be. In case of affirmance and the
ground of dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try the case on

the merits as if the case was originally filed with it. In case of reversal, the
case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal
shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without
prejudice to the admission of amended pleadings and additional evidence
in the interest of justice.