Republic of the Philippines

Metropolitan Trial Court

Branch 68
Pasig City

GIANA MAE G. SANCHEZ

Plaintiff,
Civil Case No. 12345
-versus- FOR: EJECTMENT

JUAN DELA CRUZ

Defendant
x --------------------------------------x

MEMORANDUM
For the Defendant

COMES NOW THE DEFENDANT, through the

undersigned counsel, unto this Honorable Court most
respectfully submits and presents this Memorandum in
the above-titled case and aver that:

THE PARTIES

1. Plaintiff, Giana Mae G. Sanchez, of legal age, single, and

a resident of 672 Unit C Violeta St. Villa Verde Homes
Sta. Monica, Quezon City, where she may be served with
legal processes and notices issued by this Honorable
Court;

2. Defendant, Juan Dela Cruz, of legal age, single and a

resident of Lot 1 Blk 2 Timawa St., Davao City, and may
be served with legal processes and other judicial notices
thereto.

1
 STATEMENT OF THE CASE

1. On September 1, 2017, plaintiff filed a Complaint for

Ejectment against herein defendant.

2. On February 14, 2018, defendant received summons issued by

the Honorable Court to file an answer.

3. On March 8, 2018, defendant filed his answer against the

plaintiff.

4. On April 19, 2012, preliminary conference was held in the

presence of the plaintiff, defendant, and their respective
counsels.

5. Accordingly, after presentation of evidences, the Honorable

Court ordered the parties to submit their respective
Memoranda fifteen days (15) days from notice, otherwise, the
case is deemed submitted for decision.

STATEMENT OF FACTS

1. The plaintiff owned a three-storey apartment located at 305 Lt.

J. Francisco St., Krus na Ligas, Diliman, Pasig City covered by
TCT No. 123456789.

2. On January 1, 2016, plaintiff leased the first storey of the

apartment to defendant for one (1) year with a monthly rental
of twelve thousand pesos (Php. 12,000.00) payable within the
first seven (7) days of each month as shown in the lease
contract. (Annex A)

3. Subsequently, defendant started making improvements on the

leased premises where he will have his rice-selling business

2
 wherein he spent forty thousand pesos (Php. 40,000.00) for
the construction and labor.

4. On June 2016, the defendant started defaulting in his

monthly payments.

5. Defendant, after repeated demands, refused to pay the rental

arrears; and refused to vacate the premises and continued to
occupy the same. On August 1, 2016 a final demand letter was
sent but still refused to leave the same. Hence, plaintiff
resulted to seek judicial relief.

STATEMENT OF ISSUES

1. Whether or not the plaintiffs title over the subject

property is void.
2. Whether or not the Regional Trial Court has the
jurisdiction over the case.
3. Whether or not the plaintiff is a builder in good faith
hence he must be reimbursed for what he had spent on the
leased premises.

ARGUMENTS

1. The plaintiffs title over the subject property is void.

2. Regional Trial Court has the jurisdiction over the case.
3. The plaintiff is a builder in good faith hence he must
be reimbursed for what he had spent on the leased premises.

DISCUSSION

1. The Transfer Certificate Title (TCT), an attestation to the Deed

of Absolute Sale, is void under Article 1409 of the Civil Code
which states that the following contracts are void and
inexistent, to wit:
3
 Article 1409. The following contracts are inexistent and void
from the beginning:
(a) Those whose cause, object or purpose is contrary to law,
morals, good customs, public order or public policy;
(b) Those which are absolutely simulated or fictitious;
(c) Those whose cause or object did not exist at the time of the
transaction;
(d) Those whose object is outside the commerce of men;
(e) Those which contemplate an impossible service;
(f) Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained;
(g) Those expressly prohibited by law.

These contracts cannot be ratified. Neither can the right to set

up the defense of illegality be waived.

The abovementioned provision uphold the contention

that the Transfer Certificate Title is void as it falls under those
expressly prohibited by law.

In the case of Fuentes vs. Roca, G.R No. 178902, April

21, 2010, the sale of conjugal property done by Tarciano Roca
without the consent of his wife Rosario Roca is completely void
under Article 124 which states that:

Art. 124. x x x In the event that one spouse is

incapacitated or otherwise unable to participate in
the administration of the conjugal properties, the
other spouse may assume sole powers of
administration. These powers do not include the
powers of disposition or encumbrance which must
have the authority of the court or the written consent
of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be
void. x x x

Under the provisions of the Civil Code governing

contracts, a void or inexistent contract has no force and effect

4
 from the very beginning. And this rule applies to contracts
that are declared void by positive provision of law, as in the
case of a sale of conjugal property without the other spouses
written consent. A void contract is equivalent to nothing and is
absolutely wanting in civil effects. It cannot be validated either
by ratification or prescription.

Therefore, the plaintiffs action for ejectment has no

cause of action since she is not the rightful owner of the
subject property based on the fact that the Transfer Certificate
Title No. 1234456789 is void ab initio.

2. Under the Rules of Court, lessors against whom possession of

any land is unlawfully withheld after the expiration of the right
to hold possession may by virtue of any express or implied
contract, and within one (1) year after the unlawful deprivation
bring an action in the municipal trial court against the
person unlawfully withholding possession, for restitution of
possession with damages and costs. Section 1 of Rule 70 of
the Rules of Court states that:

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.

5
 Whether or not plaintiffs action for unlawful detainer
was brought within one (1) year after the unlawful withholding
of possession will determine whether it was properly filed with
the Metropolitan Trial Court.

In Valdez v. Court of Appeals, G.R. No. 132424, May 2,

2006, the Court ruled that where the complaint did not satisfy
the jurisdictional requirement of a valid cause for unlawful
detainer, the municipal trial court had no jurisdiction over the
case. Thus:
To justify an action for unlawful detainer, it is essential that
the plaintiffs supposed acts of tolerance must have been
present right from the start of the possession which is later
sought to be recovered. Otherwise, if the possession was
unlawful from the start, an action for unlawful detainer would
be an improper remedy.

In Republic vs. Sunvar Realty Development Corp.,

G.R. No. 194880, June 20, 2012, the petitioners argue that
the one (1) year period should be counted from respondent
Sunvars receipt on February 3, 2009 of the Final Notice to
Vacate, then their complaint was timely filed within the one (1)
year period and appropriately taken cognizance of by the
MeTC. However, if the reckoning period is pegged from the
expiration of the main lease contract and/or sublease
agreement, then petitioners proper remedy should have been
an accion publiciana to be filed with the Regional Trial Court.

In the case at bar, it is evident that the final demand

letter was sent on August 1, 2016 and the complaint was filed
on September 1, 2017. At the time of the filling of the
complaint, more than one year had elapsed since defendants
possession has become illegal, the action should be brought to
the 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.

6
3. Defendant is a builder in good faith. Thus, he is entitled to be
reimbursed for what he had spent on the leased premises.
When a person builds in good faith on the land of another,
Article 448 of the Civil Code governs. Said provision provides
that:

ART. 448. The owner of the land on which

anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own
the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 548, or to
oblige the one who built or planted to pay the price of
the land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to
buy the land if its value is considerably more than
that of the building or trees. In such case, he shall
pay reasonable rent, if the owner of the land does not
choose to appropriate the building or trees after
proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the
court shall fix the terms thereof.

In Briones vs. Macabagdal, G.R. No. 150666, August 3,

2010, it is emphasized that the builder in good faith can
compel the landowner to make a choice between appropriating
the building by paying the proper indemnity or obliging the
builder to pay the price of the land. The choice belongs to the
owner of the land, a rule that accords with the principle of
accession, i.e., that the accessory follows the principal and not
the other way around. However, even as the option lies with
the landowner, the grant to him, nevertheless, is preclusive.

Moreover, petitioners have the right to be indemnified for

the necessary and useful expenses they may have made on the
subject property. Articles 546 and 548 of the Civil
Code provide,

ART. 546. Necessary expenses shall be

refunded to every possessor; but only the possessor
in good faith may retain the thing until he has been
reimbursed therefor.

7
 Useful expenses shall be refunded only to the
possessor in good faith with the same right of
retention, the person who has defeated him in the
possession having the option of refunding the amount
of the expenses or of paying the increase in value
which the thing may have acquired by reason
thereof.

ART. 548. Expenses for pure luxury or mere

pleasure shall not be refunded to the possessor in
good faith; but he may remove the ornaments with
which he has embellished the principal thing if it
suffers no injury thereby, and if his successor in the
possession does not prefer to refund the amount
expended.

In Rosales vs. Castelltort, G.R. No. 157044, October 5,

2005, it is stated that if the parties cannot come to terms over
the conditions of the lease, the court must fix the terms
thereof. The landowner cannot refuse to exercise either option
and compel instead the owner of the building to remove it from
the land.

x x x Generally, Article 448 of the Civil Code

provides that the payment of reasonable rent should
be made only up to the date appellees serve notice of
their option as provided by law upon the appellants
and the court a quo; that is, if such option is for
appellees to appropriate the encroaching structure. In
such event, appellants would have a right to retain
the land on which they have built in good faith until
they are reimbursed the expenses incurred by them.
This is so because the right to retain the
improvements while the corresponding indemnity is
not paid implies the tenancy or possession in fact of
the land on which it is built, planted or sown.

Therefore, the plaintiff cannot compel the defendant to vacate

the premises without applying the abovementioned provisions
taking into consideration the fact that the Transfer Certificate
Title No. 123456789 is void.
8
 CONCLUSION

With the laws and jurisprudence presented, the

defendant, through his counsel believes that the plaintiff has
no cause of action in filing the suit based on void Deed of
Absolute Sale, attested by Transfer Certificate Title No.
123456789; that the one (1) year period within which to file
the action at MTC has expired. Hence, the proper court with
jurisdiction should be RTC; and that the defendant is
considered as a builder in good faith.

PRAYER

WHEREFORE, premises considered, defendant

respectfully prays to the honorable court that judgment be
rendered in his favor as follows:

1. An order be issued by this Honorable Court

dismissing the Complaint for the title is void;

2. Judgment be rendered dismissing this case due

to lack of jurisdiction of this Court which should be brought to
the Regional Trial Court;

3. Ordering the plaintiff to pay the improvements

amounting to forty thousand pesos (P 40,000.00) made in the
leased premises.

Some other relief and remedies as may be deemed just

and equitable under the premises are likewise prayed for.

Pasig City, 9th day of February, 2017.

9
 SERTORI & GILBERT
LAW
OFFICES
Counsel of the Defendant
19th Floor Suite 1901 AIC
Burgundy Empire Tower
ADB Avenue, cor. Sapphire
& Garnet Rds., Ortigas
Center 1605 Pasig City,
Metro Manila, Philippines

By:

EMMA GILBERT
Roll No. 12345
IBP O.R. No. 123456
Pasig Chapter
PTR No. 1957908G

EXPLANATION

In compliance with Section 11, Rule 13 of the Revised

Rules of Court, personal service of copy of Trial Memorandum
could not be effected except by service through registered mail
due to distance and personnel constraints.

EMMA GILBERT

Copy Furnished:(By Registered Mail)

ATTY. ISABEL B. HARTLEY

Counsel of the Plaintiff
7th Floor, Xavier Building,
Pasig City

10
11