The niece stays

Lix filed a complaint for unlawful detainer praying, among others, that Ems be ordered to vacate the premises and to immediately surrender peaceful possession thereof to her.

Lix alleged in his complaint that he is the registered owner of a parcel of land. From the time of the issuance of the title in his favor, Lix had allowed Ems to remain on the subject property considering that the latter is his niece, but with the understanding that should he decide to take it back, petitioner would peacefully surrender and vacate it.

Lix further alleged that he sent a letter addressed to Ems informing her that the authority previously granted to Ems to remain in the subject property was being withdrawn. Ems was given 15 days from receipt of the letter to vacate the subject property and to peacefully surrender it to him. Despite receipt of the letter and given the expiration of the period granted to Ems, the latter refused to vacate and surrender the peaceful possession of the subject property to him; thus, depriving him of the enjoyment of his property.

In her defense, Ems claimed that the subject property has been registered under the name of her father with the Office of the Assessor of the Province of Rizal and for which reason Tax Declaration was issued in the latter’s name.

She bought the property from her father and that the Deed was duly notarized on even date. Consistent with her claim of ownership, she had been in possession of the property for decades, introduced improvements thereon, and had been religiously paying the taxes.

Years later, Ems found out that the subject property was already titled under Liz’s name notwithstanding, petitioner’s purchase of the subject property in 1983 and the latter’s continuous possession of it prior to its purchase up to the present.

Q: Can Ems be ordered to vacate the subject property and surrender the possession thereof to Lix?

A: No. In a complaint for unlawful detainer, the following must be alleged:

(1) initially, possession of the 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 latter’s 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.

A perusal of the complaint and the available records of the case, it appears that Lix failed to prove the first recital. He utterly failed to substantiate his claim that he merely tolerated Ems’ possession of the subject property especially the fact that he tolerated his niece to possess the property even before the property was titled to him.

It must be noted that with Lix’s averment that Ems’ possession was by his mere tolerance, the acts of tolerance must be proved, for a bare allegation of tolerance will not suffice. At the very least, Lix should show the overt acts indicative of his tolerance, but he miserably failed to adduce evidence to prove tolerance in this case.

Q: Was the title issued under the name of Liz sufficient enough for the court to eject Ems from the property?

A: No. It is an elementary principle of civil law that the owner of real property is entitled to the possession thereof as an attribute of his or her ownership.

In fact, the holder of a Torrens Title is the rightful owner of the property thereby covered, and is entitled to its possession. This notwithstanding, the owner cannot simply wrest possession thereof from whoever is in actual occupation of the property.

Rather, to recover possession, the owner must first resort to the proper judicial remedy, and thereafter, satisfy all the conditions necessary for such action to prosper. Lix must show that the possession was initially lawful, and thereafter, establish the basis of the lawful possession.

In the same manner, should Lix claim that Ems’ possession was by his tolerance, then his acts of tolerance must be proved as a bare allegation of tolerance will not suffice. There must be, at least, showing of Lix’s overt acts indicative of his or his predecessor’s permission granted to Ems to occupy the subject property. Failure in which, Ems’ possession could very well be deemed illegal from the beginning.

Thus, Lix’s action for unlawful detainer must necessarily fail. Corollary, the complaint may not be treated as an action for forcible entry in the absence of averments that the entry in the subject property had been effected through force, intimidation, threats, strategy or stealth.

(Source: Nabo vs. Buenviaje, G.R. No. 224906, October 07, 2020)

The author is Dean, Lyceum of the Philippines University; Chairman of Philippine Association of Law Schools; founder of Mawis Law Office