Tolerated possession

Should the owner of a property deprived of its possession allege in his complaint for ejectment prior physical possession before said complaint can prosper? This is the question once more raised in this case of Mr. and Mrs. Casas.

The spouses Casas are the true and lawful owners of a 251 square lot covered by TCT No. 11399 located at San Mateo Rizal. Sometime in 1968, they allowed Pacio to build his house on a 60 square meter portion of the lot. According to the spouses they allowed Pacio to build thereon a temporary shelter of light materials out of compassion when Pacio’s house was destroyed by a strong typhoon. But without their consent, Pacio constructed a house of concrete materials. Pacio, on the other hand claimed that the Casas couple allowed him to build his house on the lot provided he would guard the premises to prevent land-grabbers and squatters from occupying the area as they were abroad.

About 24 years later or in 1992, the spouses through their attorney-in-fact, Alicia, asked Pacio to vacate the lot. This was followed by repeated verbal demands but to no avail. Possible settlement at the Barangay level also failed. So on August 12, 1999, the spouses Casas through Alicia filed with the Municipal Trial Court (MTC) a complaint for unlawful detainer against Pacio.

On September 22, 2000 the MTC rendered a decision in favor of the spouses and ordered Pacio and/or all persons claiming rights under him to vacate the property and surrender possession thereof to the spouses as well as pay P500 monthly rental from the filing of the complaint on August 12, 1999. The RTC and the CA affirmed this decision. Still, Pacio questioned the decision. He contended that the trial court had no jurisdiction over the case as there was no allegation in the complaint that the Casas couple had prior physical possession of the lot and that they were ousted therefrom by force, threat, strategy or stealth. Pacio also claimed that he was a builder in good faith so he is entitled to reimbursement for the expenses in the construction of his house.

Was Pacio correct?

No.

Prior physical possession is not always an indispensable condition in an ejectment case. There are two kinds of ejectment, forcible entry and unlawful detainer. In forcible entry, the defendant deprives plaintiff of physical possession of his land or building by means of force, threat, strategy or stealth. In this light, plaintiff must allege and prove prior physical possession. In unlawful detainer, the defendant unlawfully withholds possession after the expiration or termination of his right thereto under any contract, express or implied. What the spouses Casas filed is a complaint for unlawful detainer. Prior physical possession is not required. Hence the spouses need not allege the same in their complaint.

Pacio’s possession of the land was by mere tolerance of the spouses. One whose stay is merely tolerated becomes a deforciant occupant, or one who wrongfully keeps the owner of the land out of possession, the moment he is required to leave. He is bound by his implied promise, in the absence of a contract,that he will vacate upon demand. And considering that he occupies the land by mere tolerance, he is aware that his occupation of the same may be terminated by the spouses any time. So he is not a builder in good faith (Del Rosario vs. Spouses Manuel etc. G.R. 1533652, January 16, 2004).

* * *

E-mail: [email protected]