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 When consent is withdrawn and owner demands tenants to leave the property,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 owner’s right of possession is deemed asserted. (Philippine National Bank vs. Animas, 117 SCRA 735).
A 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 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

Regional Trial Courts shall exercise exclusive original jurisdiction: (1) x x x x (2) In all civil actions which involve the title to. Tolentino’s definition and characterizes “tolerance” in the following manner: 27 Rollo. X x x. or any interest therein. Decision G. The respondents’ allegation that they had been in possession of the land before the petitioner’s lessor had acquired it in 1991 supports this finding.. 1999.28 the Court cited Prof. and the defendant refused to heed such demand.R. tolerance entailed permission from the owner by reason of familiarity or neighborliness. tolerance (or authorized entry into the property) was not alleged and there could be no case for unlawful detainer. ]G. moreover. and Municipal Circuit Trial Courts. Municipal Trial Courts. Jurisdiction in Civil Cases. as his possession was permitted by the plaintiff on account of an express or implied contract between them.000. et al. 372 (1968). Decision G. 169380 10 Professor Arturo M.R. alleged that the respondents unlawfully entered the property. No. 2005. Decision G. original jurisdiction over which is conferred upon the Metropolitan Trial Courts. 17 Id. 2012 The RTC affirmed the MeTC decision of January 27. Aguilar.000. Unlawful detainer is a summary action for the recovery of possession of real property. On March 14. the same was timely filed within the prescriptive period.R. 16 Id. 1989. Villegas.R. 365. 80-81. the defendant’s 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. 36-37. No. thus. 169380 6 and their possession became unlawful upon the petitioner’s demand to vacate on April 28. Having been in possession of the land for more than a year. Unlawful detainer is not the proper remedy for the present case. the possession of the defendant was originally legal. However. Arturo M. had the right to file the ejectment complaint. et al. 24 Id. etc. the respondents occupied the land by mere tolerance 15 Id. where such value exceeds Fifty Thousand Pesos (P50. It issued its decision17 on October 8. et al. This action may be filed by a lessor. or a mere four (4) months from the time of the last demand to vacate.18 and Yu v. or within one year after the unlawful deprivation took place. 28 131 Phil. reiterating the MeTC’s ruling that a case for ejectment was proper. No. at 7. vendee. however. It defined tolerance not merely as the silence or inaction of a lawful possessor when another occupies his land. 2003. The petitioner. the owner of property allows his neighbor or another person to do on the property. as lessee.. et al. 169380. where the assessed value of the property involved exceeds Twenty Thousand Pesos (P20. v. et al.00) except actions for forcible entry into and unlawful detainer of lands or buildings.25 In Sarona. 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. A case for unlawful detainer must be instituted one year from the unlawful withholding of possession. It cited Pangilinan. The Court’s Ruling We find the petition unmeritorious. the respondents should not be evicted through an ejectment case. Tolentino states that acts merely tolerated are “those which by reason of neighborliness or familiarity. pp. at 126-136. 258-264. real property. they are generally those particular services or benefits . pp. at 137-141. In unlawful detainer. November 26. Hon. The key issue in this case is whether an action for unlawful detainer is the proper remedy.19 to support its ruling that a case for unlawful detainer was appropriate.20 It ruled that the respondents’ possession of the land was not by the petitioner or his lessor’s tolerance. pp. Lara. or possession of. No. 1999. vendor. 2003.was instituted on July 12. the Court of Appeals reversed the RTC and MeTC decisions. 23 Rollo. 169380 8 possession by virtue of any contract. at 44. The RTC.00) or for civil actions in Metro Manila. noted that the complaint for ejectment was filed on October 20. v. express or implied. SECTION 19. The petitioner.

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

if we allow parties to file ejectment cases and later consider them as an accion publiciana or accion reivindicatoria. On the basis of this provision. This complaint. by invading the property and excluding the actual possessor. 415. the prescriptive period again began to run for about four months when another interruption intervened – the revival of the complaint on April 5. 26. Because these “summary” proceedings will have 48 Custodio v. 49 Spouses Refugia v. 1998. [italics supplied] Thus. To permit this would be highly dangerous to individual security and disturbing to social order. 1998 – the date of receipt of the respondents’ demand letter. if the action had been for forcible entry. Evidently. The one-year period within which to commence an ejectment proceeding is a prescriptive period as well as a jurisdictional requirement. 479 Phil. Courts would then decide in summary proceedings cases which the rules intend to be resolved through full-blown trials. was dismissed on December 8. 1998 when the respondents filed their ejectment complaint. Article 1155 of the Civil Code on the manner of reckoning the prescriptive period must necessarily come into play. The period ran for almost two months until it was interrupted on October 20. the filing of a complaint in court interrupts the running of prescription of actions. No. They point out that the last demand letter (the reckoning date for unlawful detainer 15) was dated Aug. we cannot see how the resulting congestion of cases. under these undisputed facts. the one-year prescription period started running after August 31.should remain in possession pending [the] decision. Indeed. 752. Decision I g C!. Corrado. On the other hand. and the utter lack of system would assist the courts in protecting and preserving property rights. 50 37 Phil. however.R. 2000. . 1998. 51 G. we would encourage parties to simply file ejectment cases instead of plenary actions. supra note 47. 427 (2004). No. 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. 2000 or more than 1 year after August 31. 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. at 1007. Upon this dismissal. 761 (1918). 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. and he [cannot] be permitted. 1999. 2008. 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. I ()9~RO to tackle complicated issues requiring extensive proof. the hastily and incorrectly decided cases. 546 SCRA 532. CA. 1998 and was received by the petitioners on August 31. they would no longer be expeditious and would no longer serve the purpose for which they were created. Under this Article. to place upon the latter the burden of instituting an [action] to try the property right. As an action for unlawful detainer. 2000. Hence. the complaint was only filed on April 5. 540-541. 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. February 26. it is incumbent upon him to institute an action to this end in a court of competent jurisdiction.R. 130841. Therefore.

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. G. the proper action to be filed is an accion publiciana which should be brought to the proper Regional Trial Court. as the case may be. 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. 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. lack of jurisdiction. 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. the proper action would be one for accion publiciana and not one under the summary procedure on ejectment. if it has jurisdiction thereover. 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. The respondent should have filed an accion publiciana case which is under the jurisdiction of the RTC. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter. Section 8. the Regional Trial Court may affirm or reverse it.[12] On the other hand. 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. when petitioner filed his ejectment case. Rule 40 of the Rules of Court provides: SECTION 8. 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 RTC should have not dismissed the case.VICTORIANO M. shall try the case on . No. 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. ENCARNACION. they should present their claim before the regional trial court in an accion publiciana or an accion reivindicatoria. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. However. After the lapse of the one-year period. [17] Previously.[18] Hence. if the dispossession lasted for more than one year. Appeal from orders dismissing case without trial.R. the Regional Trial Court. 2001 or sixteen years after. If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits.

In case of reversal. without prejudice to the admission of amended pleadings and additional evidence in the interest of justice.the merits as if the case was originally filed with it. but shall decide the case in accordance with the preceding section. . 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.