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169. Felicitacion Borbajo vs. Hidden View Homeowners Inc.

, 450 SCRA 315

capacities, respondents.



Before this Court is a Rule 45 petition assailing the Decision [1] dated 21 September 2001 of the Court of Appeals which
reversed the Decision[2] dated 14 September 1999 of the Regional Trial Court (RTC) of Cebu City, Branch 58.

The factual antecedents are as follows:

Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina Solon, Helen Solon and Vicente Solon, Jr. (the Solons) were the
registered owners of a parcel of agricultural land (Lot 10183-A), covering an area of 13,910 square meters situated at
Barangay Bacayan, Cebu City as evidenced by Transfer Certificate of Title (TCT) No. 73709 of the Register of Deeds of Cebu
City.[3] At the instance of Bontuyan, the property was surveyed on 19 May 1991 to convert it into a subdivision. On 6 June
1991, the corresponding subdivision plan, showing three (3) road lots as such, was submitted to the Cebu Office of the
Department of Environment and Natural Resources (DENR). On 24 July 1991, the Regional Technical Director of the DENR,
Lands Management Sector, Region Office VII, in Cebu, approved the subdivision plan. [4] Meanwhile, in his own behalf and as
attorney-in-fact of the Solons and following the subdivision scheme in the plan, Bontuyan sold the resulting lots to different
individuals,[5] as evidenced by the Deed of Absolute Sale[6] dated 18 June 1991.

Among the lots sold are the ones which later became the subject of this case, the three (3) road lots. The road lots were
sold to petitioner Felicitacion B. Borbajo, married to Danilo S. Borbajo, and Prescillana B. Bongo (Bongo), married to Patricio P.
Bongo.[7]However, they obtained the titles to the lots more than a month later on 30 July 1991. [8]

Using the advance payments of his lot purchasers, Bontuyan proceeded to develop a subdivision which was later
named Hidden View Subdivision I by its residents and homeowners.[9] Later, he applied for and secured from the Housing and
Land Use Regulatory Board (HLURB) a License to Sell[10] dated 29 July 1991.

Borbajo also decided to develop into a subdivision the other properties adjacent to Hidden View Subdivision I which she
acquired. Thus, she applied for and received SSA 674-5-94 issued by the Cebu City Planning and Development Department,
covering the parcel of land embraced by TCT No. 127642, to be subdivided into twenty-three (23) lots.[11] She named this new
subdivision ST Ville Properties. On 29 July 1994, she secured Certificate of Registration No. 05005 for the ST Ville
Properties project and a License to Sell the same from the HLURB. She also secured a Certificate of Registration dated 18 August
1994 for another subdivision project called Hidden View Subdivision II from the HLURB, with the corresponding License to Sell
issued on 16 August 1994. The two new subdivision projects were located at the back of Hidden View Subdivision I.

The residents and homeowners of Hidden View Subdivision I heard reports to the effect that Borbajo had purchased the
entire subdivision from Bontuyan through an oral agreement. They also heard that they have no right to use the road lots,
since the lots have already been registered in Borbajos name. As a consequence, the Hidden View Homeowners, Inc. invited
Borbajo to a meeting. When confronted by the homeowners about her claim that she had bought the subdivision from
Bontuyan, Borbajo confirmed her claim of ownership over the subdivision and the road lots. She also told them that they have
no right regarding the road right-of-way.[12]

The incident prompted the homeowners of Hidden View Subdivision I to inquire with the HLURB about the validity of the
registration of the subdivision road lots in the name of Borbajo. They also asked whether she had the necessary documents for
the development of Hidden View Subdivision II and ST Ville Properties. In a letter[13] dated 17 March 1997, HLURB Regional
Officer Antonio Decatoria, Sr. replied that under the law the owner or developer of the subdivision should have legal title or
right over the road lots of the subdivision and that if the title or right is in the name of other persons it follows that there is
failure to comply with the requirements of the law. The HLURB Officer pointed out that Hidden View Subdivision II and ST Ville
Properties had not filed an application for registration and license to sell with the HLURB. [14]

On 10 August 1997, the homeowners caused the construction of a guardhouse at the entrance of Hidden View Subdivision
I and hired the services of a security guard to prevent unauthorized persons and construction vehicles from passing through
their subdivision. The measures adversely affected the residents of the subdivisions at the back, as well as Borbajo herself
since her delivery trucks and heavy equipment used in the construction of her housing projects then on-going had been
effectively prevented from passing through the road lots. [15]

On 28 August 1997, Borbajo filed before the RTC of Cebu City, Branch 58, an action for damages and injunction against
Hidden View Homeowners, Inc., spouses Marcelina A. Sarcon and Ely D. Sarcon, Roberto Alvarez and Corazon Nombrado and
Gilbert Andrales (respondents herein). Borbajo prayed for the issuance of a temporary restraining order (TRO) directing
respondents to maintain the status quo and to desist from preventing her delivery trucks and other construction vehicles, and
her construction workers, from passing through the road lots, and, after hearing on the merits, that judgment be rendered
making the restraining order or preliminary injunction permanent and ordering the defendants to pay damages.[16]
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The trial court issued a TRO effective for seventy-two (72) hours. After due hearing, it also granted Borbajos application
for a writ of preliminary injunction. It denied respondents motion to dismiss on the ground that it is the HLURB which has
jurisdiction over the case.[17]

After trial, the trial court rendered its decision dated 14 September 1999, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered enjoining the defendants to close [sic] the road lots in
question, hence, making the injunction permanent, subject to the right of the defendants to regulate the passage thereof by the
plaintiff and the general public; and directing the plaintiff to donate the road lots in question to the government of Cebu City.
No pronouncement as to any damages and as to costs.


On appeal, the Court of Appeals reversed the lower court decision. The decretal portion of the appellate courts decision
dated 21 September 2001 reads:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision in Civil Case No. CEB-
20796 is hereby REVERSED and SET ASIDE and a new one is hereby rendered DISMISSING the complaint. The counterclaim of
defendants-appellants is likewise dismissed for lack of legal and factual bases.

No pronouncement as to costs.


Undaunted, Borbajo elevated the case to this Court.

In her petition, Borbajo imputes error to the appellate court (a) in reversing the decision of the trial court which declared
her to be the developer of Hidden View Subdivision I, (b) in finding that she had fraudulently secured the registration of the
three (3) road lots, and (c) in declaring that she is not entitled to the injunctive relief. [20]

Borbajo contends that the appellate court erred in reversing the finding of the RTC that she is the developer of Hidden
View Subdivision I. According to her, and as borne out by her testimony before the RTC, she was the true developer of Hidden
View Subdivision I even though the License to Sell was issued in the name of Bontuyan. The appellate court allegedly violated
prevailing jurisprudence when it held that she fraudulently secured the registration of the three (3) road lots since a certificate
of title cannot be collaterally attacked except in direct proceedings instituted for that purpose. In fact, Hidden View
Homeowners, Inc. has filed a separate case for annulment of title against Borbajo which is now pending before Branch 9 of the
RTC of Cebu City. Further, she claims that she is entitled to the injunctive relief considering that she is the registered owner of
these road lots in question and, hence, she has a right in esse which deserves legal protection.[21]

On the other hand, respondents argue that the sale of the road lots made by Bontuyan in favor of Borbajo was illegal and
contrary to the provisions of Presidential Decree (P.D.) No. 957 which requires that the road lots in a subdivision development
shall be in the name of the developer or owner, of which Borbajo is neither. [22] They aver that Borbajo fraudulently obtained
her titles to the road lots through a falsified deed of sale which was the document presented to the Office of the Register of
Deeds.[23] They also point out that the use by Borbajo of the road lots for the ingress and egress of heavy equipment has
continuously resulted in the rapid deterioration of the roads. Moreover, the road lots are not the nearest point between the
development project of Borbajo and the provincial road. [24] Finally, they assert that they are merely exercising acts of
ownership which include the right to prevent others from enjoying the thing owned by them. Respondents oppose the
issuance of a preliminary injunction because notwithstanding the registration of the subject road in Borbajos name, her title
thereto is tainted by the discovery of fraud she allegedly perpetrated in securing the questioned titles. [25]

The result which Borbajo seeks to achieve which is to reinstate the preliminary injunction issued by the lower court has
to be granted, but not for the reasons which she has raised nor for the grounds which the lower court relied upon.

The ultimate question for resolution is whether respondents may legally prevent Borbajo from using and passing through
the three (3) road lots within Hidden View Subdivision I. It is worthy of note that the right of respondents to use the road lots
themselves is not in dispute.

In resolving the controversy, the lower court addressed only the issue of whether respondents have the right to close the
road lots, and the question of damages.[26] It concluded that respondents cannot legally close the road lots because these are
intended for public use. It opted not to resolve the question pertaining to the validity of Borbajos acquisition of the road lots
and her title thereto on the ground that a Torrens title cannot be collaterally attacked.[27]

For its part, the Court of Appeals addressed the trial courts errors assigned by the respondents herein. The trial court
allegedly erred in: (a) finding that Borbajo was the developer of Hidden View Subdivision I; (b) finding that the manner by
which Borbajo acquired the road lots is irrelevant to the resolution of the issues in this case; (c) finding that the road lots are
open to the public and the only right of the residents therein is to regulate its use; (d) not finding that the elements of an
easement of a right-of-way are not present; (e) finding that the injunction was properly issued and the court ordered Borbajo
to donate the road lots in favor of the local government unit; and (f) failing to award damages to the respondents. [28]

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The appellate court found that the injunctive writ was erroneously issued as the same was not based on an actual right
sought to be protected by law. The fact that Borbajo was the developer of Hidden View Subdivision I was not clearly established
by evidence. Although Borbajo has claimed that she was the developer of the subdivision and that Bontuyans name was
indicated in the License to Sell, such claim carried scant weight in the absence of a certificate of registration of the subdivision
project issued in her name by the HLURB and other documents which prove that she was indeed the developer.[29] Further, the
appellate court ruled that the fact of registration of the road lots in Borbajos name was insufficient to defeat the right of the
homeowners of the subdivision and preclude them from regulating their use and administration thereof in accordance with
existing laws and regulations.[30] It likewise held that Borbajo had not complied with the requisites of a compulsory easement
of right-of-way and pointed out the general rule that mere convenience for the dominant estate is not what is required by law
as the basis for setting up a compulsory easement.[31] Hence, this instant judicial recourse.

Noticeably, the appellate court dwelt at length on the question of whether Borbajo was the developer of the Hidden View
Subdivision I as she claimed. Apparently, Borbajo submitted this point, with her focus set on the provisions of P.D. No. 957, as
amended, ordaining that road lots may be titled only in the name of the owner of the subdivision or its developer. In the
process, however, the Court of Appeals lost sight of the settled and decisive fact that Borbajo is one of the registered co-owners
of the road lots along with Bongo. The evidence reveals that Borbajo and Bongo were issued TCTs, all dated 30 July 1991, for
the three (3) road lots situated within the Hidden View Subdivision I. These titles were issued pursuant to the Deed of Absolute
Sale dated 18 June 1991 which also mentioned the road lots as such.

As a registered co-owner of the road lots, Borbajo is entitled to avail of all the attributes of ownership under the Civil
Codejus utendi, fruendi, abutendi, disponendi et vindicandi.[32] Article 428 of the New Civil Code is explicit that the owner has
the right to enjoy and dispose of a thing, without other limitations than those established by law. A co-owner, such as Borbajo,
is entitled to use the property owned in common under Article 486 of the Civil Code. Therefore, respondents cannot close the
road lots to prevent Borbajo from using the same.

The Court of Appeals ruled that the road lots cannot be sold to any person pursuant to P.D. No. 957, as amended. It also
pointed out that fraud is manifest in the acquisition of titles thereto. However, it is a settled rule that a Torrens title cannot be
collaterally attacked.

It is a well-known doctrine that the issue as to whether title was procured by falsification or fraud can only be raised in
an action expressly instituted for the purpose. A Torrens title can be attacked only for fraud, within one year after the date of
the issuance of the decree of registration. Such attack must be direct, and not by a collateral proceeding. The title represented
by the certificate cannot be changed, altered, modified, enlarged, or diminished in a collateral proceeding. [33] The certificate of
title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. [34]

However, in upholding the efficiency value of the disputed titles for purposes of the present petition, we are not
foreclosing any future determination by appropriate forum on the legality of Borbajos titles over the road lots. Verily, a
separate case for annulment of titles over the road lots is now pending before the court. There are serious allegations that the
issuance of the TCTs over the road lots was tainted with fraud as evidenced by alterations made on the face of the certificates
and discrepancies in the records of the contract of absolute sale filed before the Office of the Register of Deeds and the Notarial
Division of the RTC of Cebu City.[35] If the court finds that the titles of Borbajo were obtained fraudulently, her right to the road
lots ceases as well as her right-of-way by virtue of said titles.

In the meantime, however, we are bound by the value in law and the evidentiary weight of the titles in the name of
Borbajo. As long as the titles are not annulled, Borbajo remains registered a co-owner and therefore her right to use the road
lots subsists.

Likewise, with Borbajo as a registered co-owner of the road lots, it is utterly pointless to discuss whether she is entitled
to the easement of right of way. Both from the text of Article 649 [36] of the Civil Code and the perspective of elementary
common sense, the dominant estate cannot be the servient estate at the same time. One of the characteristics of an easement is
that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the
servient and the dominant estates belong to different owners.[37]

Borbajo, being a registered co-owner of the three (3) road lots, is entitled to the injunctive relief.

The requisites to justify an injunctive relief are: (a) the existence of a right in esse or the existence of a right to be
protected; and (b) the act against which injunction is to be directed as a violation of such right. [38] A preliminary injunction
order may be granted only when the application for the issuance of the same shows facts entitling the applicant to the relief
demanded.[39] A preliminary injunction is not proper when its purpose is to take the property out of the possession or control
of one party and transfer the same to the hands of another who did not have such control at the inception of the case and
whose legal title has not clearly been established.[40]

One final note. Respondents in their Answer[41] neither claimed nor asked for the right to regulate the use of the road lots
or that the road lots be donated to the Cebu City Government. Thus, there was utterly no basis for the trial court to include as it
did its disposition along these lines in the decretal portion of its decision.

WHEREFORE, the Decision of the Court of Appeals dated 21 September 2001 is REVERSED and SET ASIDE and the writ of
preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 58, is made permanent, subject to the final
outcome of Civil Case No. 21239 pending before the Regional Trial Court of Cebu City, Branch 9.

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No costs.

Puno, (Chairman), Austria-Martinez, and Chico-Nazario, JJ., concur.
Callejo, Sr., J., on official leave.

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