Depra vs.

Dumlao

Facts:

Francisco Depra is the owner of a parcel of land. While, Agustin Dumlao owns
the adjoining lot.

In 1972, when Dumlao constructed his house on his lot, the kitchen thereof had
encroached on an area of 34sqm of Depra’s property.

After Depra discovered the encroachment, he filed an unlawful detainer against

Dumlao.

After trial, the Court found Dumlao was a builder in good faith applying Article
448.

Pursuant to Article 448, Depra has the option either to pay for encroaching part
of Dumlao’s kitchen, or to sell the encroached 34sqm of his lot to Dumlao. However,
Depra cannot refuse to pay or to sell.

Issue:

Whether Depra is entitled to have the kitchen removed given the fact that
Dumlao is a builder in good faith.

Held:

Depra is entitled to such removal only when he pays for the encroaching part of
Dumlao’s kitchen. Or, when after having chosen to sell his encroached land, Dumalao
fails to pay for the same.

In this case, Dumlao had expressed his willingness to pay for the land, but Depra
refused to sell.

Hence, it could be seen, that Article 448 favors the owner of land, by giving him
the options mentioned in the Article.