Property

Atty. Ronic Treptor

Right to Recover
Module 3.2
Right to recover
• Right to recover
• The owner has the right of action against the holder and possessor of the
thing in order to recover it.

• This right is transmissible to the heirs or assignees of the person entitled to it.
• An assignee can file an action to recover a property unjustly taken from his assignor.

• NOTE: possession in the concept of an owner raises a disputable presumption

of ownership. The owner cannot simply force the possessor out of the
property. He must resort to judicial process for the recovery of the property.
• He cannot take the law into his own hands.
Right to recover
• What are the actions to recover property?
• Personal property = Replevin

• Real property:
• Action for Ejectment - either forcible entry or unlawful detainer
• Accion Publiciana – plenary action to recover the better right or possession
• Accion Reivindicatoria – or an action to recover possession based on ownership

• Other remedies:
• Writ of preliminary mandatory injunction (provisional remedy)
• Writ of possession
Replevin
• Replevin (Rule 60, Rules of Court)
• Defined as an action or provisional remedy where complainant prays for the
recovery of the possession of personal property.
• Note that there are two kinds of replevin. Replevin as an action and replevin as a
provisional remedy. (a provisional remedy is a prejudgment remedy given by the court to
a party pending resolution of the case).

• Subject properties = ONLY PERSONAL PROPERTY. If the property is real

property, replevin is not the proper remedy.
Replevin
• At the commencement of the action, or at any time before the other party
answers, the applicant may apply for an order of the delivery of such
property to him.

• The applicant must show by his own affidavit or that of some other person
who personally know that facts:
• That the applicant is the owner of the property claimed, particularly describing it, OR
is entitled to the possession thereof.
• That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to his best knowledge, information, and belief.
• That it has not been distrained or taken for a tax assessment or fine pursuant to law
or seized under a writ of execution or preliminary attachment or otherwise placed
under custodia legis or if so seized, that it is exempt from such seizure or custody.
• The actual market value of the property.
Replevin
• The applicant must also give a bond.
• Double the value of the property as stated in the affidavit.

• In case the adverse party will suffer damages due to the action of the claimant, the bond will
answer for the damages.

• The court will then order the sheriff to take such property into his custody. If the
property is in a building or enclosure, and not delivered upon demand, the sheriff
may cause the building or enclosure to be broken down.
• Note: the property will not by delivered to the claimant for the meantime. It will remain in
the custody of the sheriff until the court will issue its judgment determining who is the
rightful possessor of the property concerned.
• Note: the adverse party may give a counter-bond to prevent the sheriff from taking the
property. (double the value of the property as stated in the affidavit of the claimant. The
bond will answer for any damages that may be caused to the claimant)
Replevin
• Jurisprudence on Replevin:
• A writ of replevin cannot be directed against a lawful possessor. (Chua v. CA)

• The contents of the affidavit of merit may be included in the complaint for
replevin itself, provided it is verified. (Citibank v. CA)

• A writ of replevin may be served anywhere in the Philippines (Fernandez v.

International Corporate Bank)

• When the thing is in official custody of a judicial or executive officer in

pursuance of his execution of a legal writ, replevin will not lie to recover it.
(Factoran v. CA)
Ejectment
• 2 kinds of ejectment cases: (Rule 70, Rules of Court)
• Forcible entry
• Unlawful detainer

• NOTE: both are under the exclusive and original jurisdiction of the MTC
Forcible Entry
• Forcible entry
• Summary action to recover material or physical possession of real property
when a person originally in possession was deprived thereof by force,
intimidation, strategy, threat, or stealth. (FISTS)

• Grounds for an action for forcible entry: FISTS

• Force
• Intimidation
• Strategy
• Threat
• Stealth
Forcible Entry
• Period to file for forcible entry:
• The action must be brought within one year from the dispossession.
• Note: if the dispossession was caused by strategy or stealth, the one-year period is
counted from the date of the discovery of such strategy or stealth.

• Issue involved: mere physical possession of the property and not

ownership.
• Thus, in a case, the Supreme Court held that an action for forcible entry may
prosper even against the owner of the property.
Forcible Entry
• Plaintiffs must allege and prove the following:
• That they have prior physical possession of the property.

• The complaint must allege that one in physical possession of a land or

building has been deprived of said possession by another through FISTS.

• That the action was filed within one year from the time the owners or legal
possessors learned of their deprivation of the physical possession of the
property. (need not be alleged but must be proved. Tip: make an allegation to
this effect)
Forcible Entry
• “Prior physical possession”
• Indeed, possession in ejectment cases "means nothing more than actual
physical possession, not legal possession in the sense contemplated in civil
law." In a forcible entry case, "prior physical possession is the primary
consideration.“
• "A party who can prove prior possession can recover such possession even
against the owner himself. Whatever may be the character of his possession,
if he has in his favor prior possession in time, he has the security that entitles
him to remain on the property until a person with a better right lawfully
ejects him.“
• "The party in peaceable, quiet possession shall not be thrown out by a strong
hand, violence, or terror."
Forcible Entry
• Tax declarations as proof of prior possession:
• Similarly, tax declarations and realty tax payments are not conclusive proofs
of possession. They are merely good indicia of possession in the concept of
owner based on the presumption that no one in one’s right mind would be
paying taxes for a property that is not in one’s actual or constructive
possession.
Forcible Entry
• Allegations of ownership in forcible entry cases
• As a rule, the MTC has no jurisdiction to rule on issues of ownership in cases
for forcible entry.

• Allegations of issues on ownership by the defendant will not deprive the court
of its jurisdiction. (jurisdiction of the court as to the subject matter is
determined by the allegations in the complaint, and the law applicable to the
case.)
Forcible Entry
• What should the court do on issues of ownership?
• The Supreme Court has held that “Where the issue of ownership is raised by
any of the parties, the courts may pass upon the same in order to determine
who has the right to possess the property. The adjudication is, however,
merely provisional and would not bar or prejudice an action between the
same parties involving title to the property.” (2012 case; G.R. No. 183822)
Forcible Entry
• In case the parties agreed to enter into a compromise in an ejectment
suit, and decided to agree on the issue of ownership
• The compromise agreement, even if confirmed by the court, will not be
tantamount to an adjudication as to the ownership of the property. (as a rule,
it is beyond the jurisdiction of the court in an ejectment suit.)
Unlawful Detainer
• Unlawful detainer – the action that must be brought when possession
by a landlord, vendor, vendee, or other person of any land or building
is being unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of a contract, express or implied.

• Prior physical possession is not required in an unlawful detainer, as

compared to forcible entry.
Unlawful Detainer
• The issue is still possession, and not ownership.

• The action must be brought within one year from the time possession
becomes unlawful
• If there is a fixed term, the possession becomes unlawful from the moment
the period expires.

• If the lessee fails to comply with his obligations, the one-year period is to be
counted from the date of demand to vacate.
Unlawful Detainer
• If there is no term
• Lease contract without a period (urban) = Art. 1687
• If the period for the lease has not been fixed, it is understood to be from year to year, if
the rent agreed upon is annual;
• from month to month, if it is monthly;
• from week to week, if the rent is weekly; and
• from day to day, if the rent is to be paid daily.
Unlawful Detainer
• If there is no term
• rural land = Art. 1682
• The lease of a piece of rural land, when its duration has not been fixed, is
understood to have been for all the time necessary for the gathering of the
fruits which the whole estate leased may yield in one year, or which it may
yield once, although two or more years may have to elapse for the purpose.
Unlawful Detainer
• Note also:
• Art. 1670. If at the end of the contract the lessee should continue
enjoying the thing leased for fifteen days with the acquiescence of
the lessor, and unless a notice to the contrary by either party has
previously been given, it is understood that there is an implied new
lease, not for the period of the original contract, but for the time
established in articles 1682 and 1687. The other terms of the original
contract shall be revived.
Unlawful Detainer
• If there is no term and the possession is by mere tolerance
• By mere tolerance = implied agreement that they will vacate upon demand,
thus the one-year period will be counted from the demand to vacate the
premises.

• Note that the rightful possessor may demand the illegal settlers to vacate
multiple times. In this case, the one-year period is to be counted from the last
demand to vacate.
Unlawful Detainer
• Issues on ownership:
• Same rule under forcible entry. The courts may decide on issues on
ownership, but only to determine who has the better right to possess. The
adjudication is provisional and will not constitute res judicata.
Ejectment
• Unlawful detainer vs. forcible entry
• FE = the possession was unlawful from the beginning
• UD = possession was lawful at the beginning but became unlawful

• FE = prior possession of the plaintiff is essential

• UD = prior possession is not essential
Accion Publiciana
• Accion Publiciana – is an ordinary civil proceeding to determine the
better right of possession of realty independently of title. It 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.
Accion Publiciana
• The objective of the plaintiffs in accion publiciana is to recover possession
only, not ownership.
• When parties, however, raise the issue of ownership, the court may pass
upon the issue to determine who between the parties has the right to
possess the property.
• This adjudication, nonetheless, is not a final and binding determination of
the issue of ownership; it is only for the purpose of resolving the issue of
possession, where the issue of ownership is inseparably linked to the issue
of possession. The adjudication of the issue of ownership, being
provisional, is not a bar to an action between the same parties involving
title to the property. The adjudication, in short, is not conclusive on the
issue of ownership.
Accion Publiciana
• It must be filed within 10 years from the dispossession.
• ARTICLE 555. A possessor may lose his possession:
• (1) By the abandonment of the thing;
• (2) By an assignment made to another either by onerous or gratuitous
title;
• (3) By the destruction or total loss of the thing, or because it goes out
of commerce;
• (4) By the possession of another, subject to the provisions of article
537, if the new possession has lasted longer than one year. But the
real right of possession is not lost till after the lapse of ten years.
Accion Reivindicatoria
• Accion reivindicatoria or accion de reivindicacion is an action whereby
plaintiff alleges ownership over a parcel of land and seeks recovery of
its full possession. It is a suit to recover possession of a parcel of land
as an element of ownership. The basic question in such an action is
whether the plaintiff, respondent herein, has presented sufficient
evidence to prove his ownership of the properties in question.
• Some experts define Accion Reivindicatoria as an action to recover
ownership. (however, one can argue that ownership is not yet lost in
an accion reivindicatoria, it is only the possession of the property)
Accion Reivindicatoria
• It must be brought within 10 years or 30 years.

• ARTICLE 1134. Ownership and other real rights over immovable

property are acquired by ordinary prescription through possession of
ten years.
• ARTICLE 1137. Ownership and other real rights over immovables also
prescribe through uninterrupted adverse possession thereof for thirty
years, without need of title or of good faith.
Writ of Preliminary Mandatory Injunction
• ARTICLE 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected
in or restored to said possession by the means established by the
laws and the Rules of Court.
• A possessor deprived of his possession through forcible entry may
within ten days from the filing of the complaint present a motion to
secure from the competent court, in the action for forcible entry, a
writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30) days
from the filing thereof.
Writ of Possession
• A writ of possession is a writ of execution employed to enforce a
judgment to recover the possession of land. It commands the sheriff
to enter the land and give possession of it to the person entitled
under the judgment.

• This only means that in cases where a party is held to be the owner of
a property, he need not file another action to recover possession (in
case the property is in the possession of another). He can file a
motion for the issuance of a writ of execution.