1 RULE 70 – FORCIBLE ENTRY & UNLAWFUL DETAINER – REVIEWER 7035 CLASS | GROUP 4

Provisional
Remedies &
Special Civil
GROUP 16
Actions
Tomilap, Bhenz Bryle Niño
7044 Class
Tampus, Rea Rose
6:00 – 8:00 PM
Abella, Alain Jon Carlo
Dumamba, Anderson
Aberjedo, Melanie
Gamayon, Jeanne Aurice

Rule 70 – Forcible Entry

& Unlawful Detainer
A REVIEWER 1
2 RULE 70 – FORCIBLE ENTRY & UNLAWFUL DETAINER – REVIEWER 7035 CLASS | GROUP 4

What are the kinds of actions to recover real property?

1. Accion interdictal
2. Accion publiciana
3. Accion reivindicatoria

Distinguish “Accion Interdictal,” “Accion Publiciana,” and “Accion

Reivindicatoria”

a.) ACCION INTERDICTAL – summary action for either forcible entry or

detentacion
• defendant's possession of the property is illegal ab initio
• summary action for unlawful detainer
• Period for filing action:
• When based on forcible entry - 1 yr from the date of actual entry on
land
• When based on unlawful detainer - from the date of last demand

b.) ACCION PUBLICIANA – a plenary action for recovery of the right to

possess real property when action is brought 1 year from accrual of the
cause of action
• Action becomes one of accion publiciana when the dispossession did
not occur under circumstances of unlawful detainer/forcible entry

c.) ACCION REIVINDICATORIA

• an action which seeks recovery of ownership and jus possidendi
• plaintiff alleges ownership over a parcel of land and seeks recovery of
its full possession
• different from the previous two actions because there, the plaintiff only
alleges proof of a better right to possess

JURISDICTION

Which court has jurisdiction over forcible entry and unlawful

detainer?

MTC, MCTC, and the MeTC shall have EXCLUSIVE and ORIGINAL jurisdiction

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over actions for forcible entry and unlawful detainer and shall be governed
by the rules on summary procedure irrespective of the amount of damages
sought to be recovered

Which court has jurisdiction in ejectment cases?

- determined by the allegations pleaded in the complaint

- cannot be made to depend on the answers /pleadings of the defendant, nor

on the exclusive characterization of the case by one of the parties

Which court has jurisdiction in accion publiciana and accion

reivindicatoria?

Jurisdiction therein shall be determined by the assessed value and not the
market value of the property subject of the case because both are real
actions.

Jurisdiction is with MTC if :

• Value does not exceed P20,000 if outside Metro Manila; does not
exceed P50,000 if within MM

Jurisdiction is with RTC if :

• If exceeding the aforesaid amounts

What does "Assessed Value" signify = FMV x Assessment level

What is “detentacion”?

Detentacion or action for forcible entry is a kind of action to recover

possession of property from the defendant whose occupation thereof is
illegal ab initio or void from the beginning, the defendant thereof acquired
possession over the property via FISTS.

F – Force
I – Intimidation

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S – Stealth
T – Threat
S – Strategy

What is “desahucio”?

Desahucio or action for unlawful detainer is an action for the recovery of

possession from the defendant whose possession of the property was
inceptively lawful by virtue of a contract with the plaintiff, but became illegal
later on due to his continued possession despite the termination of his right.
It presupposes a situation wherein the defendant refuses to part away from
the property despite the expiration of his right thereof.

What are the issues raised in actions for forcible entry and unlawful
detainer?

The main issue raised therein is whether who between the parties is entitled
to the physical and material possession of the subject property.

• General Rule : Issues as to ownership are not to be touched upon by

the court

• Exception: When the defendant raises the issue of ownership and the
question of possession cannot be resolved first without deciding the
issue of ownership

What should the plaintiff allege in an action for forcible entry?

• First, he must allege that he had prior physical possession of the

property

• Second, he must allege that the defendant deprived him of such

possession by means of force, intimidation, stealth, threat, or strategy.
The act of going to the property and excluding the lawful possessor
implies force already includes situations wherein one person can
wrongfully enter upon real property to exclude another who have prior
rights to possess it

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Allegations in Unlawful Detainer

Unlawful detainer is an action to recover possession of real property from

who illegally withholds possession after the expiration or termination of his
right to hold possession under any contract.

The possession of the defendant in unlawful detainer is originally LEGAL but

became ILLEGAL due to the expiration or termination of the right to possess.

Q: Issue to be resolved?

The issue to be resolved is the right of physical or material possession of the

subject real property independent of any claim of ownership by any of the
parties involved. (Mendoza v. CA, 452 SCRA 117, 121)

A COMPLAINT SUFFICIENT SUFFICIENTLY ALLEGES A CAUSE OF

ACTION FOR UNLAWFUL DETAINER IF IT RECITES THE FOLLOWING:
PURO

1. Possession of the Property

- Contract
- Mere tolerance of the Plaintiff
2. Upon notice by the plaintiff
- The such possession became illegal due to the termination of the
right to possess.
3. Remained in possession
- Of the property and deprived the plaintiff of the enjoyment thereof.
4. One (1) year
- Within one year from the last demand on defendant to vacate the
property, the plaintiff instituted the complaint for ejectment.

When the complaint fails to aver facts how entry was effected.

To give the court jurisdiction to effect the ejectment of an occupant or

deforciant from the land, it is necessary that the complaint must sufficiently

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show such a statement of facts as to bring the party clearly within the class
of cases for which the statues provide a remedy, without resort to parol
testimony.

Failure to aver facts constitutive of forcible entry or unlawful detainer, the

remedy should either be an accion publiciana or accion reinvidicatoria.

Q. What are determining facts to aver for these actions?

Forcible entry and Unlawful detainer – it must state how entry was made or
how and when dispossession started.

Q. What is the nature of the actions of forcible entry and unlawful

detainer?

Forcible entry and unlawful detainer actions are summary in nature designed
to provide for an expeditious means of protecting actual possession or the
right to possession of the property involved. (Tubiano vs. Razo, 335 SCRA
531; Sudaria vs. Quiambao, G.R. No. 164305, November 20, 2007).

Possession as the issue

Possession - In the eyes of the law, does not mean that a man has to have
his feet on every sqm of the ground before he is deemed to be in posession.
(Dela Rosa v. Carlos)

Ejectment cases

Since the issue in ejectment cases is mere possession, it is worthy to note

that the decision in an ejectment case does not bind the title to or ownership
of the land or building. It does not bar an action between the same parties
respecting title to the property. (Balanon-Anicete v. Balanon 402 SCRA 514,
518)

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Q. What if the action is to recover ownership?

It is no longer interdictal but an accion reivindicatoria.

Meaning of Prior Physical Possession in Forcible Entry cases.

As a rule, the word “possession” in forcible entry suits refers nothing more
than prior physical possession or possession de facto, not possession de jure
or legal possession contemplated in civil law. Title is not the issue, and
absence of it is not a ground for the courts to withhold relief from the parties
in an ejectment case.

“… possession can be acquired not only by the material occupation, but also
by the fact that a thing is subject to the action of one’s will or by proper acts
and legal formalities established for acquiring such right”.

Possession by Juridical Act

 Donation
 Succession
 Execution and Registration of public instruments
 Inscription of possessory Formation titles and the like.

Nature of the entry to be considered

Forcible Entry

 ILLEGAL
 FORCE, INTIMIDATION, THREAT, STRATEGY OR STEALTH.
If the entry is illegal - the action should be filed is forcible entry.

Unlawful Detainer

 Legal at first
 Became illegal by virtue of an expired or terminated right to possess
If entry is legal, but possession thereafter is illegal - The action to be

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filed is Unlawful Detainer.

Demand to vacate is not required before the filing of the action.

Allegations required in an action:

How is the 1-year period to file an action is counted?

A.) Forcible Entry

Counted from the date of actual entry on the land except when the entry is
made through stealth, the 1-year period is counted from the time the
plaintiff learned thereof.

B.) Unlawful Detainer

Counted from the date of the last demand to vacate.

When defendant occupies premises by mere tolerance

- Possession becomes unlawful upon failure to comply with the demand

to vacate made by the owner.

- Unlawful withholding of possession is to be counted from the date of

the demand to vacate and the possessor by tolerance refuses to comply with
such demand.

Liability of Possessor by Tolerance

To pay rentals from the time the demand to vacate was made up to the time
the premises has been fully vacated.

When the rule on tolerance does not apply:

1.) When there was forcible entry at the start.

2.) Where the complaint clearly alleges that the defendants’ occupancy of

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the premises was unlawful from the start and was bereft of contractual or
legal basis, the plaintiff’s allegations run counter to the requirements for
unlawful detainer.

Venue to file an action

Place where the property is situated

Who may institute the action?

- any person (natural or juridical)

- Lessor

- Vendor

- Vendee

- Any person against whom the possession of the land or building is

unlawfully withheld after the expiration or termination of the right to hold
possession by virtue of any contract, express or implied.

Effect of Pendency of an action involving ownership on the action for Forcible

Entry and Unlawful Detainer

Does not bar the filing of an ejectment suit nor suspend the proceedings of
one already instituted. (Silverio vs. CA, 407 SCRA 240, 246)

Cases which do not bar an action for Forcible Entry and Unlawful
Detainer:

1.) Injuction Suits

2.) Accion Publiciana

3.) Writ of Possession

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4.) Action for Quieting of Title

5.) Suits for specific performance with damages

6.) Action for Reformation of Instrument

7.) Action for reconveyance of the property (accion reindivicatoria)

8.) Suits for annulment of Sale or title of document

When Judicial Action is not Available

“Contractual stipulations empowering the lessor to repossess the leased

property extrajudicially from a lessee whose lease contract has expired have
been held to be valid.” (Republic vs Peralta, 653 SCRA 629, July 6, 2011)

Demand in Unlawful Detainer

• An unlawful detainer case shall be commenced only after demand to

vacate (sec. 2, Rule 70, RoC)

• It is the refusal to vacate which makes the withholding of the

possession unlawful

• The demand should be to vacate alone, or to comply and vacate

Forms of Demand

• Written

o Served upon the person found in the premises

o Posting on the premises may also be had in the absence of any person

• Verbal

- Sufficient evidence must be produced to adduced in court for demand

to be complied with

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When to commence action for Unlawful Detainer?

When the lessee fails to comply with demand after:

- 15 days for land

- 5 days for buildings

When Demand is not necessary?

• When there is a stipulation dispensing with demand (Art. 1169, Civil

Code)

• When the ground for the suit is based on the expiration of the lease

- “Upon the expiration of the lease, the lessee is already considered to

be unlawfully withholding the property; hence, the cause of the action for
unlawful detainer immediately arises. In such a case, demand to vacate is
no longer necessary” (Panganiban vs Pilipinas Shell Petroleum Corporation)

What is Tacita Reconduccion?

-an implied lease whereby at the end of the contract of lease, the lessee
should continue enjoying the property leased for 15 days with the consent of
the lessor , and no notice to the contrary has been given.

What are its Requisites:

a. The term of the original contract of lease has expired ;

b. The lessor has not given the lessee a notice to vacate ;

c. The lessee continued enjoying the thing leased for fifteen days with
the acquiescence of the lessor.

The rule requires the defendant to file his answer to the complaint and serve
a copy thereof on the plaintiff within 10 days from service of summons.

Affirmative and negative defenses not pleaded in the answer shall be

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deemed waived, except lack of jurisdiction over the subject matter.

Cross-claims and compulsory counterclaims not asserted in the answer shall

be considered barred. The answer to counterclaims or cross-claims shall be
served and filed within 10 days from service of the answer in which they are
pleaded.

The court shall, upon motion of the claiming party, declare the defending
party in default.

If the defendant fails to answer the complaint within the period provided, the
court has no authority to declare the defendant in default. Instead, the
court, motu proprio or on motion of the plaintiff, shall render judgement as
may be warranted by the facts alleged in the complaint and limited to what
is prayed for therein.

The mere assertion of tenancy as a defense does not ipso facto deprive the
court of jurisdiction over an ejectment case.

The defendant cannot deprive the court of jurisdiction by merely claiming

ownership of the property involved.

The judgement rendered in an action for forcible entry or detainer shall be

conclusive with respect to the possession only and shall not bind the title or
affect the ownership of the land or building. Such judgment shall not bar an
action between the same parties respecting title to the land or building.

In case conciliation is required and there is no showing of compliance with

such requirements , the case shall be dismissed. The dismissal, however, is
one without prejudice. Hence , the case may be revived but only if the
conciliation requirement is complied with.

Pleadings allowed in forcible entry and unlawful detainer

The only pleadings allowed to be filed are:

a. Complaint

b. Compulsory counterclaim

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c. Cross-claim pleaded in the answer

d. Answers

All pleadings shall be verified.

A possessor deprived of his possession through forcible entry or unlawful

detainer may, within five days from the filing of the complaint, file a motion
in the same action for the issuance of a writ of preliminary mandatory
injunction to restore him in his possession. This motion shall be resolved
within 30 days from its filing.

PRELIMINARY INJUNCTION; to prevent further acts of dispossession

Section 15 of the Rules of Court provides that “The court may grant
preliminary injunction, in accordance with the provisions of Rule 58 hereof,
to prevent the defendant from committing further acts of dispossession
against the plaintiff.”

The plaintiff may ask for a writ of preliminary mandatory injunction within 5
days from filing of the complaint and the same shall be decided within 30
days from the filing.

Can the MTC issue a preliminary mandatory injunction in an unlawful

detainer case?

Yes, because although article 539 of the civil code provides that preliminary
mandatory injunction is only possible in forcible entry cases, rule 70, section
15 of the rules of court has made it applicable to both forcible entry and
unlawful detainer.

PRELIMINARY MANDATORY INJUNCTION; IN CASE OF APPEAL

Section 20 of ROC provides that “Upon motion of the plaintiff, within ten
(10) days from the perfection of the appeal to the Regional Trial Court, the
latter may issue a writ of preliminary mandatory injunction to restore the
plaintiff in possession if the court is satisfied that the defendant's appeal is

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frivolous or dilatory, or that the appeal of the plaintiff is prima facie

meritorious.

The RTC may issue a writ of preliminary mandatory injunction on motion of

plaintiff within 10 days from the perfection of the appeal. So there are two
instances when preliminary mandatory injunction can be availed of by the
plaintiff under Rule 70.

1. Immediately upon filing of the complaint before judgment.

2. Pending appeal if the court is satisfied that the defendant’s appeal is

frivolous or dilatory or that the appeal of the plaintiff is prima facie
meritorious

PRELIMINARY CONFERENCE; submission of affidavits and position

papers

1. Preliminary conference shall be held not later than 30 days after the last
answer is filed.

A pre-trial is not held since there is no trial in forcible entry and unlawful
detainer cases. Even if there is no pre trial, the provisions on pre trial in rule
18 of the rules of court shall be applicable to the preliminary conference
unless inconsistent with rule 70.

2. If the plaintiff fails to appear, the complaint shall be dismissed, and

defendant shall be entitled to counterclaim, and all cross claims shall be
dismissed. and the defendant should be entitled to the judgment of his
counterclaim.

(Appearance of the plaintiff in the preliminary conference is mandatory. His

failure to appear shall be cause for the dismissal of the complaint. If the
defendant appears in the absence of the plaintiff, then said defendant shall
be entitled to a judgment in his counterclaim as may be warranted by the
facts alleged and limited to what is prayed for therein. all cross claims
however shall be dismissed.

3. If the sole defendant fails to appear, the plaintiff shall be entitled to

judgement. (This rule applies only when there is only one defendant. If there
are two or more defendants sued under a common cause of action who had

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pleaded a common defense, and one or more appeared in the preliminary

conference, then the plaintiff shall not be entitled to a judgment. Instead the
proceedings shall go on as if every party appeared in the conference.

4. No postponement of preliminary conference shall be granted except for

meritorious grounds and without prejudice to the court’s discretionary
sanctions.

For Record of preliminary conference. - so Within five (5) days after the
termination of the preliminary conference, the court shall issue an order
stating the matters taken up therein.

Within 10 days from receipt of such order, all the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined
in the order, together with their position paper setting forth the law and the
facts relied upon by them.

JUDGEMENT.

1. Period for rendition of judgement shall be Within 30 days after receipt of

affidavit and position papers or expiration of the period for filing the same.

(Without any order of extension by the court, failure to decide even a single
case within the required period, constitutes gross inefficiency.)

2. The court may order that certain matters be clarified before judgment can
be rendered.

3. In such case, it may require submission of affidavits or evidence within 10

days from receipt of said order and render judgment within 15 days after
receipt of the last affidavit or the expiration of the period for filing.

If the court finds the allegations true, it shall render judgment in favor of the
plaintiff for the:

1. Restitution of the premises; and

2. Payment of the sum justly due as arrears for rent or as reasonable

compensation for the use and occupation of the premises, attorneys fees
and costs. If not true, it shall render judgment for the defendant to recover
his costs. If a counterclaim is established, The court shall render judgment

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for the sum found in arrears from either party and award costs as justice
requires.

Immediate Execution of Judgement (MTC)

Under section 19 Rule 70 of the ROC, A judgement on a forcible entry and

unlawful detainer case is immediately executory to prevent injustice to a
lawful possessor, and the court's duty to order the execution is practically
ministerial.

The rule mandating the immediate execution of judgement in an ejectment

case applies when the judgement is against the defendant.

The judgement is not immediately executory if it is rendered in favor of the

defendant and against the plaintiff.

Immediate Execution of Judgement and how to stay the same.

General Rule: Judgement of the MTC against the defendant in ejectment

proceedings is immediately executory.

Exceptions: When the following concur:

● The defendant perfects his appeal;

● He files sufficient supersedeas bond to pay the rents, damages and costs
accruing down to the time of judgement appealed from;

(Note that in forcible entry, the amount of the supersedeas bond and the
amounts to be periodically deposited shall be the reasonable value of the use
and occupancy of the premises as determined by the court.)

In a lawful detainer the amount of the bond and periodic deposit of rentals
shall be that stated in the lease contract.

This supersedeas bond Is not required when the monetary award in the
judgment of the inferior court has been deposited with the court ; or When
the defendant makes Periodical deposits with the appellate court, during
pendency of the appeal the amount of rent due from time to time under the

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contract, or in the absence of a contract, the reasonable value of the use an

occupation of the premises.

● When the defendant makes periodical deposits with the appellate court,
during pendency of the appeal the amount of rent due from time to time
under the contract or, in the absence of a contract, the reasonable value of
the use and occupation of the premises.

All of the requirements must concur. it must be made on or before the 10th
day of each succeeding month or period.

Decision of the RTC on appeal is immediately executory.

Once the RTC decides on the appeal, such decision, if against the defendant,
is also immediately executory without prejudice to an appeal.

It is only the execution of the MTC’s judgment pending appeal with the RTC
which may be stayed pursuant to section 19. The judgment of the RTC is
immediately executory notwithstanding the appeal.

On appeal, the appellate court may stay the writ, if the circumstances
require. even though RTC judgments in ejectment cases are immediately
executory, a preliminary injunction on the writ of execution is still allowed.

WHERE TO APPEAL?

The judgment or final order of the court is appealable to the appropriate

Regional Trial Court.

The mode of appeal is the same as in ordinary civil actions under rule 40 of
the Rules Of Court where a notice of appeal is filed with and the docket fee
paid in the court of origin, which is the Municipal Trial Court.

Upon motion of the plaintiff on appeal, within 10 days from the perfection of
the appeal to the Regional Trial Court, the rtc may issue a writ of preliminary
mandatory injunction to restore the

plaintiff in possession, if the court is satisfied that the defendant’s appeal is

frivolous or dilatory, or that the appeal of the plaintiff is prima facie

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meritorious.

Persons Bound by the Judgement in Ejectment Cases

General rule: the judgment in an ejectment case is binding only upon the
parties properly impeded and given an opportunity to be heard. this is
because an ejectment suit is an action in personam. However the judgment
may be binding on anyone who has not been impleaded in certain instances.

Exceptions:

● Trespasser

● Squatter or agent of the defendant fraudulently occupying the property to

frustrate the

judgment.

● Guest or occupant of the premises with the permission of the defendant.

● A transferee pendente lite

● Sublessee

The judgment binds and may be executed Against sub lessees who have not
been impleaded since their right to stay is only subsidiary to that of the
lessee. Once the right of the lessee disappears, they have nothing to stand
on unless they claim an understanding on relation with the owner.

● Co-lessee

● Member of the family, relative or privy of the defendant

Judgment for ejectment cannot be enforced against a co-owner who was not
made a party to the action.

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