Friday, May 10, 2013
Ejectment Case: Forcible Entry or Unlawful Detainer
An ejectment case is a summary proceeding designed to provide expeditious means to protect actual possession or the right to possession of the property involved (Barrientos v. Rapal, G.R. No. 169594, July 20, 2011). It is expeditious as it is governed by the Rule on Summary Procedure, a special rule where extra pleadings and motions (other than the Complaint and Answer), otherwise available in an ordinary civil action, are prohibited precisely to insulate it from unnecessary delays. The main issue to be resolved here is the issue of possession or the right to hold possession.
If you’re a lessor of real property, you may, if you haven’t already, have to resort to the remedy of ejectment in cases where a lessee withholds possession of leased property after the latter’s right to hold the same has already terminated, as where lessee has failed to pay rental, or has failed to comply with the conditions of the lease contract, in which case it is called Unlawful Detainer.
It is also available where a present possessor has held possession of a subject property at the tolerance of the owner or the one entitled to its possession, and thereafter refused, after demand to vacate has been made upon him, or continues his possession thereof. In this case, an inceptively lawful possession has become unlawful, when the tolerated possessor refused to return the property upon demand by the rightful possessor or owner. Anyone, whose stay in the property is merely tolerated, is bound by an implied obligation to vacate and return the same to, upon demand of, the rightful possessor or owner.
Note that even the owner of the property may be sued for ejectment when he deprives another of lawful possession, as in a case of a lessor depriving or ousting a lessee, who has been compliant with his obligations under a lease contract, of possession thereof.
Another species of ejectment is Forcible Entry. It is the same special proceeding as Unlawful Detainer, but the means whereby the lawful possessor or owner of the subject property has been deprived thereof are: Force, Intimidation, Strategy, Threat, and/or Stealth (FISTS). Anyone who has been ousted of possession to a real property by a "strong hand" using any of the means mentioned, may resort to this summary remedy to restore him immediately to possession.
In both cases, ownership is not imperative in order for a plaintiff to acquire legal personality to sue, as again, the issue is mere right to possession. In unlawful detainer it is indispensable or jurisdictional that a demand to pay rental or comply with the conditions of the lease and vacate is made before an action may properly be filed. Accordingly, absence of such prior demand could lead to the dismissal of the case. However, the same is not true in forcible entry.
In both cases, resort to barangay conciliation is condition precedent, meaning that the opposing party may raise as objection the fact that the dispute has not been referred to the barangay authorities for conciliation, and the same may be ground for the dismissal of the action. However, it is not jurisdictional, meaning that it may be waived by such opposing party. It is deemed waived when the opposing party failed to timely object to the fact of its (barangay conciliation) absence.
Both actions must be brought (filed in court) within one year. The period of one year is reckoned from, in the case of forcible entry, the date of actual possession if the deprivation or the ground for the action is force, intimidation, or threat; and the date of discovery and prohibition if the deprivation or ground for the action is strategy or stealth. In unlawful detainer, the period of one year is counted from the date of last demand.
In the case of forcible entry, the possession is unlawful/illegal from the very beginning, while in unlawful detainer, it is inceptively lawful until the defendant refused and failed to vacate, after demand is made upon him by the plaintiff. Demand is made upon the termination of the defendant's right to hold possession of the subject property, either by expiration of contract, breach of terms of the contract, or when an owner who tolerated the defendant's stay has manifested its intention to use the property effectively ending the tolerance.
In both cases, the provisional remedy of preliminary injunction and/or temporary restraining order (TRO) is available under the provision of Rule 70, on forcible entry and unlawful detainer, and in relation to Rule 58, on preliminary injunction and/or temporary restraining order.