LAPUZ and ASSOCIATES LAW OFFICES

Unit 304 Goldloop Tower B,

Ortigas Center, Pasig, City.
TELEPHONE No. 4535172
lapuzandassociates@gmail.com

19 March 2018

SPOUSES NINO PRESCO

and JACKIE PRESCO
Lot 1, Block 2, Hukom Street,
Justice Village, Muntinlupa City

Dear Mr. and Mrs. Presco:

This legal opinion seeks to answer your question as to what legal steps you
may undertake regarding the apparent encroachment of a portion of your property
by the adjacent lot owned by one Princess Diana Villadolid.

The Facts

Per our discussion and the documents you have shown me, the following are
the pertinent facts:

On July 01, 2017, you commissioned the services of one Engr. Madolin Carag,
a survey contractor of Bangs Realty and Sureveying Office, to conduct a relocation
survey of your lot. That the survey revealed that the frontage of Lot 1, adjoining lot
on the south side should only be 13.00 m. but appeared to be 15.88 m. thereby
appearing that Lot 2 has encroached Lot 1 by 2.88 m. eventually forming an overlap
of 36.00 sq.m. The said overlap is apparent, because a portion of the building and
concrete fence was built beyond the property line. As you also pointed out, that
despite the demand letter sent to the adjacent lot owned by Ms. Villadodid to vacate
the encroaced portion of your property, the same remained unheeded.

The Applicable Law

The applicable law is Article 434 of the Civil Code. It provides that:

“In an action to recover, the property must be

identified, and the plaintiff must rely on the strength
of his title and not on the weakness of the
defendant’s claim." Accion reivindicatoria seeks the
recovery of ownership and includes the jus utendi
 and the jus fruendi brought in the proper regional
trial court. Accion reivindicatoria is an action
whereby plaintiff alleges ownership over a parcel of
land and seeks recovery of its full possession.”

Considering that you have the title over the subject encroached portion of
your property, it may therefore be inferred that Ms. Villadodid is occupying a
property to which she does not have right over.

Consequently, if one does not own the land he possesses, one has limited
rights. One may be ejected based on two types of legal action: (1) ejectment (i.e.,
forcible entry or unlawful detainer) (accion interdictal); or (2) accion publiciana (or
the plenary action to recover the better right of possession).

An action for unlawful detainer and forcible entry must be filed within one
year from the date possession is lost (or the date the unlawful possession started).
The distinction between forcible entry and unlawful detainer is premised on the
nature of the possession. An action for forcible entry is proper when the
dispossession was by means of force, threat, intimidation, strategy or stealth. An
action for unlawful detainer, on the other hand, is proper when the possession is
originally lawful and turned unlawful upon the expiration of the right to
possess. Cases for ejectment are filed with the Metropolitan or Municipal Trial
Courts, and proceedings are summary in nature.

An accion publiciana, on the other hand, may be filed only after the expiration
of the one-year period, based on the same grounds as ejectment, and may be filed
only with the Regional Trial Courts. Proceedings in this case require the full
presentation of evidence.

The Applicable Jurisprudence

The Supreme Court, in the case of Spouses Elegio and Dolia Cañezo v. Spouses
Aploinario and Consorcia Bautista, G.R. No. 170189 (September 1, 2010) held that the
proper action to recover a property is accion reivindicatoria under Article 434 of the
Civil Code. The case likewise provides, that in order that an action for the recovery
of title may prosper, it is indispensable, in accordance with the precedents
established by the courts, that the party who prosecutes it must fully prove, not only
his ownership of the thing claimed, but also the identity of the same. However,
although the identity of the thing that a party desires to recover must be established,
if the plaintiff has already proved his right of ownership over a tract of land, and the
defendant is occupying without right any part of such tract, it is not necessary for
plaintiff to establish the precise location and extent of the portions occupied by the
defendant within the plaintiff’s property.”

Recommendation
 Based from the facts of your case, i recommend that you file an action
of accion reinvindicatoria for you to be able to recover ownership of your property
against Ms. Villadodid.

An accion reinvindicatoria is an action to recover ownership over real

property. Article 434 of the New Civil Code provides that to successfully maintain an
action to recover the ownership of a real property, the person who claims a better
right to it must prove two things: first, the identity of the land claimed by describing
the location, area, and boundaries thereof; and second, his title theretoI. n your case,
since the overlap has existed since 2009 when improvements were built thereon by
the adjacant owner, an accion publiciana is your proper recourse. In addition, since
defendant was not given any permission to construct any improvement on the
subject property encroached upon, she is deemed to be a builder in bad faith under
Article 449 of the Civil Code which states that:

“Art. 449. He who builds, plants or sows in bad faith on the

land of another, loses what is built, planted or sown
without right to indemnity”

Accordingly, defendant may be directed to remove the improvement that

encroached your property without any reimbursement of costs of construction.

I appreciate the opportunity to advise you regarding this matter. Please let
me know if you wish to discuss any of these issues further. Thank you.

Yours faithfully,

ATTY. JESUS ROS LAPUZ, JR.