EJECTMENT

Ejectment [or Accion Interdictal] is a Special Civil Action under Rule

70 of the Rules of Court of the Philippines, and it is covered by the
Rules on Summary Procedure. A complaint for ejectment may either
be Unlawful Detainer or Forcible entry.

An ejectment complaint is a legal remedy, allowed by existing rules,

to recover the physical possession of the real property, which is being
withheld or unlawfully detained or is being taken through the use of
force, intimidation, threat, strategy, or stealth.

In the battle for possession of certain properties, there is a legal

precept that must be taken into account. Both in personal (movable)
and real (immovable) property, the two kinds of possession must be
inquired into. These are possession de facto and possession de jure.

In Ejectment case, it involves only immovable or real property, and

only possession de facto is being inquired into, independent of the
determination of ownership, in order to adjudge who has the better
right over the property in dispute.

Possession de facto refers only to prior physical possession.

Possession de jure on the other hand is a real right of possession
and/or ownership over certain real property.

What are the two types of Ejectment Suits?

Forcible Entry
Forcible entry is an act done by the someone who wants to take
possession of a certain real property through force, intimidation,
threat, strategy or stealth. Hence, this is done against the will, or
without the consent of, the prior physical possessor of the subject
property.
Therefore, in an action for Forcible Entry, according the Supreme
Court in Mangaser vs.Ugay G.R. No. 204926, December 3, 2014:
“For a forcible entry suit to prosper, the plaintiffs must allege and
prove: (a) that they have prior physical possession of the property; (b)
that they were deprived of possession either by force, intimidation,
threat, strategy or stealth; and, (c) that the action was filed within
one (1) year from the time the owners or legal possessors learned of
their deprivation of the physical possession of the property.”
Unlawful Detainer
On the other hand, unlawful detainer transpires when the possession
of any land or building is unlawfully withheld from the owner or
lessor after the expiration of the contract or the termination of the
vendee’s right to hold possession, by virtue of any contract, express
or implied, or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person [Section 1, Rule 70 of the Rules of
Civil Procedure].
Thus, in Carbonilla v. Abiera, G.R. No. 177637, July 26, 2010, the
Supreme Court decides that:
“A requisite for a valid cause of action in an unlawful detainer case
is that possession must be originally lawful, and such possession
must have turned unlawful only upon the expiration of the right to
possess. It must be shown that the possession was initially lawful;
hence, the basis of such lawful possession must be established. If,
as in this case, the claim is that such possession is by mere tolerance
of the plaintiff, the acts of tolerance must be proved.”
These requisites are further reiterated in the case of Perez vs. Lim
(G.R. No. 211539, 17 October 2016), the Supreme Court therein held
that the following should be present in a complaint for unlawful
detainer:

• (a) Initially, the possession of the property by the defendant

was by contract with or by tolerance of the plaintiff;
• (b) Eventually, such possession became illegal upon notice
by the plaintiff to the defendant about the termination of the
latter’s right of possession;
• (c) Thereafter, the defendant remained in possession of the
property and deprived the plaintiff of its enjoyment; and
• (d) Within one year from making the last demand to vacate
the property on the defendant, the plaintiff instituted the
complaint for ejectment.

Basic Stages of Ejectment Proceedings

There are basic stages in this kind of action, to wit:
 • Filing of the Complaint for Ejectment
• Preliminary/Pre-Trial Conference
• Filing of Respective Position Papers [this replaces the trial
proper done in ordinary civil actions]
• Finally, the Judgment
The “plaintiff” is the person who owns the property or who is entitled
to a possession thereof or the one that has been deprived of prior
physical possession through fraud, intimidation, strategy or stealth;
while the “defendant” is the person being ejected from the subject
premises and who has no right to physically possess the same.
How to file an ejectment case in the Philippines?
Before filing an ejectment case, and in order to thwart any legal
technicalities that may be interposed against the interest of the suing
party, it is indispensable that you consult a lawyer.
For instance, in the case of a lessor who wants to eject the lessee who
is unreasonably in arrears, a demand letter to “pay” and to “vacate”
is a requirement.
“Section 2. Lessor to proceed against lessee only after demand. —
Unless otherwise stipulated, such action by the lessor shall be
commenced only after demand to pay or comply with the conditions
of the lease and to vacate is made upon the lessee, or by serving
written notice of such demand upon the person found on the
premises if no person be found thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of land or five (5) days in
the case of buildings.” [Rule 70, Section 2, Rules of Court]
Barangay conciliation is also a condition precedent in order to obtain
a Certificate to File Action.
“Section 12. Referral for conciliation. — Cases requiring referral for
conciliation, where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be
revived only after that requirement shall have been complied with.”
[Rule 70, Section 12, Rules of Court]
And:
“Sec. 18. Referral to Lupon. — Cases requiring referral to the Lupon
for conciliation under the provisions of Presidential Decree No. 1508
where there is no showing of compliance with such requirement,
shall be dismissed without prejudice and may be revived only after
such requirement shall have been complied with. This provision
shall not apply to criminal cases where the accused was arrested
without a warrant.” [Revised Rules on Summary Procedure]
Of course, you have to determine if your case falls under the types of
action mentioned above. Meaning, is an action for Forcible Entry or
Unlawful Detainer.
More importantly, in both actions, you should have evidence in
support of your cause of action, such as you are the lessor or owner
of a particular property, from where the occupants thereof are your
defendants whom you want to evict. You must have the right to
possession or to possess the subject property. You must be a prior
physical possessor, in case of forcible entry action.
Issues that must be considered in determining who has the
better right to possess
Action for Forcible Entry
Forcible entry is the legal proceeding that should be undertaken
when the unlawful possessor has taken possession of the property
through force, intimidation, threat, strategy, or stealth, as aforesaid,
thus, depriving another of his prior physical possession.
In filing an action for forcible entry, the intruder’s possession of the
property has been illegal from the very beginning since it has been
seized through unlawful means.
What is prior physical possession?
In forcible entry, “prior physical possession” means the actual or
constructive possession of the rightful or lawful possessor of the
subject property. However, this kind of occupation has been
interrupted by another person, thus, depriving the lawful occupant
of his antecedent legitimate possession of the premises.
Prior physical possession connotes not only that a person has to have
his feet on every corner of the subject premises, much less in whole
area thereof, before it can be said that he is in fact in possession of
the property.
It is enough that the property is subject to the will of the rightful
possessor, or to an even greater extent, it is within his control by
proper acts and legal formalities established for acquiring such right
through legitimate conveyance i.e. donation, inheritance, etc.
How will the owner be deemed deprived of physical possession of the
property?
The owner or lawful possessor is deprived of property under forcible
entry only if the intruder has dispossessed the former of the said
property through force, intimidation, threat, strategy, or stealth.
This means that the owner or lawful possessor never allows, much
less gives consent to [expressly or tacitly], the trespasser to enter the
property. Nonetheless, because of the acts of the latter, the owner or
lawful possessor has been deprived of the prior physical possession
of the premises.
When should the complaint for forcible entry be filed?
The complaint for forcible entry must be filed within one (1) year from
the time the owner or lawful possessor has been dispossessed of the
premises or from the discovery the unlawful possession of the
property.
If he fails to comply with the one (1) year period, the owner or lawful
possessor must now instead file an ordinary civil action called accion
publiciana which is generally a longer and more expensive legal
action.
“Accion publiciana is the plenary action to recover the right of
possession which should be brought in the proper regional trial court
when dispossession has lasted for more than one year. It is an
ordinary civil proceeding to determine the better right of possession
of realty independently of title. In other words, if at the time of the
filing of the complaint more than one year had elapsed since
defendant had turned plaintiff out of possession or defendant’s
possession had become illegal, the action will be, not one of the
forcible entry or illegal detainer, but an accion publiciana. x x x x . .
. .” [Yusingco vs. Busilak, et al., G. R No. 210504, January 24, 2018]
Action for Unlawful Detainer
What is inceptive lawful occupation or initial legal possession?
This means that the possessor started out with a legal right to
possess the property. This right may have arisen by virtue of:

1. a contract, such as a residential lease or sublease agreement

or a commercial lease agreement, wherein the possessor pays
a consideration (such as money) to stay in the property or
2. the owner allowed the possessor to stay in the property for
free (tolerance and without consideration).
In the second case, there is an implied promise that the initial legal
possessor will vacate the property when the owner demands him to
do so.
How will the legal possession be considered subsequently to be an
illegal one?
The possession of the property by the inceptive lawful possessor
becomes illegal when the latter refuses to leave the property despite
the fact that he has no more right to possess it anymore. This may
happen if the possession was based on a contract, and the same
expired or has been breached resulting to its termination. And then,
the prior occupant refuses to leave the property.
On the other hand, if the possession was based on the consent or
tolerance of the owner, it may happen that the owner has already
withdrawn his permission to occupy or tolerance thereof.
Nevertheless, the prior occupant doe not want to surrender the
premises to the owner.
In either case, the owner should inform the initial legal possessor
that the does not have anymore the right to occupy and withhold the
property. The owner or lessor should no demand him to leave
peacefully and surrender the property in favor of the owner or
lessor. This must be done in the form of a demand letter.
Refusal to vacate despite being told to do so
There is a retention of the property if the prior occupant fails, or does
not want, to surrender the premises, and he continues to keep the
property in spite of fact that the owner:

1. has informed them that the legal possession has been

terminated and
2. has made a written demand that the possessor leave the
property.
Time within which to file a complaint for unlawful detainer?
The unlawful detainer complaint should be filed within one (1) year
from the date of the last demand to vacate the property. Failure to do
so, an ordinary civil action called accion publiciana shall now be the
proper remedy.
Generally, this is a longer, taxing, and more expensive legal recourse.
There must always be a written demand to vacate the property before
a complaint for unlawful detainer can be filed, as required by the
Rules.
Recourse to Appropriate Legal Remedy
The test which action should be filed is to find out the manner how
the defendant was able to take possession of the subject premises.
When the occupant has initially possessed the property legally, and
subsequently, his occupation thereto becomes illegal as heretofore
stated, then a complaint for unlawful detainer would be proper.
On the other hand, the general rule is that if the intruder has taken
the property through force, intimidation, threat, strategy, or stealth,
then a complaint for forcible entry would be the proper course of
action.
The complaint, in either case, must be filed within one (1) year from
the last demand to vacate the property for unlawful detainer or one
(1) year from the time of dispossession or discovery of the illegal
occupation for forcible entry.