digest

AMELIA P. ARELLANO, REPRESENTED BY HER DULY APPOINTED GUARDIANS, AGNES P. ARELLANO AND NONA P. ARELLANO, PETITIONER, VS. FRANCISCO PASCUAL AND MIGUEL PASCUAL, RESPONDENTS.

FACTS: Angel N. Pascual Jr. died intestate leaving as heirs his siblings, namely: petitioner Amelia P. Arellano represented by daughters Agnes P. Arellano and Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual. In a petition for “Judicial Settlement of Intestate Estate and Issuance of Letters of Administration,” filed by respondents before the Regional Trial Court, respondents alleged, inter alia, that a parcel of land (the donated property) located in Makati, which was, by Deed of Donation, transferred by the decedent to petitioner the validity of which donation respondents assailed, "may be considered as an advance legitime" of petitioner. The ordered partition of the probate court was faulted by petitioner and in the present petition ascribed as errors of CA the rulings that donated property is part of the estate of Angel Pascual, Jr. subject to collation, that respondents are entitled to legitimes as compulsory heirs and the unequal partitioning of the estate among petitioner and respondent as intestate heirs.

ISSUES: (1) Whether or not the property donated is subject to collation

(2) Whether or not the property of the estate should be equally distributed among the parties.

RULING:

(1) No. The donated property is not subject to collation. Collation takes place when there are compulsory heirs, one of its purposes being to determine the legitime and the free portion. If there is no compulsory heir, there is no legitime to be safeguarded. The records do not show that the decedent left any primary, secondary, or concurring compulsory heirs. He was only survived by his siblings, who are his collateral relatives and, therefore, are not entitled to any legitime - that part of the testator's property which he cannot dispose of because the law has reserved it for compulsory heirs.
There being no compulsory heir, the decedent was at liberty to donate all his properties, even if nothing was left for his siblings-collateral relatives to inherit. His donation to petitioner, assuming that it was valid, is deemed as donation made to a "stranger," chargeable against the free portion of the estate and not subject to collation.

(2) Yes. The remaining estate of the decedent should be partitioned equally among his siblings--collateral relatives, herein petitioner and respondents, pursuant to the provisions of the Civil Code, viz:

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (underscoring supplied)

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (emphasis and underscoring supplied)

ROLANDO SANTOS vs. CONSTANCIA SANTOS ALANA

FACTS: Rolando Santos and Constancia Santos Alana are half-blood siblings both asserting their claim over a 39-square meter lot in Manila. It was registered in the name of their father who died intestate in 1986. During his lifetime, Gregorio donated the lot to Rolando which the latter accepted. By virtue of the deed of donation annotated on Gregorio's title, a transfer certificate of title was issued in Rolando's name. In 1991 Constancia Santos filed with the RTC of Manila a complaint for partition and reconveyance against Rolando alleging that during the lifetime of their father, he denied having sold the subject lot to petitioner; that she learned of the donation in 1978; and that the donation is inofficious as she was deprived of her legitime. Rolando countered that respondent's suit is barred by prescription considering that she is aware of his possession of the lot as owner for more than ten (10) years; and that the lot was sold to him by Gregorio. Hence, respondent can no longer claim her legitime. Affirmed on appeal are the findings of the trial court which declared as invalid contract the Deed of Absolute Sale since it was not signed by the parties nor registered in the Registry of Deeds and sustained as valid the deed of donation as it was duly executed by the parties and registered.

ISSUES: (1) Whether or not the donation is inofficious

                (2) Whether or not action of respondent is barred by prescription

RULING: (1) Yes. Pursuant to Article 752 of the Civil Code, a donation is inofficious if it exceeds this limitation - no person may give or receive, by way of donation, more than he may give or receive by will. Gregorio could not donate more than he may give by will. At the time of his death, he left no property other than the entire lot he donated to petitioner and that the deceased made no reservation for the legitime of respondent, his daughter and compulsory heir. The donation is therefore inofficious as it impairs respondent's legitime which, under Article 888 of the Civil Code, consists of one-half (1/2) of the hereditary estate of the father and the mother. Since the parents of both parties are already dead, they will inherit the entire lot, each being entitled to one-half (1/2) thereof.

(2) No. "Donations, the reduction of which hinges upon the allegation of impairment of legitime (as in this case), are not controlled by a particular prescriptive period,” as held in Imperial vs. Court of Appeals but by ordinary rules of prescription. Under Article 1144 of the Civil Code, actions upon an obligation created by law must be brought within ten years from the time the right of action accrues. Thus, the ten-year prescriptive period applies to the obligation to reduce inofficious donations, required under Article 771 of the Civil Code, to the extent that they impair the legitime of compulsory heirs. The case of Mateo vs. Lagua, which involved the reduction for inofficiousness of a donation propter nuptias, recognized that the cause of action to enforce a legitime accrues upon the death of the donor-decedent, since it is only then that the net estate may be ascertained and on which basis, the legitimes may be determined.  Since Gregorio died in 1986, respondent had until 1996 within which to file the action. She filed her suit in 1992, well within the prescriptive period.

ELOY IMPERIAL vs. COURT OF APPEALS, REGIONAL TRIAL COURT OF LEGASPI CITY, CESAR VILLALON, JR., TERESA VILLALON, ANTONIO VILLALON, AUGUSTO VILLALON, ROBERTO VILLALON, RICARDO VILLALON and ESTHER VILLALON

FACTS: Leoncio Imperial, registered owner of a land in Albay sold said lot for P1.00 to his acknowledged natural son, Eloy Imperial who then acquired title over the land. Leoncio and Eloy both admitted that despite the contract’s designation as one of “Absolute Sale”, the transaction was in fact a donation. Two years after the donation, Leoncio filed a complaint for annulment of the said Deed of Absolute Sale, as he was deceived by petitioner into signing the said document. The dispute was resolved through a compromise agreement, approved by CFI Albay, wherein Leoncio recognized the legality and validity of the rights of petitioner to the land donated. In 1962, pending execution of the above judgment, Leoncio died, leaving only two heirs --- Eloy and an adopted son, Victor Imperial who moved for execution of judgment which the court granted upon substitution in place of Leoncio in the case. Fifteen years thereafter, Victor died survived only by his natural father, Ricardo Villalon, a lessee of a portion of the disputed land. Ricardo died, leaving as only heirs his two children, Cesar and Teresa Villalon who filed a complaint for annulment of the donation with the RTC in 1986. Relying on CFI compromise judgment, petitioner moved to dismiss on the ground of res judicata, which RTC granted but reversed by the Court of Appeals remanding the case for further proceedings. In 1989, Cesar and Teresa filed an amended complaint in the same case, for “Annulment of Documents, Reconveyance and Recovery of Possession” with the RTC, seeking to nullify the Deed of Absolute Sale on grounds of fraud, deceit and on inofficiousness as it impaired the legitime of Victor, their natural brother and predecessor-in-interest. Cesar Villalon who died while the case was pending was substituted in this action by his sons Antonio, Roberto, Augusto, Ricardo and Cesar, Jr. and his widow, Esther Villalon. Petitioner alleged but failed to substantiate that Leoncio had conveyed sufficient property to Victor to cover his legitimes, reiterated the defense of res judicata and raised prescription and laches as defenses against respondents.

ISSUES:  (1) Whether or not the donation was inofficious (2) Whether or not respondents have the right to contest the donation and (3) Whether or not action of respondents has prescribed and was barred by laches

RULING: (1) Yes. The subject donation was inofficious and should be reduced as it resulted in the impairment of Victor’s legitime because Leoncio had no other property at the time of his death. Herein respondents seeks the annulment, not of the entire donation, but only of that portion diminishing the legitime. In accordance with Art. 895 of the New Civil Code “the legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants.”

(2) Yes. Article 772 of the Civil Code provides that only those who at the time of the donor’s death have a right to the legitime and their heirs and successors in interest may ask for the reduction of inofficious donations. Victor who was entitled to question the donation did not contest the same but asked to be substituted as plaintiff in the civil case and moved for execution of the compromise judgment therein. No renunciation of legitime may be presumed from his acts as he was not a party to the compromise agreement but merely participated in the execution of the compromise judgment. Moreover, the law on succession does not countenance tacit repudiation of inheritance. Rather, it requires an express act on the part of the heir. He was, therefore, not precluded from subsequently seeking the reduction of the donation. Nor are Victor’s heirs, upon his death, precluded from doing so, as their right to do so is expressly recognized under Article 772, and also in Article 1053: If the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to his heirs.

(3) Yes. The action has prescribed and is barred by laches. The Civil Code specifies the following instances of reduction or revocation of donations: (a) four years, in cases of subsequent birth, appearance, recognition or adoption of a child; (b) four years, for non-compliance with conditions of the donation; and (c) at any time during the lifetime of the donor and his relatives entitled to support, for failure of the donor to reserve property for his or their support. Donations as in the instant case, the reduction of which hinges upon the allegation of impairment of legitime, are not controlled by a particular prescriptive period but by ordinary rules of prescription. Under Article 1144 of the Civil Code, actions upon an obligation created by law must be brought within ten years from the time the right of action accrues. Thus, the ten-year prescriptive period applies to the obligation to reduce inofficious donations, required under Article 771 of the Civil Code, to the extent that they impair the legitime of compulsory heirs. The cause of action to enforce a legitime accrues upon the death of the donor-decedent since it is only then that the net estate may be ascertained and on which basis, the legitimes may be determined. The action has long prescribed as it took private respondents 24 years since the death of Leoncio to initiate this case. Respondents are also guilty of estoppel by laches. Victor did not contest the donation nor claim his legitimes. Ricardo failed to institute an action as sole heir of Victor. Neither does it help private respondents’ cause that five years have elapsed since the death of Ricardo in 1981 before they filed their complaint with the RTC.

SPS. CARLOS MUNSALUD AND WINNIE MUNSALUD vs. NATIONAL HOUSING AUTHORITY

FACTS: Petitioner Winnie Munsalud is the daughter and one of the compulsory heirs of the late Lourdes Bulado who died in 1985. During the lifetime of Bulado, respondent National Housing Authority (NHA) awarded her a lot pursuant to the "Land for the Landless" program of respondent. She resided at the said property until her death. Winnie assumed the obligation to pay the monthly amortizations. Respondent NHA recognized petitioner spouses' assumption of obligations as their names were reflected in the receipts and they were allowed to occupy the lot. In 1989, petitioners completed the amortization payments evidenced by the annotation “full payment” reflected on the left side portion of the official receipt. Consequently, petitioners demanded that NHA issue in their favor a deed of sale and a title over the property. However, respondent refused. In 2003, petitioners by counsel, sent respondent a letter to issue a deed of sale and title. Respondent did not issue the requested documents but informed petitioners that Winnie's name does not appear as beneficiary. Petitioners replied that Winnie was representing her mother, the late Lourdes Bulado. Respondent did not respond to the reply. Left with no recourse, petitioners instituted a complaint for mandamus with the RTC which dismissed the complaint for the petition is insufficient in form and substance and that there being no reference to any law which respondent by reason of its office, trust or station is especially enjoined as a duty to perform. Petitioner’s motion for reconsideration was likewise denied. On appeal, the Court of Appeals affirmed the dismissal. Hence, this instant petition.

ISSUE: Whether or not the petition for mandamus is sufficient in form and substance

RULING: Yes. The petition for mandamus was sufficient in form and substance. The complaint designated by petitioners as mandamus reveals that it is sufficient in form. It has the caption with the name of the court, the name of the parties, and the docket number. The complaint contains allegations of petitioners' claims. It has a prayer and the date when it was prepared. The signature page shows the signature and name of petitioners' counsel, the counsel's IBP, PTR and Roll of Attorney's Numbers. The complaint was also verified and accompanied by a certificate of non-forum shopping and signed by petitioners as plaintiffs. It was filed personally with the office of the clerk of court.

Substance is one which relates to the material allegations and the character of the relief sought for in the pleading. It is determinative of whether or not a cause of action exists and is the embodiment of the essential facts necessary to confer jurisdiction upon the court. The action commenced by petitioners before the trial court, although designated as mandamus, is in reality an action to perform a specific act. The averments of the complaint are clear. The essential facts are sufficiently alleged as to appraise the court of the nature of the case. The relief sought to be obtained aims to compel respondent to issue a deed of sale and the corresponding title over the property awarded to Bulado. Thus, the Court finds the complaint sufficient in substance. The designation or caption is not controlling, more than the allegations in the complaint, for it is not even an indispensable part of the complaint. There is no need to make reference to any law which respondent by reason of its office is enjoined as a duty to perform. Respondent's duty arose from its contractual obligation under the "Land for the Landless Program."

RURAL BANK OF SIATON, (NEGROS ORIENTAL), INC., vs. VS. FELIX MACAJILOS AND QUIRICO MACAJILOS, JR.

FACTS: Felix and Quirico Macajilos alleged in their complaint that they are the children of the late Gregoria Macalipay Macajilos who during her lifetime owned and possessed a parcel of residential land situated in Negros Oriental. Macajilos inherited the subject property in 1959 upon Gregoria’s death as compulsory heirs of Gregoria, their father Quirico Macajilos, Sr. having predeceased Gregoria. Macajilos allowed Juanito Macalipay, nephew of Gregoria to build a house and to live together with his wife Fidela, and their son, Lamberto on the subject property. Fidela and Lamberto continued to live in the house even after the death of Juanito. In 1975, Fidela executed an "Affidavit of Heirship" before a Notary Public falsely claiming to be the sole heir of Gregoria Macalipay and adjudicating to herself the subject property. She obtained a loan from RBSI where Lamberto was manager using as collateral the subject property but defaulted thus the subject property was foreclosed and sold at public auction with RBSI as the only and highest bidder. Tax declaration was transferred to RBSI for failure of Fidela to redeem the property. Macajilos filed a criminal case for Estafa through falsification of public document against Fidela and Lamberto immediately upon discovery of the foreclosure sale. The trial court declared the foreclosure of the mortgaged property as void ab initio and that the Macajilos brothers were the rightful owners of the subject land. The Court of Appeals affirmed the decision of the trial court in toto.  

ISSUES:          1. Whether or not the Macajilos brothers are the rightful owners of the land.

2. Whether the action of the Macajilos brothers was barred by laches and estoppel.

3. Whether RBSI is a buyer-mortgagee in good faith

RULING:

(1) Yes. The Macajilos brothers are the rightful owners of the subject land. The tax declarations in the name of Gregoria Macalipay are significant because Fidela tacked her claim of ownership to that of Gregoria. Fidela was merely the wife of Juanito. Neither she nor Juanito could inherit from Gregoria whose compulsory heirs are respondents Macajilos. Though tax declarations are not conclusive evidence of ownership, they constitute good indicia of possession in the concept of owner and a claim of title over the property when coupled with uncontested actual possession of the subject property. The "Affidavit of Heirship" was fraudulent and could never be Fidela's source of ownership over the property. Neither could the tax declaration in the name of Fidela and the "Affidavit of Ownership and Possession" be the source of any derivative right of ownership of RBSI over the subject property considering that these documents were the products of a fraudulent scheme.

(2) No. Macajilos brothers are not barred by laches or estoppel from recovering ownership of the subject property. They are not estopped from denying the representations of Fidela that she owns the property because they were never privy to the loan agreements between RSBI and Fidela. The fact that the mortgage and subsequent foreclosure proceedings were duly registered will not cure their nullity because Fidela never owned the property. Neither can respondents be said to have slept on their rights as they have performed acts which showed their intent to assert their rightful ownership over the subject property – investigated and discovered the mortgage over said property with the provincial assessor’s office after coming across the notice of public auction; filed a criminal case against Fidela and Lamberto within a year from the discovery of the fraudulent scheme; took possession of the property and demanded Fidela to vacate after knowing about the foreclosure of the subject property and filed the instant case to remove cloud over the title and/or recovery of real property and for damages against RBSI as an off-shoot of the latter's demand on respondent Quirico to vacate the subject property. Respondents reasonably took steps to assert their ownership over the subject property.

(3)  No. RBSI is a mortgagee-buyer in bad faith. The property was mortgaged three times by Fidela to RBSI. As a banking institution it must have at least exercised due diligence before entering into said contracts because their business is impressed with public interest. It is a standard practice for banks before approving a loan to send representatives to the premises of the land offered as collateral and to investigate who are the real owners thereof. In the case at bar, no investigator was sent to the location of the subject property to verify the real owners thereof. Far from being prudent, RBSI hastily granted the loan without investigation, and placed full faith on the false documents submitted by Fidela. Consequently, it cannot now claim that it acted in good faith on the belief that there was no defect in the title of Fidela. The subject property is an unregistered piece of land and As ruled in David v. Bandin, which was reiterated in Sales v. Court of Appeals "the issue of good faith or bad faith of a buyer is relevant only where the subject of the sale is a registered land but not where the property is an unregistered land. One who purchases an unregistered land does so at his peril. His claim of having bought the land in good faith, i.e., without notice that some other person has a right to, or interest in, the property, would not protect him if it turns out that the seller does not actually own the property." Nevertheless, the application of this doctrine will not affect the outcome of this case. RBSI bought the property during the auction sale at its own peril and must suffer the consequences of its failure to investigate the true owners of the subject property.

campomanes

(LILIBETH CAMPOMANES)

 [G.R. No. 172804, January 24, 2011]

VILLANUEVA,  VS. BRANOCO.

The Facts

Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs,^[3] sued respondents, spouses Froilan and Leonila Branoco (respondents), in the Regional Trial Court of Naval, Biliran (trial court) to recover a 3,492 square-meter parcel of land in Amambajag, Culaba, Leyte (Property) and collect damages. Petitioner claimed ownership over the Property through purchase in July 1971 from Casimiro Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner declared the Property in his name for tax purposes soon after acquiring it.

 Respondents  claimed ownership over the Property through purchase in July 1983 from Eufracia Rodriguez (Rodriguez) to whom Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed), signed at the bottom by the parties and the two  (2) witnesses,  stated therein “  I , ALVEGIA RODRIGO xxxx  by reason of poverty which I suffered while our children were still young; and because my husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient as she was to all the works in our house, and because of the love and affection which I feel [for] her,  I have one parcel of land located at Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land   stated  above.  I already devise in favor of EUFRACIA RODRIGUEZ since May 21, 1962, her heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor, but will be inherited by the heirs of EUFRACIA RODRIGUEZ;

      That I EUFRACIA RODRIGUEZ, hereby accept the land above described from Inay Alvegia Rodrigo and I am much grateful to her and praying further for a longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime’’

. It is now in the possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be vested on her upon my demise.’’

 ISSSUE : 

                  1.  Whether or not  the sale  of Vere from Rodrigo void.

                  2.   Whether or not the donation is inter vivos or mortis causa.

                  3.  Whether or not the Deed is a donation or a will or a devise.

Supreme Court Ruled:

 Rodrigo passed naked title to Rodriguez under a perfected donation inter vivos.

 First.

 Rodrigo stipulated that "if the herein Donee predeceases me, the [Property] will not be reverted to the Donor, but will be inherited by the heirs of x x x Rodriguez," signaling the irrevocability of the passage of title to Rodriguez's estate, waiving Rodrigo's right to reclaim title. This transfer of title was perfected the moment Rodrigo learned of Rodriguez's acceptance of the disposition which, being reflected in the Deed, took place on the day of its execution on 3 May 1965. Rodrigo's acceptance of the transfer underscores its essence as a gift in presenti, not in futuro, as only donations inter vivos need acceptance by the recipient.^[. Rodrigo wished to retain full title over the Property, she could have easily stipulated, as the testator did in another case, that "the donor, may transfer, sell, or encumber to any person or entity the properties here donated x x x"^] or used words to that effect. Instead, Rodrigo expressly waived title over the Property in case Rodriguez predeceases her.

 Petitoners  contending it is a fideicommissary substitution clause (for the non-reversion stipulation).  The question of the Deed's juridical nature, whether it is a will or a donation,  controversy ;  by treating the clause in question as mandating fideicommissary substitution, a mode of testamentary disposition by which the first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. The  petitioner assumes that the Deed is a will. Neither the Deed's text nor the import of the contested clause .

.Second.

What Rodrigo reserved for herself was only the beneficial title to the Property, evident from Rodriguez's undertaking to "give one [half] x x x of the produce of the land to Apoy Alve during her lifetime ;, the Deed's stipulation that "the ownership shall be vested on [Rodriguez] upon my demise," taking into account the non-reversion clause, could only refer to Rodrigo's beneficial title.  ; the donor, while "b[inding] herself to answer to the [donor] and her heirs x x x that none shall question or disturb [the donee's] right," also stipulated that the donation "does not pass title to [the donee] during my lifetime; but when I die, [the donee] shall be the true owner" of the donated parcels of land. ; the disposition as a gift inter vivos,

Taking the deed x x x as a whole, x x x x it is noted that in the same deed [the donor] guaranteed to [the donee] and her heirs and successors, the right to said property thus conferred. From the moment [the donor] guaranteed the right granted by her to [the donee] to the two parcels of land by virtue of the deed of gift, she surrendered such right; otherwise there would be no need to guarantee said right. Therefore, when [the donor] used the words upon which the appellants base their contention that the gift in question is a donation mortis causa [that the gift "does not pass title during my lifetime; but when I die, she shall be the true owner of the two aforementioned parcels"] the donor meant nothing else than that she reserved of herself the possession and usufruct of said two parcels of land until her death, at which time the donee would be able to dispose of them freely.

 Rodrigo still retained full ownership over the Property, it was unnecessary for her to reserve partial usufructuary right over it.

Third.

The existence of consideration other than the donor's death, such as the donor's love and affection to the donee and the services the latter rendered, while also true of devises, nevertheless "corroborates the express irrevocability of x x x [inter vivos] transfers.".

. Dispositions bearing contradictory stipulations    (e.g. "the ownership shall be vested on [Rodriguez] upon my demise" and "devise").   are interpreted wholistically, to give effect to the donor's intent.;  "the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is `to take effect at the death of the donor' are not controlling criteria [but] x x x are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor."the nature of dispositions are resolved to favor inter vivos transfers "to avoid uncertainty as to the ownership of the property subject of the deed."     ^]

Nor can petitioner capitalize on Rodrigo's post-donation transfer of the Property to Vere as proof of her retention of ownership. If such were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of passing ownership. The interest of settled property dispositions counsels against licensing such practice.^]

Having irrevocably transferred naked title over the Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the donation nor dispose of the said property in favor of another." Thus, Rodrigo's post-donation sale of the Property vested no title to Vere. As Vere's successor-in-interest, petitioner acquired no better right than him. On the other hand, respondents bought the Property from Rodriguez, thus acquiring the latter's title which they may invoke against all adverse claimants, .

Petitioner grounds his claim of ownership over the Property through his and Vere's combined possession of the Property for more than ten years, counted from Vere's purchase of the Property from Rodrigo in 1970 until  February 1986 for prescription. The ten year ordinary prescriptive period to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just title and good faith. There is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was the owner thereof, and could

transmit his ownership.Petioner acquired no title over the property.; just title having successively acquired the Property through sale, neither was a good faith possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property "in the concept of an owner" ("como tag-iya") since 21 May 1962, nearly three years before Rodrigo's donation in 3 May 1965 and seven years before Vere bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her, including Vere and petitioner. The payment of  taxe in 1982  finds no basis, infact, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession of the Property, a fact that prevented Vere from being a buyer in good faith. The sale between Rodrigo and petitioner” predecessor-in-interest (Vere) is void .

Lacking good faith possession, petitioner's only other recourse to maintain his claim of ownership by prescription is to show open, continuous and adverse possession of the Property for 30 years.

 Rodrigo never passed ownership over the Property to Rodriguez, namely, that Rodriguez registered the Deed and paid taxes on the Property only in 1982; the text of the Deed and based on the contemporaneous acts of Rodrigo and Rodriguez, the latter, already in possession of the Property since 1962 as Rodrigo admitted, obtained naked title over it upon the Deed's execution in 1965. Neither registration nor tax payment is required to perfect donations.;  Rodriguez obtained the title obtained from Rodrigo under the Deed.

The "language of the [Deed is] x x x confusing and which could admit of possible different interpretations,"; foolowing^[ factors  be considered pivotal to the Deed as donation inter vivos: (1) Rodriguez had been in possession of the Property as owner since 21 May 1962, subject to the delivery of part of the produce to Apoy Alve; (2) the Deed's consideration was not Rodrigo's death but her "love and affection" for Rodriguez, considering the services the latter rendered; (3) Rodrigo waived dominion over the Property in case Rodriguez predeceases her, implying its inclusion in Rodriguez's estate; and (4) Rodriguez accepted the donation in the Deed itself, an act necessary to effectuate donations inter vivos, not devises.

G.R. No. L-27952 February 15, 1982

 RAMIREZ vs.  RAMIREZ

FACTS;

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate; submitted an inventory of the estate together with testamentary dispositions.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle.

ISSUE:  Whether or not the usufruct  of wanda is valid.

Supreme court held;

The validity of the usufruct given to Wanda  covers not only succession by operation of law but also testamentary succession; the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

The usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens .

Taking into consideration of testamentary succession as to substitutions, namely;

1. Simple or common 2. Brief or compendious 3. Reciprocal 4. Fidecommissary. (only  two are principal classes of substitution; simple and fidecommissary)

ART. 859.  Simple or vulgar  -The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. Hence, the vulgar substitution is valid.

G.R. No. 45425 March 27, 1992

 KILAYKO vs. TENGCO

On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento"

On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustquia Lizares.  On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the RTC Negros Occidental.

The required publication of the notice of hearing of the petition having been made, in due course, the probate court issued an order declaring the will probated and appointing Eustaquia as the executrix of the estate of Maria Lizares.

On July 10, 1968, Eustaquia filed a project of partition which was granted by the probate court in an order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them the properties repectively assigned to each and every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks, and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares.

Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order that some properties of Maria Lizares which had been omitted in the partition be adjudicated to her. 8 The Court granted the motion and correspondingly reopened the testate proceedings. It adjudicated to Eustaquia certain shares of stocks, a revolving fund certificate, plantation credits and sugar quota allocations, and real or personal properties of Maria Lizares which were not given by her to any other person in her last will and testament. ⁹

On November 28, 1972, the heirs of Maria Lizares and Eustaquia Lizares executed an agreement of partition and subdivision, thereby terminating their co-ownership over  the lots. ( in the partition).

A year later or on November 23, 1973, Eustquia Lizares died single without any descendant.  In due time, Rodolfo Lizares and Amelo Lizares were appointed joint administrators of Eustquia's intestate estate.

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko,et al. (hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion to reopen once again the testate estate proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. The court denied the motion.

on October 14, 1974, the said movants filed a complaint for recovery of ownership and possession of real property against the joining administrators of the estate of Eustaquia Lizares  and availed their rights by filing a notice of lis pendens with the Register of Deeds of Negros Occidental.

ISSUE ;

1.   whether or not the distribution of the property is valid.

2.   Whether or not RTC has a jurisdiction.

Supreme court ruled;

In testate succession, there can be no valid partition among the heirs until after the will has been probated. The law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory.  The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will.

The will has been already probated, only the partition be examined by the RTC either be accepted or rejected.

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled . . .. A project of partition is merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto.

 In the instance case .the records will show that  distribution and in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by the probate court, the parties and Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their co-ownership over Lots ( in the partition).  These facts taken altogether show that theMaria Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof.

Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was affected through improper means or without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition.

 That Eustaquia had been in possession of the questioned lots since March 2, 1971 up to the time of her death indicates that the distribution pursuant to the decree of partition has already been carried out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of the testate estate proceedings of Maria Lizares, the judicial decree of partition and order of closure of such proceedings was already final and executory, then reglementary period of thirty (30) days having elapsed from the time of its issuance, with no timely appeal having been filed by them. Therefore, they cannot now be permitted to question the adjudication of the properties left by will of Maria Lizares, by filing an independent action for the reconveyance of the very same properties subject of such partition.

A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.

The very object of which the courts were constituted was to put an end to controversies."  The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is the opening of the same by proper motion within the reglementary period, instead of an independent action, the effect of which if successful, would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed .

The order approving the distribution of the estate of Maria Lizares to the heirs instituted in said will has become final and unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and over the parties; r the settlement of the estate of Maria Lizares was a proceeding in rem that was directed against the whole world including Celsa L. Vda. de Kilayko, et al., and the judicial administrators of Eustaquia 

when a testator merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. ⁴⁷ In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy.

G.R. No. 182567               July 13, 2009

EASEMENT

 TELMO vs. BUSTAMANTE,

The  respondent is a co-owner of a real property of 616 square meters in Brgy. Halang, Naic, Cavite,lot 952-A. Petitioner and Elizalde Telmo (Telmos) are the owners of the two (2) parcels of land denominated as Lot 952-B and 952-C, respectively, located at the back of respondent’s lot. When his lot was transgressed by the construction of the Noveleta-Naic-Tagaytay Road, respondent offered for sale the remaining lot to the Telmos. The latter refused because they said they would have no use for it, the remaining portion being covered by the road’s 10-meter easement.

 on May 8, 2005, respondent caused the resurvey of Lot 952-A in the presence of the Telmos. The resurvey showed that the Telmos encroached upon respondent’s lot. Petitioner then uttered, "Hangga’t ako ang municipal engineer ng Naic, Cavite, hindi kayo makakapagtayo ng anuman sa lupa n’yo; hindi ko kayo bibigyan ng building permit."

On May 10, 2005, respondent put up concrete poles on his lot. However, around 7:00 p.m. of the same day, the Telmos and their men allegedly destroyed the concrete poles. The following day, respondent’s relatives went to Brgy. Chairman Consumo to report the destruction of the concrete poles.

Respondent complained that he and his co-owners did not receive any just compensation from the government when it took a portion of their property for the construction of the Noveleta-Naic-Tagaytay Road. Worse, they could not enjoy the use of the remaining part of their lot due to the abusive, Illegal, and unjust acts of the Telmos and Consumo. Respondent charged the latter criminally—

petitioner deniedthat only performed his official duties in requiring an application for a building permit before any structure can be erected on government property. He said that respondent insisted on enclosing with barbed wire and concrete posts the lot that already belonged to the national government, which had now been converted into a national road. He also alleged that if he allowed the enclosures erected by the respondent, other residents would be denied ingress to and egress from their own properties.

Petioner explained to the people present that the property enclosed by respondent is owned by the government and that no one is allowed to construct any fence without a permit from him, as the Municipal Engineer, or from any building official of the local government of Naic, Cavite. Consumo said that the residents affected by the fence constructed by respondent were the ones who pulled out the concrete posts in order to provide access to the national road. These residents included the petitioner, whose trucks used for delivering sand and hollow blocks were enclosed and also denied access.

Petitioner  telmo that respondent could not enclose the property in question unless the latter obtains a building permit from the Office of the Municipal Engineer/Building Official, since it appeared that the subject property was no longer a property of respondent but was converted into government property by virtue of the 30-meter road set-back imposed by the Zoning Ordinance of the Municipality of Naic, Cavite. Elizalde Telmo stated that he did not offer any resistance to the fencing of the property in question.

 petitioner contends that the property claimed and enclosed with concrete posts by respondent was validly taken by the National Government through its power of eminent domain, pursuant to Executive Order No. 113, as amended by Executive Order No. 253, creating the Noveleta-Naic-Tagaytay Road.  petitioner contends that the concrete posts erected by respondent were a public nuisance under Article 694 (4 of the Civil Code, more particularly a nuisance per se, which may be summarily abated under Article 699 (3) of the same Code. Petitioner says that as the Municipal Engineer, he is also the Building Official of Naic, Cavite; and thus, it was well within his authority, pursuant to Section 214, paragraph two (2) of the National Building Code, to order the removal of the concrete posts. Petitioner likewise claims that Section 23 of Revised Philippine Highway Act (Presidential Decree No. 17) mandated him to remove respondent’s concrete posts. Petitioner concludes that since he merely performed his official duties in removing the concrete posts erected by petitioner from the property, which is already owned by the government, he must be absolved of any administrative liability.  Respondents however is no loner interested in pursuing the case, he submitted an Affidavit of Desistance.

ISSUE:  Whether or not the demolition is valid by way  of easement( right of way)

Ruling;

The desistance of the complainant does not necessarily result in the dismissal of the administrative complaint because the Court attaches no persuasive value to a desistance, especially when executed as an afterthought.²⁵ It should be remembered that the issue in an administrative case is not whether the complaint states a cause of action against the respondent, but whether the public officials have breached the norms and standards of the public service.²⁶ Considering that petitioner admitted in his pleadings that he summarily removed the concrete posts erected by respondent, allegedly within the parameters of his authority as Municipal Engineer of Naic, Cavite,  case be decided on its merits rather than on the basis of the desistance of respondent.

It cannot be deniedthat the respondent’s property was taken by the National Government thru the Department of Public Works and Highways when it constructed the Noveleta-Naic-Tagaytay Road. What is not clear from the records of this case is whether respondent’s property was taken as part of the national road itself or only as part of the right-of-way easement therefor. that the re-survey plan²⁷ of his property attached by respondent to his complaint and the survey plan²⁸ of the Noveleta-Naic-Tagaytay Road submitted by petitioner appear to be different. Nevertheless, it is evident from the sketch plans that respondent could not enclose his property because it is now being used by the National Government. Therefore, whatever cause of action respondent may have in his claim for just compensation for the taking of his property, the same should be lodged against the National Government.

 First ;While it is settled that respondent does not have the legal right to enclose the property,  the petitioner should performed his official functions properly.; for ff; provisions

Sec. 215. Abatement of Dangerous Buildings.—When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the decree of danger to life, health, or safety.

Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those which are herein declared as such or are structurally unsafe or not provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health or public welfare because of inadequate maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to the pollution of the site or the community to an intolerable degree.

  Second ;it appears that the concrete posts do not even fall within the scope of the provisions     of the National Building Code.

[A] constructed edifice designed usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure – distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.

The respondent’s concrete posts were not in the nature of a nuisance per se, which is not be the subject of summary abatement sans any judicial proceedings. A nuisance per se is that which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. Evidently, the concrete posts summarily removed by petitioner did not at all pose a hazard to the safety of persons and properties, which would have necessitated immediate and summary abatement. What they did, at most, was to pose an inconvenience to the public by blocking the free passage of people to and from the national road.

Third.  Revised Philippine Highway Act and Department Order No. 52 do not expressly provide for the administrative sanction to be taken against public officials violating their provisions..

Department Order No. 52 directs all District Engineers to immediately remove or cause the removal of all obstructions and prohibited uses within the right-of-way of all national roads in their respective jurisdictions. These obstructions and prohibited uses include, among others, all kinds of private, temporary and permanent structures, such as buildings, houses, shanties, stores, shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences, walls, railings, basketball courts, garbage receptacles, and the like. The Department Order requires the District Engineers to issue notices to the concerned persons to remove the obstructions and prohibited uses within the right-of-way, and shall follow through prompt compliance with these notices and full implementation of the Order. It further provides that appropriate sanctions will be taken against those who fail to comply with its provisions.

G.R. No. 129098             December 6, 2006

CABRERAVS. BALTAZAR 9CABRERA

Facts;

In her Complaint-Affidavit before the Ombudsman; petitioner stated that she entered into a lease agreement with the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations.  she had spent approximately P5,000,000.00 for its construction before the fishpond operations commenced in August 1995. A month later, petitioner learned from newspaper reports of the impending demolition of her fishpond as it was purportedly illegal and blocked the flow of the Pasak River..⁴

Respondents ordered the destruction of petitioner's fishpond. The property was demolished on 10 October 1995 by dynamite blasting. Petitioner alleged that the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage. Petitioner imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their prior knowledge of the existence of the lease agreement. She also charged respondents Governor Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the destruction of the fishpond without first verifying its legality.⁵

Respondents, submitted counter-affidavits, denying the accusations against them. , they insisted that contrary to petitioner's claim, the fishpond was an illegal structure because it was erected on the seashore, at the mouth of the Pasak River, and sat on an inalienable land. They claimed that the demolition was done by the Task Force Bilis Daloy upon the directive of then President Fidel V. Ramos.⁶

Governor lapid averred that the contract of lease between petitioner and the Municipality of Sasmuan, represented by then Mayor Abelardo Panlaqui, was executed two weeks before respondent Mayor Baltazar took his oath of office in 1995.  also argued that under the law, the Department of Agriculture (DA) is the government agency authorized to enter into licensing agreements for fishpond operations, and as per certification by the DA Regional Director, petitioner's fishpond operation was not covered by a fishpond lease agreement or application.  also referred to the certification by the Municipal Health Officer of Sasmuan ;issued before the actual demolition of the fishpond, describing it as a nuisance per se and recommending its abatement. Ombudsman dismissed the case by reason of police power exercise by the LGU .

⁹ Petitioner arguing  under Sec. 149 of Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991, the exclusive authority to grant fishery privileges is vested in the municipalities. Petitioner also questioned the certification by the Municipal Health Officer, alleging that the same was issued before the ocular inspection of the property which took place only on the day of the demolition. Petitioner also contended that a judicial proceeding was necessary to determine whether the property indeed had caused the flooding. Respondents opposed.

ISSUE: 

1.    Whether or not the demolition is valid despite of existence of the contract  of lease.

RULING:

Based on the declaration that the fishpond was a nuisance per se be abated through police power.  ; R.A. No. 7160 applicable to the grant of fishery privileges, the Bureau of Fisheries and Aquatic Resources (BFAR) is the government agency authorized to grant fishpond license or permit in areas not identified as municipal waters or not declared as alienable or disposable by the Department of Environment and Natural Resources (DENR). Since it appears from DENR records that the subject property has not been declared disposable or included in areas devoted for fishpond development,

 the lease agreement entered into by petitioner was void ab initio. In view of the illegality of the lease agreement, the Ombudsman ruled that its demolition was justified. The Ombudsman described the demolition as a valid exercise of police power and in accordance with the provision of Sec. 28 of P.D. No. 704 directing the removal of any fishpen or fishpond that obstructed the free navigation of a stream or lake. It also upheld the authority of the district health officer to determine the abatement of a nuisance without need of judicial proceedings. "those who participated in the blasting of the subject fishpond were only impelled by their desire to serve the best interest of the general public; for the good and the highest good."

The Department of Agriculture (DA) is the government agency authorized to enter into licensing agreements for fishpond operations, and as per certification by the DA Regional Director, petitioner's fishpond operation was not covered by a fishpond lease agreement or application.  the certification by the Municipal Health Officer of Sasmuan issued before the actual demolition of the fishpond,  as a nuisance per se and subject for abatement.

G.R. No. 184478               March 21, 2012

PEREZ VS.    MADRONA

FACTS;

Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a residential property located in Lot 22, Block 5,  Subdivision, Phase II, Marikina City and covered by Transfer Certificate of Title No. 169365⁴ of the Registry of Deeds of Marikina. In 1989, respondents built their house thereon and enclosed it with a concrete fence and steel gate.

In 1999, respondents received the following letter dated May 25, 1999 from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office.  For a demolition notice.

As response, respondent Madrona sent petitioner a three-page letter⁶ dated June 8, 1999 stating that the May 25, 1999 letter (1) contained an accusation libelous in nature as it is condemning him and his property without due process; (2) has no basis and authority since there is no court order authorizing him to demolish their structure; (3) cited legal bases which do not expressly give petitioner authority to demolish; and (4) contained a false accusation since their fence did not in fact extend to the sidewalk.

On June 9, 1999, respondents received a letter⁷ from petitioner requesting them to provide his office a copy of the relocation survey on the subject property. Respondents, however, did not oblige because it was as if petitioner was fishing evidence from them.

More than a year later or on February 28, 2001, petitioner sent another letter⁸ with the same contents as the May 25, 1999 letter but this time giving respondents ten days from receipt thereof to remove the structure allegedly protruding to the sidewalk. This prompted respondents to file a complaint⁹ for injunction before the Marikina City RTC on March 12, 2001.

Respondents likewise sought the issuance of a temporary restraining order (TRO) and a writ of preliminary injunction to enjoin petitioner and all persons acting under him from doing any act of demolition on their property and that after trial, the injunction be made permanent.

ISSUE ;   1.Whether or not the demolition  order is proper.

1.     Whether or not the rights of the respondents violated.  

Ruling:

For injunction to issue, two requisites must concur: first, there must be a right to be protected and second, the acts against which the injunction is to be directed are violative of said right. Here, the two requisites are clearly present: there is a right to be protected, that is, respondents’ right over their concrete fence which cannot be removed without due process; and the act, the summary demolition of the concrete fence, against which the injunction is directed, would violate said right.

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity .. The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention.

Respondents’ fence is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still exists. If petitioner believes that respondents’ fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted.

Respondents, for their part, counter that the presumption of regularity has been negated by the fact that despite their reply to the first notice, which put petitioner on notice that what he was doing was ultra vires, he still reiterated his earlier demand and threat of demolition. Having been warned by respondents that his acts were in fact violations of law, petitioner should have been more circumspect in his actions and should have pursued the proper remedies that were more in consonance with the dictates of due process.

That respondents, being lawful owners of the subject property, are entitled to the peaceful and open possession of every inch of their property and petitioner’s threat to demolish the concrete fence around their property is tantamount to a violation of their rights as property owners who are entitled to protection under the Constitution and laws.  there is no showing that respondents’ fence is a nuisance per se and presents an immediate danger to the community’s welfare, nor is there basis for petitioner’s claim that the fence has encroached on the sidewalk as to justify its summary demolition.