127.

  May a person who had not been in possession of the

premises bring an action for unlawful detainer of the premises?
[134]
 Explain.
Ans: Yes, a perusal of S1R70 shows that prior physical
possession is not required in unlawful detainer, unlike in
forcible entry where the plaintiff should have been “deprived of
the possession”. What is important in unlawful detainer is that
the plaintiff is a person who has a right to possession and
“against whom the possession of any land or building is
unlawfully withheld”.

128.  B sold a land to D with right to repurchase within one

year. Ben remained in possession of the property. When B
failed to repurchase the same, title was consolidated in favor of
D. Despite demand, B refused to vacate land, constraining D to
file a complaint for unlawful detainer. In his defense, B
contended that the case should be dismissed because D had
never been in possession of the property. Is B correct? (08 Bar
Q17).[135] Explain
Ans: No Ben is not correct. Under S1 R70, prior physical
possession is not required of the plaintiff in unlawful detainer.

129.  D stayed in P’s land by the latter’s tolerance. P then asked

D to vacate the land as he was going to reside therein. D
refused. Should P file an action for forcible entry or unlawful
detainer? [136] Explain
Ans: Unlawful detainer. D’s possession was initially lawful
albeit only through P’s tolerance. It became unlawful after D
refused to vacate after being asked to do so by P. Where a
person is allowed to stay in another’s land or building by
tolerance, there is an implied agreement that the occupant will
leave once the owner desires to make use of the premises.

130.  In a complaint for unlawful detainer, is a simple allegation

that the “defendant is unlawfully with holding possession from
the plaintiff” sufficient? [137] Explain
Ans: Yes, such an allegation is sufficient for the words
“unlawfully withholding” imply possession on the defendant’s
part, which was lawful at the start, expired later as a right, and
which is being withheld by the defendant.

131.  Can the mortgagee-buyer of a foreclosed property file an

action for unlawful detainer against the mortgagor after the
lapse of the redemption period?[138] Explain
Ans: Yes, this is because the mortgagee-buyer is entitled to
the possession after the expiration of the redemption period. In
such a case the mortgagor’s right to stay in the premises by
virtue of the real estate mortgage has terminated. The
mortgagee-buyer may ask for a writ of possession or file an
action terminated.

132.  Would the pendency of the suit for the annulment of the

mortgage bar the ejectment suit?[139] Explain
Ans: Pendency of a suit for annulment of the mortgage is not a
bar to the ejectment suit since the issue in the latter is merely
physical possession not ownership.

133.  What are the two kinds of unlawful detainer? [140] Explain

134.  Is prior demand required in an unlawful detainer

case? [141]Explain
Ans: No, as a rule prior demand is not required in an unlawful
detainer case. The exception is where the unlawful detainer
suit is brought by the lessor against the lessee on the ground
of the latter’s failure or to comply with the conditions of the
lease.

135.  On 10 January 1990, X leased the warehouse of A under a

lease contract with a period of five years. On 8 June 1996, A
filed an unlawful detainer case against X without a prior
demand for X to avacte the premises. (a) Can X contest his
ejectment on the ground that there is no prior demand for him
to vacate the premises? (97 Bar Q5a) xxx [142] Explain
Ans: Yes, X can contest his ejectment on the ground that there
was no prior demand for him to vacate the premises.
 Under Article 1670 of the Civil Code, an implied new
lease (tacita reconduccion) arises if at the end of the leased,
the lessee shall continue enjoying the thing leased for 15 days
with the acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given.

136.  What is the prescriptive period for bringing an action for

unlawful detainer? [143] Explain
Ans: Within 1 year after the unlawful withholding of
possession.

137.  What are the requirements of the demand or notice under

S2 R70? [144] Explain
Ans: 1. The demand made on the lessee must be to pay or to
comply with the conditions of the lease and to vacate.
2. if demand cannot be made upon the lessee himself, by
serving written notice of such demand upon the person found
in the premises or by posting notice of such demand on the
premises if no person be found thereon.
3. the lessee failed to comply with the demand within 15
days in case of land and 5 days in case of building. The 15/5-
day period is counted from notice if made upon the lessee or
the person found in the premises or from the posting of the
notice of demand on the premises if no person be found
thereon.

138.  Is the demand under S2 R70 required to be in

writing? [145] Explain
Ans: the demand made on the lessee himself need not be in
writing.
The demand should be in writing however if the demand
cannot be made on the lessee himself. In such case, the
written demand should be served on the person found in the
premises or posted in the premises if no person be found
thereon.

139.  The lessee failed to pay the rent for 3 months. The lessor
served a written notice upon the lessee to pay the rent or
vacate the premises. The lessee failed to either pay or vacate
within 5 days from receipt of the notice. May the lessor file a
suit for unlawful detainer against the lessee? [146] Explain
Ans: No. The jurisdictional demand in unlawful detainer is a
demand to pay and vacate. As worded, plaintiff’s demand gave
defendant an alternative of either paying the rent or vacating.
When defendant then elected to stay after such demand, he
became merely a debtor for the unpaid rental and cannot be
ejected until he defaults in payment and a demand is made
upon him.

140.  In the preceding problem, what if the lessor served a

demand to vacate without any demand to pay? [147]
Ans: It is submitted that the demand is sufficient for purposes
of complying with the jurisdictional requirement. The reason is
that the defendant is left with no choice to defeat ejectment,
unlike in a demand letter couched as “pay/comply or vacate”.

141.  D sold her residential land to P but D requested that she

be allowed to live in the house with a promise to vacate as
soon as she was able to find a new residence. After D had been
living in the house for one year, P demanded that D vacate but
D failed or refused to do so. P filed an unlawful detainer case
against D and won. On appeal the RTC held that there was no
valid demand to pay and vacate since the demand was to
vacate only. Was the RTC correct?[148] Explain
Ans: No. Demand to vacate is sufficient where the defendant’s
possession was based on the plaintiff’s tolerance, and not on
any contract between them.

142.  What is an implied new lease? [149] Explain.

Ans: It is a new lease which results if at the end of the lease
contract the lessee should continue enjoying the thing leased
for 15 days with the acquiescence of the lessor, and unless a
notice to the contrary by either party has previously been
given. The period of the lease shall be for the time established
in Articles 1682 and 1687 of the Civil Code and the other terms
of the contract shall be revived.
143.  What are the consequences if a complaint for forcible
entry or unlawful detainer is defective, that is the allegations
therein do not make out a case for forcible entry or unlawful
detainer? [150] Explain
Ans: The following are the consequences if a complaint for
forcible entry or unlawful detainer is so defective.
1. The action would be treated as an accion publiciana or
accion reivindicatoria and hence governed by the regular
procedure.
2. The MTC would not have jurisdiction if the assessed value
as alleged in the complaint exceeds the jurisdictional
amount or if there is no allegation regarding the assessed
value.

144.  Are ejectment cases governed by the Rule on Summary

Procedure? [151] Explain
Ans: Yes, all actions for forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals
sought to be recovered, shall be governed by the Rule on
Summary Procedure.

145.  P filed an action for unlawful detainer against D alleging

that D had not been paying rent for over a year and that D
refused to leave despite P’s demand upon him to pay and
vacate. D filed a verified answer in which he interposed a
counterclaim for collection of a P200,000 loan he had extended
to P for the latter to buy a used car. If you were the counsel for
P what would you do? [152] Explain
Ans: I would file a motion to expunge the counterclaim. Under
S4 R70 the only pleadings allowed in an ejectment case are the
complaint, compulsory counterclaim, cross-claim and the
answers thereto. The counterclaim of D is permissive since it
does not arise out of nor is it connected to the lease between P
and D.
146.  In an action for unlawful detainer in the MTC of Manila,
Defendant D raised in his answer the defense that plaintiff A is
not real owner of the house subject of the suit. X filed a
counterclaim against A for the collection of a debt of P380,000
plus accrued interest of P15,000 and attorney’s fees of
P20,000. (a) Does the MTC have jurisdiction over the
counterclaim? [153] Explain
Ans: Yes, the MTC has subject-matter jurisdiction over the
counterclaim.
Under BP Blg. 129, the MTC in Metro Manila has jurisdiction
where the amount of the claim, excluding interests and
attorney’s fees, does not exceed P400,000.
Here the amount of the counterclaim, exclusive of interests
and costs, does not exceed P400,000. Hence the MTC has
jurisdiction.
However, the MTC does not have jurisdiction to act on the
counterclaim since a permissive counterclaim is not allowed
under the Rule on Summary Procedure. Hence, it is a mere
scrap of paper which should not be considered by the court.

147.  P filed with the MeTC of Makati City an action for forcible
entry against D. The complaint alleges that the land subject of
the action is in Manila City. Without even waiting for the
answer of D, the judge dismissed the complaint on the ground
of improper venue. Was the judge’s action proper?[154] Explain.
Ans: Yes, the judge’s action was proper.
Under S5 R70, the court may, from an examination of the
allegations in the complaint and such evidence as may be
attached thereto, dismiss the case out-right on any of the
grounds for the dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it shall forthwith
issue summons.

148.  Within what time should the defendant in an ejectment

case file and serve his answer?[155]
Ans: Within 10 days from service of summons. (S6 R70). 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. Note that a motion for extension of time to file
answer is prohibited. (S13 R70).
149.  Within what time should a party file his answer to
counterclaims or cross-claims?[156]

150.  Will a motion for extension of time to file answer be

allowed?[157] Explain.

151.  What is the result of defenses available to the defendant

are not pleaded in the answer?[158] Explain.
Ans: Affirmative and negative defenses not pleaded in the
answer are deemed waived, except lack of subject-matter
jurisdiction. (S6 R70).

152.  P filed a complaint for unlawful detainer against D. D filed

his answer but through inadvertence failed to set up therein a
compulsory counterclaim. May the court in the interest of
justice allow D to set up the compulsory counterclaim in an
amended answer?[159] Explain.

153.  What is the effect if the defendant fails to answer?

[160]
 Explain.
Ans: Should the defendant fail to answer the complaint within
10 days from service of summons, the court, motu pro prio or
on plaintiff’s motion, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to
what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney’s fees claimed for
being excessive or otherwise unconscionable, without prejudice
to the applicability of S3(c) R9 if there are two or more
defendants.

154.  Based on the preceding problem, will it be correct for the

court to reduce the amount of damages and attorney’s fees?
[161]
 Explain.

155.  When is the preliminary conference held?[162]

Ans: Not later than 30 days after the last answer is filed, a
preliminary conference shall be held. (S8 R70).
156.  Are the provisions of R18 on pre-trial applicable to the
preliminary conference?[163] Explain.
Ans: Yes unless the same are inconsistent with the provisions
of R70.

157.  What is the result of the failure of a party to appeal during

the preliminary conference?[164] Explain.
Ans: The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his complaint.
The defendant who appears in the absence of the plaintiff shall
be entitled to judgement on his counter-claim in accordance
with S7.
If sole defendant shall fail to appear, the plaintiff shall
likewise be entitled to judgement in accordance with S7 R70.
This procedure shall not apply where one of two or more
defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary
conference. (S8 R70).

158.  Is a full-blown trial conducted in ejectment cases?

[165]
 Explain.
Ans: No instead within 10 days from receipt of the preliminary
conference order, the parties shall submit the affidavits of their
witnesses and other evidence on the factual issues defined in
the order, together with their position papers setting forth, the
law and the facts relied upon by them. (S10 R70).

159.  When shall the court render judgment?[166]

Ans: Within 30 days after receipt of the affidavits and position
papers, or the expiration of the period for filing the same, the
court shall render judgment.

160.  What may the court do if there is no showing of a referral

in a case requiring referral for conciliation? [167] Explain.
Ans: The court may sua sponte or upon motion dismiss the
case without prejudice. The case may be revived only after
that requirement shall have been complied with (S12 R70).
161.  E was the registered owner of a huge parcel of land
located in a remote part of Barangay Kidalos, Kapatagan,
Lanao del Norte. E went to a three-year vacation in Canada.
When he returned in 2014 and visited his land, he was
surprised to see that J, his friend, had occupied the land and
built his house thereon. Both E and J were residents of the
same barangay. To recover possession, and after passing
through the lupon, E filed an complaint for ejectment in the
MTC alleging that she is the true owner of the land as
evidenced by his certificate of title and tax declaration which
showed that the assessed value of the property was P22,000.
On the other hand, J refuted E’s claim of ownership and
submitted in evidence a deed of absolute sale between him and
E. after the filing of J’s answer, the MTC observed that the real
issue was one of ownership and not of possession. Hence, the
MTC dismissed the complaint for lack of jurisdiction. On appeal
to the RTC, a full-blown trial was conducted as if the case was
originally filed with it. The RTC reasoned that based on the
assessed value of the property, it was the court of proper
jurisdiction. Eventually, the RTC rendered a judgment declaring
J as the owner of the land and, hence, entitled to the
possession thereof. (a) Was the MTC correct in dismissing the
complaint for lack of jurisdiction? [168] Discuss. (b) Was the RTC
correct in ruling that based on the assessed value of the
property, the case was within its original jurisdiction and,
hence, it may conduct a full-blown trial of the appealed case as
if it was originally filed with it?[169] Discuss.

162.  In an ejectment case, the court dismissed the complaint

for failure of the plaintiff to appear during the preliminary
conference. The plaintiff filed a motion for reconsideration of
the dismissal order. The defendant contends that the dismissal
had become final and executor since the motion for
reconsideration is a prohibited pleading and hence does not
suspend the reglementary period to appeal. Is the Defendant
correct?[170] Explain.
Ans: No. the motion for reconsideration of a judgment
prohibited under Section 19(c) of the RSP is that which seeks
reconsideration of a judgment rendered by the court after trail
on merits. The dismissal order is not a judgment on the merits
after trial of the case.

163.  A occupied Lot 153 since April 2016. B claimed ownership

of the land and after conciliation proceddings in the barangay
failed, he filed an action to recover ownership thereof on
January 6, 2017 in the RTC, the assessed value of the lot being
P30,000.00.  A, in his Answer, invoked the affirmative defense
that the the case should have been one for ejectment and be
filed in the MTC considering that A’s possession, as reflected in
the Complaint, did not last for more than one year. The RTC
did not dismiss the case on the basis of the affirmative defense
of A. Was the RTC correct?[171] Explain.

164.  Is preliminary injunction available in ejectment cases?

[172]
 Explain.
Ans: Yes. The court may grant preliminary injunction, in
accordance with the provisions of R58 to prevent the defendant
from committing further acts of dispossession against the
plaintiff.

165.  In ejectment cases, may the defendant raise the defense

of ownership?[173] Explain.
Ans: The general rule is that in ejectment cases the defendant
may not raise the defense of ownership in his pleadings. The
reason is that the issue in ejectment cases is not ownership
but merely physical possession.
The exception is where the question of possession cannot be
resolved without deciding the issue of ownership; provided,
that the issue of ownership shall be resolved only to determine
the issue of possession. (S16 R70).

166.  If after trial the court finds that the allegations of the
complaint are true, what are the reliefs it shall grant to the
plaintiff in the judgment?[174] Enumerate.
Ans: (RARAC)
1. Restitution of the premises.
 2. The sum justly due as arrears of rent or as reasonable
compensation for the occupation and use of the premises.
3. Attorney’s fees, and
4. Costs. (S17 R70).

167.  Can the trial court award moral and exemplary damages

in favor of the plaintiff?[175] Explain.
Ans: No. The only damages that may be awarded by the court
are those provided for in S17 R70.

168.  In ejectment cases, may the court award attorney’s fees

exceeding P20,000?[176] Explain.
Ans: Yes. The limitation in Section 1(a)(1) of the Rule on
Summary Procedure was deleted in S7 and S17 R70 of the
1997 Rules of Civil Procedure.