Published — November 3, 2017
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Related Topic: Dealing with Abandoned Lease and Disappearing Lessee
In every lease agreement concerning real property, among the basic obligations of the lessee aside from payment of rentals and taking care of the leased premises, is the obligation to vacate the rented place and surrender the premises to the possession of the lessor upon termination of the lease.
Many lessors, however, find recovery of possession of the leased premises problematic, as lessees tend to hold on to the rented place instead of vacating it despite termination of their leasehold rights. Unfortunately for the lessor, he is not allowed to take the law into his own hands and forcibly eject the lessee out of his property. Thus, many of them are constrained to resort to legal action just to evict the overstaying lessee.
So what are these remedies that the aggrieved lessor may avail of? Under our laws, the lessor may resort to legal actions for (1) unlawful detainer, or (2) accion publiciana.
Unlawful detainer
If the lessee continues occupying the premises despite the termination of the lease, over the lessor’s objection, the lessee shall be subject to the responsibilities of a possessor in bad faith [Art. 1671, Civil Code], and shall be considered to be detaining the premises unlawfully. In such case, the lessor may institute in court an action for unlawful detainer (also commonly known as ejectment).
The termination of the lease may be due to various causes such as but not limited to the expiration of the term of the lease, failure of the lessee to pay the stipulated rentals, violation of any of the conditions agreed upon in the contract, devoting premises to any use or service not stipulated upon by the parties, or when the lessee does not take care of the premises with due diligence [See: Arts. 1673, 1657]. Regardless of the cause of the termination of the lease, what is clear is that the occupancy should be lawful at the start but later on became unlawful by continuing the occupancy despite not anymore having the right to do so [See: G.R. No. 174436].
Actions for unlawful detainer, however, may be proceeded only after written demand to pay the rentals or comply with the conditions of the lease, and to vacate, is made upon the lessee. Such demand may be served upon the person found on the premises, or by posting such demand on the premises if no person is found thereon. If the lessee fails to comply with the written demand after 15 days in case of land or 5 days in the case of buildings, the lessor may then proceed with an ejectment suit against the lessee [See: Sec. 2, Rule 70, Rules of Court].
It must be kept in mind, though, that an action for unlawful detainer should be filed within one year from the date a demand to vacate was last made. [See: G.R. No. 194880].
Also, the issue to be resolved in actions for unlawful detainer is merely the right to physical possession [See: G.R. No. 132424]. Any judgment rendered in unlawful detainer cases shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties regarding title to the land or building [Sec. 18, Rule 70].
Accion publiciana
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 already elapsed from the time the occupancy had become unlawful, the action will not be one of unlawful detainer, but an accion publiciana [See: G.R. No. 132424].
Unlike in unlawful detainer, which follows the Rules on Summary Procedure, accion publiciana follows the court’s regular procedure, which necessarily takes more time to conclude. Thus, in unlawful detainer cases where the only issue to be resolved is the right to physical possession over the property, accion publiciana cases tend to be more exhaustive, considering that the better right of possession has to be determined by the court. Therefore, the fact that more than one year had already elapsed from the time the occupancy became unlawful, accion publiciana would be the proper remedy because the resolution of the issue of possession is not regarded with as much urgency in accion publiciana as that in unlawful detainer cases.
Moreover, to justify an ejectment case, the following conditions must be present, otherwise, the remedy is accion publiciana and not unlawful detainer:
- Initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff;
- Eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latter’s right of possession;
- Thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and
- Within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment [G.R. No. 187944].
The above-enumerated factual allegations must appear on the face of the complaint. When the complaint fails to mention these facts that constitute unlawful detainer, as where it does not state how and when dispossession started, the remedy should be accion publiciana in the proper Regional Trial Court [See: G.R. No. 132424].
Given the foregoing, though it may be true that unlawful detainer or ejectment may provide a more speedy remedy than accion publiciana, there are certain conditions that need to be complied with in order to justify an ejectment suit. Lessors, however, still have recourse through an accion publiciana if the required conditions are not present to warrant an action for unlawful detainer. But whatever the legal action is, it must always be remembered that having a written lease agreement should serve as a reminder to both contracting parties that they have enforceable rights and obligations between them, and compliance in good faith is still the best way to build peaceful and long term leasehold relationships.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding lease and other special contracts, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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is it ok for the lessee of a lot to sell the building he built on said lot to a third party who will be substitute as the new lessee?
Is it possible for a Lessee (one who leases only the lot) to sell his improvements (like a house built on the leased lot) to a third party?
And said third party will be the one to continue the lease?
Dear Atty Arjay,
I am planning to buy a property from Bangko Sentral. it is 238 sqm, unfortunately, it is occupied by informal settlers. BSP told the the buyer will be the one responsible of the eviction of the occupants. I’m just wondering how much it cost to evict the occupants, they are 2 families and the house is just “barong-barong”.What are the steps i need to do to secure they will leave the properties once i buy it.
Dear BREN DENVER LIMON,
You may not have any other recourse but to resort to legal action, because you cannot evict them by force as you cannot put the law in your hands. Go to the barangay first and file a complaint for ejectment. That would be your start. During the barangay conciliation, you may be asked to pay the families in exchange of leaving. If you believe that the amount is reasonable (it is impossible for me to predict how much they would want from you), then you may go for it. Any barangay compromise settlement may be executed as judgment in a court, so that will be your advantage.
However, when the barangay proceedings have failed, you will now be allowed to go to court. Thus, you start with a barangay complaint first.
-Atty. Arjay
Recently, our tenants in one of our house is becoming a pain in the neck these past months due to their noises and violations (which was already taken cared of). And after a lot of talking and a demand letter being given to them stating that they should not repeat any violations, they started not paying their rent (maybe due to the incident). They want to get out of the house but decided not to since they won’t be able to reimburse their 2 months deposit as they didn’t finish the 1 year contract. So, I am assuming that they decided not to pay the rent until they are forcefully evicted in order to (in a way) get their 2 months deposit back.
According to the law, I can only evict a tenant if they didn’t pay 3 months of rent or more. But wouldn’t this be unfair to us since they won’t have any punishments other than being evicted? The 2 months deposit isn’t even enough to cover the expenses of the 3 months unpaid rent plus the possibility of unpaid water and electric utilities and the repairs that needs to be done.
So, is there any way for us to make them pay all the damages, unpaid utilities and rent after they are legally evicted? Under our contract, it is stated:
“Moreover, by way of a security or to secure the payment of any of the unpaid obligations of the LESSEE, the LESSEE consents and authorizes the LESSOR to retain possession of any of all the furniture, fixtures and equipment’s that may found on the premises as belongings to the LESSEE until such time that all the unpaid obligations of the LESSEE are paid or settled.
If after ten (10) days from the date the LESSOR shall have taken possession of the aforesaid furniture, fixtures and equipment by way of security, the LESSEE still fails to pay or settle its unpaid obligations to the LESSOR the LESSEE hereby consents and authorizes the LESSOR to sell by way of public or private sale any or all the furniture’s fixtures equipment as may be sufficient to pay or settle the LESSEE’s unpaid obligations…”
I hope for your reply.
Dear Glenn,
In unlawful detainer (ejectment) cases, it is a part of the court’s judgment to order the defendant to pay the unpaid rent. In some instances, the court also awards damages, as long as you pray for it, and provided that you are able to prove your entitlement thereto.
As for the unpaid utilities, the security deposit is intended to answer for that, so apply accordingly.
-Atty. Arjay
Hello! My kids had a gap with the lessor niece kids because of it they are forcing us to leave our apartment. They ask our neighbors to sign a paper stating that they will going to evict us and forward it to the baranggay. What will we do? Our landlord is not even asking us to leave. Just her mother in law and brother in law.
Dear Hazel Serrano,
If at all, it would be the lessor himself, and not the in-laws or the neighbors, who should have the right to have you evicted from the leased apartment. Those other people are mere strangers to the lease contract between you and the lessor.
And also, unless the lease contract expires, or you violate your contract or stopped paying your rent, not even the lessor can evict you from the leased apartment.
-Atty. Arjay
Good day! I have a tenant who has been staying in our apartment for 10 months though our contract is for only 6 months. We didnt give another letter nor contract for extension but we let them stay. We initially required them to pay only 2 months of deposit amounting to 7,000 total. The problem is, they have not paid their 2 months rent which means that they have already used their deposit aside from that, they have unpaid meralco bills since October amounting to 6,000. And I was advised by Meralco that the electric meter will be removed and confiscated if unpaid bills are not settled in 60days. I sent lots of messages to my tenant but she’s just ignoring it. She once replied and promised to settle her unpaid rent and bills two weeks ago but it never happened. What action should I do? Is it legal to lock the apartment? Pls help.
Dear Mitch Bangayan,
No, it is not legal to lock the apartment even though the occupant is already overstaying, as you may be held liable for damages by doing that. As the old saying goes, “no one should put the law into his own hands”. Based on your situation, you would now be constrained to eject your tenant through court action. In the meantime, you may have to settle the electric bills yourself, but you may claim damages from your tenant in the same court action for the electric bill liabilities that you incurred because of him.
-Atty. Arjay