Rule 70

Kinds of Action for recovery of possession

Accion interdictal (ejectment) summary action for the recovery of physical possession where the
dispossession has not lasted for more than a year.
All cases of forcible entry and unlawful detainer irrespective of the amount of damages or
unpaid rentals sought to be recovered should be brought to the MTC, however, if not brought
within one year, RTC has jurisdiction.
Accion publiciana a plenary action for the recovery of the real right of possession when the
dispossession has lasted for more than one year.
Accion reinvindicatoria - An action for the recovery of ownership, which necessarily includes the
recovery of possession.
RTC has jurisdiction if the value of the property exceeds Php 20,000 outside metro manila; exceeds Php
50,000 within metro manila.
MTC has jurisdiction if the value does not exceed the above amounts.
Nature of proceedings in accion interdictal: ejectment cases are summary proceedings intended to
provide an expeditious means of protecting actual possession or right to possession of property.
Reason: the owners of property have no authority to use force and violence to eject alleged usurpers
who were in prior physical possession of it. They must file the appropriate action in court and should not
take the law in their own hands.
Note: the rule on summary procedure applies only in cases filed before the MTC.
When the decision of the MTC is appealed to the RTC, the applicable rules are those of the latter.
Section 1. who may institute proceedings and when:
1. Forcible entry a person deprived of possession of any land or building by force, intimidation,
threat, strategy or stealth (FITSS)
2. Unlawful detainer a. lessor, debtor, vendee or other person against ehom possession of aby
land or building is unlawfully withheld; and b. legal representatives or assigns of any such lessor,
vendor, vendee, or other person against whom possession of any land or building is unlawfully
withheld.
Against whom action may be maintained:
1. The action of forcible entry and unlawful detainer may be maintained only against one in
possession at the commencement of the action;
2. Tenant with right of possession may bring action against another tenant;

3. Vendor may bring action for ejectment against vendee upon failure to pay the installments;
4. Forcible entry and unlawful detainer lie even against the very owner of property;
5. The action may be maintained against government officials or agents acting in behalf of the
government even if the government is not made a party to the action. However, if in addition to
the recovery of possession, the plaintiff also seeks the recovery of damages or rentals which
would thereby result in financial liability to the government, the action cannot be maintained
under the rule of non-suability of the state without its consent;
Note: amount of rents and damages claimed does not affect the jurisdiction of the municipal court
because they are only incidental or accessory to the main action.
But if only rents or damages are claimed in an ordinary action, the action is personal and the
amount claimed determines whether it falls within the jurisdiction of RTC or MTC.
From what date is the one year period counted?
Forcible entry it is counted from the date of the entry or taking of possession by the use of force,
intimidation, threat, strategy or stealth.
Note: in the case of vda de prieto v reyes, the supreme court acknowledge the difference between
an entry secured by force or violence and one obtained by stealth. The owner or possessor of the
land could not be expected to enforce his right to its possession against the illegal occupant and sue
the latter before learning of the clandestine intrusion. And to deprive the lawful possessor of the
benefit of the summary action under rule 70 simply because the stealthy intruder manages to
conceal the trespass for more than a year would be to reward clandestine usurpation even if it is
unlawful. The one year period in such case should be counted from the demand to vacate upon
learning of the entry by stealth.
In order to constitute force that would justify a forcible entry case, trespasser does not have to
institute a state of war. The act of going to the property and excluding the lawful possessor
therefrom necessarily implies the exertion of force over the property which is all that is necessary
and sufficient to show that the action is based on the provisions of section 1, rule 70 of the rules of
court (bunyi)
Mandatory allegations for the municipal trial court to acquire jurisdiction over forcible entry. First,
the plaintiff must allege his prior physical possession of the property. second, he must also allege
that he was deprived of his possession by any of the means provided for in section 1, rule 70 of the
rules of court, namely, force, intimidation, threat, stealth and strategy. If the alleged dispossession
did not occur by any of these means, the proper recourse is to file not an action for forcible entry
but a plenary action to recover possession (benguet corporation)
Two. Unlawful detainer
a. From the date of the last demand to vacate in case of non-payment of rent or non-compliance
with the conditions of the lease. Exception: when the subsequent demands were merely in the

nature of reminders od the original demand, in which case the one-year period is counted from
the first demand.
b. From the date of the notice to quit, in case of a tacit renewal of the lease (tacita reconduccion)
as when with the acquiescence of the lessor, the lessee continues enjoying the thing leased for
fifteen days, as provided in article 1670 of the civil code.
c. From the date of the revocation of the permit in case of occupancy on mere tolerance or under
a temporary permit.
Where defendants entry upon the land was with plaintiffs tolerance right from the date and fact of
entry, unlawful detainer proceedings may be instituted within one year from the demand on him to
vacate as there is an implied promise on his part to vacate on demand. (yu v de lara)
Forcible entry
Possession of the land by the defendant is unlawful from the beginning as he acquires possession by
force, intimidation, threat, stealth and strategy.
No previous demand for the defendant to vacate the premises is necessary.
The plaintiff must prove that he was in prior physical possession of the premises until he was deprived
thereof by the defendant.
The one year period is generally counted from the actual entry on the land.
Unlawful detainer
Possession is inceptively lawful but if becomes illegal by reason of the termination of his right to the
possession of the property under his contract with the plaintiff.
Demand is jurisdictional if the ground is non-payment of rentals or failure to comply with lease contract.
The plaintiff need not have been in prior physical possession.
Period is counted from the date of last demand or last letter of demand.
While it is true that the only issue in forcible entry or unlawful detainer action is the physical possession
of the leased property, that is, possession de facto not possession de jure yet the court may go
beyond that if only to prove the nature of possession. The court may receive evidence upon the
question of title solely for the purpose of determining the character and extent of possession and
damages for the detention (consing)
Even when the property is idle or unguarded, an action for forcible entry may still prosper. While prior
possession is admittedly an indispensable requirement, it is evident from the principle that possession
can be acquired not only by material occupation but also by the fact that a thing is subject to the action
of ones will or by the proper acts and legal formalities established for acquiring rights. Possession can

also be acquired by juridical acts and one need not have actual or physical occupation of every square
inch of the property at all times to be considered in possession of it. (NUNEZ)
In an action for unlawful detainer, a simple allegation that defendant is unlawfully withholding
possession from plaintiff is made sufficient, for the words unlawful withholding imply possession on
the part of the defendant, which was legal in the beginning having no other source that a contract,
express or implied, which has later expired as a right and is being withheld by defendant. (Tiamco)
Section 2. lessor to proceed against lessee only after demand
The action shall be commenced only after demand and the lessee fails to comply therewith after:
1. Fifteen days in the case of lands;
2. Five days in case of buildings.
Demand contemplated under this section is jurisdictional. This is a two-fold demand:
1. To pay and vacate; or
2. To comply with the conditions of the lease and vacate.
Once there is default on the part of the lessee by failure to pay or to comply with the conditions of the
lease, the action may be filed by the lessor after the lessee fails to comply with the demand to pay or
comply with the conditions of the lease and to vacate within fifteen days in case of land or five days in
case of buildings.
Mere failure to pay rent does not ipso facto make unlawful the tenants possession. It is the demand to
vacate and refusal to vacate which makes unlawful the withholding of possession (canaynay)
A demand is a pre-requisite to an action for unlawful detainer when the action is for failure to pay rent
due or to comply with the conditions of his lease, and not where the action is to terminate the lease
because of the expiration of its term (Co Tiamco)
The acceptance of rentals in arrears does not constitute waiver of default in payment of rentals
(clutario)
The term vacate need not be stated if there are other terms definitely implying that the tenant should
vacate (golden gate)
However, the court rules that the rule in golden gate will not apply if the term of the demand is
ambiguous in nature. (La Campana)
There can only be a cause of action if after failure to pay the rents due, a demand to pay was made and
there was refusal on the part of the lessee. If the lessee pays as demanded, there is no cause of action. If
he refuses, the cause of action accrues, in which case, a demand to pay and vacate must again be made
as a jurisdictional requirement. (desbarats)

Lessee not permitted to deny the lessors title: the fact of lease having been admitted by the private
respondent as well as the expiration of the term thereof, there can be no question that the issue of
ownership is foreign to the action. Indeed, it matters not that private respondent was already an
occupant of the leased premises when he executed and signed the contract of lease, because the basis
of the ejectment suit is the very contract of lease. (tiu)
Two options when based in contract of lease
1. Specific performance demand referred to is to pay rent or to comply with the condition of
lease violated.
2. Rescission demand must be for lessee to pay rent or to comply with the conditions of the lease
and to vacate (CETUS)
How is demand made:
1.
2.
3.
4.

Personally;
Service of written notice of such demand upon the person found in the premises;
Posting it in THE PREMISES IF NO PERSON IS FOUND THEREON;
Registered mail (Co Keng Kian)

Prior demand in unlawful detainer not required:

1. Where the purpose of the action is to terminate the lease by reason of expiry of its term;
2. Where the purpose of the suit is not for ejectment but for the enforcement of the terms of the
contract; or
3. When the defendant is not a tenant but mere intruder.
Section 3. summary procedure
The rule on summary procedure shall apply except in cases covered by the agricultural tenancy laws or
when the law otherwise expressly provides.
Section 4. pleadings allowed
1.
2.
3.
4.

Complaint;
Compulsory counterclaim (pleaded in the answer);
Cross-claim (pleaded in the answer); and
Answers thereto.

Note: all pleadings shall be verified.

Section 5. action on complaint
The court may dismiss case outright if any ground for dismissal of civil action is apparent therein or issue
summons if no ground for dismissal is found.
Section 6. answer

1. Filed within ten (10) days from service of summons and serve a copy thereon o the plaintiff.
2. Affirmative and negative defenses not pleaded shall be deemed waived, except lack of
jurisdiction over the subject matter.
3. Cross claims and compulsory counterclaims not asserted shall be considered barred.
4. Answer to counterclaims or cross-claims shall be served and filed within ten days from service of
the answer in which they are pleaded.
Section 7. effect of failure to answer
Should the defendant fail to answer the complaint within the given period, the court, motu proprio or
on motion of the plaintiff, shall render judgment (not an order declaring the defendant in default) as
may be warranted by the facts alleged in the complaint and limited to what is prayed for therein.
The court may reduce the amount of damages and attorneys fees claimed for being excessive or
otherwise unconscionable.
Note: this is without prejudice to the applicability of section 3 [c], rule 9 of the rules of court, if there are
two or more defendants (effect of partial default).
Section 8. preliminary conference; appearance of parties
1. Preliminary conference held not later than thirty days after the last answer is filed;
2. If the plaintiff fails to appear, the complaint shall be dismissed and defendant shall be entitled to
counterclaim and all cross-claims shall be dismissed.
3. If defendant fails to appear, the plaintiff shall be entitled to judgment.
4. Paragraphs 2 and 3 shall not apply if one of the two or more defendants sued under a common
cause of action and who had pleaded a common defense shall appear in the preliminary
conference.
5. No postponement of preliminary conference shall be granted except for meritorious grounds
and without prejudice to courts discretionary sanctions.
Section 9. the court shall issue an order stating the matters taken up in the preliminary conference
within five days after the termination thereof, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admission made by the parties,
judgment may be rendered without the need of further proceedings, in which event the
judgment shall be rendered within thirty days from issuance of the order.
4. A clear speculation of material facts which remain converted; and
5. Such other matters intended to expedite the disposition of the case.
Section 10. submission of affidavits and position papers

It is filed within 10 days from receipt of the order stating the matters taken up in the preliminary
conference.
Note: the 10 day period is not extendible.
Section 11. period for rendition of judgment
1. Within thirty days after receipt of affidavit and position papers or expiration of the period for
filing the same.
2. Court may order that certain matters be clarified before judgment can be rendered.
3. In such case, it may require submission of affidavits or evidence within 10 days from receipt of
said order, and render judgment within fifteen days after receipt.
Section 12. referral for concillation
Cases requiring referral to Lupon for conciliation under the provisions of RA 7160 where there is no
showing of compliance with such requirement shall be dismissed without prejudice and may be revived
only after such requirement shall have been complied (revised rule on Summary procedure section 18).
Section 13. prohibited pleadings and motions
1. Motion to dismiss the complaint exceot on the ground of lack of jurisdiction over the subject
matter, or failure to refer the case for barangay conciliation when required;
2. Motion for bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement
10. Interventions
11. Reply; and
12. Third party complaints
Note: the motion prohibited by section 13, paragraph [g] is that which seeks reconsideration of the
judgment rendered by the courts after trial on the merits of the case. The decision dismissing the
petitioners ejectment case for lack of jurisdiction was not adjudication on the merits, review thereof
could be sought by the petitioner through her motion for reconsideration and this motion, which is not
pro forma, had the effect of suspending the running of the period to appeal. (joven)
Section 14. affidavits

The affidavits to contain: (a) only facts of direct personal knowledge of the affiants which are admissible
in evidence; and (b) affiants competence to testify to the matters stated therein.
Violation of this provision may subject the party or the counsel to disciplinary action and expunction of
inadmissible evidence from the record.
Section 15. preliminary injunction
Plaintiff may ask for a writ of preliminary mandatory injunction within five days from filing of the
complaint and the same shall be decided within 30 days from the filing thereof.
Can the MTC issue a preliminary mandatory injunction in an unlawful detainer? Yes. Although article 539
of the civil code provides that preliminary mandatory injunction is only possible in forcible entry cases,
rule 70, section 15 has made it applicable to both in view of section 33 of B P 129.
Section 33 allows the plaintiff in an unlawful detainer action to apply for the writ of preliminary
injunction. With the advent of B P 129, article 5 39 of the civil code section 88 of the judiciary act of
1948, and rule 70 section 3 of the rules of court have been substantially modified B P 129 provides:
provided the main action is within its jurisdiction, an inferior court can appoint a receiver and it has
jurisdiction to issue a writ of preliminary injunction in either forcible entry or unlawful detainer cases.
Under the present law, an inferior court has jurisdiction to grant provisional remedies in proper cases
(DAY)
Section 16. resolving the defense of ownership
When the defendant raises the defense of ownership the court may address such only to the extent
necessary to determine the rightful possessor of the property. any determination as to ownership shall
be provisional and shall not bind any separate action meant to address the issue of such ownership.
B P 129 Section 33 2
Is a formal contract a prerequisite in unlawful detainer? No. the existence of a formal contract is not
necessary in unlawful detainer. Even if there is no formal contract between the parties, there fan still be
an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by
tolerance creates an implied promise to vacate the premises upon demand by the owner. (peran)
Questions to be resolved in an action for forcible entry:
1. Who had actual possession over the real property?
2. Was the possessor ousted therefrom within one year from the filing of the complaint by force,
intimidation, threat, strategy or stealth?
3. Does the plaintiff ask for the restoration of his possession? (Dizon)
Are third persons bound by a judgment in an ejectment case?
General rule: yes, provided his possession can be traced from the title of the defendant (e.g. sub-lessee).

Exceptions:
1. If the property was acquired before the action;
2. If the property is covered by a torrens title and the certificate does not state that the property is
subject to a pending action and he bought the same in good faith.
The judgment binds and may be executed against sub-lessees. Once the right of the latter disappears,
they have nothing to stand on, unless they claim an understanding or relation with the owner.
Judgment for ejectment cannot be enforced against a co-owner who was not made a party to the action
(cruzcosa)
Section 17. judgment
If the court finds the allegations true, it shall render judgment in favor the plaintiff for the:
1. Restitution of the premises; and
2. Payment of the sum justly due as arrear for rent or as reasonable compensation for the use and
occupation of the premises, attorneys fees and costs.
If not true, it shall render judgment for the defendant to recover his cost.
If counterclaim is established, the court shall render judgment for the sum found in arrears from wither
party and award costs as justice requires.
The court can award damages in ejectment cases provided the damages refer only to:
1. The fair and reasonable value of the use and enjoyment of the property or the rent arising from
the loss of possession; or
2. Liquidated damages when they form part of the contract (azcuna)
In forcible entry or unlawful detainer cases, the only damage that can be recovered is the fair rental
value or the reasonable compensation for the use and occupation of the leased property (dumo).
Note: attorneys fees cannot be considered damages
Binding effect of the judgment:
General rule: the judgment is binding only upon the parties properly impleaded and given an
opportinuty to be heard because ejectment suit is an action in personam.
Exceptions: the judgment is binging against the following even though not ompleaded:
1. Trespassers, squatters or agents of the defendant fraudulently occupying the property to
frustrate the judgment;
2. Guest or other occupants of the premises with the permission of the defendant;
3. Transferees pendent lite;

4. Sub-lessees;
5. Co-lessees;
6. Members of family, relatives and other privies of the defendant.
Section 18. Judgment conclusive only on possession; not conclusive in actions involving title or
ownership
Unlawful detainer and forcible entry suits under rule 70 of the rules of court are designed to summarily
restore physical possession of a piece of land or building to one who has been illegally or forcibly
deprived thereof, without prejudice to the settlement of the parties opposing claims of juridical
possession in appropriate proceedings.
The adjudication is, however, merely provisional and would not bar or prejudice an action between the
same parties involving title to the property. the sole issue for resolution in an unlawful detainer case is
physical or material possession of the property involved, independent of any claim of ownership by any
of the parties. Where the issue of ownership is raised by any of the parties, the courts may pass upon
the same in order to determine who has the right to possess the property.
The rules of res judicata and conclusiveness of judgment apply in ejectment suits, but subject to the
qualification that the judgment therein is conclusive only with respect to the issue of possession of the
premises and not with respect to ownership; it is conclusive with respect to the right of possession
under and by virtue of a contract the existence of which has been proved in said ejectment suit.
Section 19. immediate execution of judgment; how to stay the same
General rule: judgment of the MTC against the defendant in ejectment proceedings is immediately
executor.
Exceptions: when the following occur:
1. The defendant perfect his appeal;
2. He files sufficient supersedeas bond to pay the rents, damages and cost accuring down to the
time of judgment appealed from; and
3. He deposits with the appealate court the amount of rent due from time to time under the
contract or, in the absence of a contract, the reasonable value of the use and occupation of the
premises on or before the 10th of each succeeding month or period.
In forcible entry, the amount of the supersedeas bond and the amounts to be periodically deposited
shall be the reasonable value of the use and occupancy of the premises as determined by the court.
In unlawful detainer, the amount of the bond and periodic deposit of rentals shall be that stated in the
lease contract.
Supersedeas bond is not required:

1. When the monetary award in the judgment of the inferior court has been deposited with the
court; or
2. When the judgment of the lower court did not make the findings with respect to anya mout in
arrears, damages or cost against the defendant.
Ejectment suits are not suspended or barred by other actions such as the following:
1.
2.
3.
4.
5.
6.
7.
8.

Quieting of title;
Consignation of renteals;
Specific performance with damages;
Accion publiciana;
Reformation of instrument;
Accion reinvindicatoria;
Writ of possession case;
Annulment of sale, or title, or document; annulment of deed of sale with assumption of
mortgage and/or to declare the same an equitable mortgage; annulment of sale with damages;
and
9. Injunction.
An ejectment case is a real action, which is not extinguished by the death of a party.
Section 20. preliminary mandatory injunction in case of appeal
The r t c may issue a writ of preliminary mandatory injunction on motion of plaintiff within 10 days from
the perfection of the appeal.
There are 2 instances when preliminary mandatory injunction can be availed of by the plaintiff under
rule 70:
1. Immediately upon filing of the complaint before judgment section 15
2. Pending appeal if the court is satisfied that the defendants appeal is frivolous or dilatory or that
the appeal of the plaintiff is prima facie meritorious section 20
Section 21. immediate execution on appeal to court of appeals or supreme court
The judgment of the R T C against the defendant shall be immediately executor, without prejudice to a
further appeal that may be taken therefrom.
Note: it is only the execution of the M T Cs judgment pending appeal with the R T C which may be
stayed pursuant to section 19. The judgment of the R T C is immediately executor notwithstanding
appeal.
On appeal the appellate court may stay the writ should circumstances require. Even though R T C
judgments in ejectment cases are immediately executor, a preliminary injunction on the writ of
execution is still allowed.

Execution pending appeal

Rule 70 section 21 it does not require the showing of good reasons as it is a matter of right.
Rule 39 section 2 it requires good reasons and is subject to the discretion of the court.
It is mandatory for the R T C to order execution of the appealed judgment upon failure of defendant to
make the monthly deposit of current rentals.
Prior notice of judgment is required for immediate execution.
Rule 71 contempt
Contempt of court a disobedience to the court by acting in opposition to its authority, justice and
dignity. It signifies not only a willful disregard or disobedience of the courts orders but also conduct
tending to bring the authority of the court and the administration of law disrepute or, in some manner,
to impede the due administration of justice.
Purpose and nature of contempt power the power to declare a person in contempt of court in dealing
with him accordingly is an inherent power lodged in courts of justice, to be used as a means to protect
and preserve the dignity of the court, the solemnity of the proceedings therein, and the administrations
of justice from callous misbehavior, offensive personalities, and contumacious refusal to comply with
court orders.
Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of
judgments, orders, and mandates of the courts, and, consequently, to the due administration of justice.
The exercise of the power to punish for contempt has a dual aspect. Primarily, the proper punishment of
the guilty party for his disrespect to the courts. Secondarily, his compulsory performance of some act or
duty required of him by the court and which he refuses to perform.