AUSTRIA & AUSTRIA

LAW OFFICES
026 Luksuhin Ibaba, Alfonso, Cavite
Tel No. (046) 633 1680 Mobile Nos. 0917 953 - 9010 email.
aalawoffices@yahoo.com

April 1, 2017

MRS. ANNIE CUSTODIO

Thomasian Village, Las Pinas City
Philippines

Dear Madame:

Here is the opinion that you requested.

The facts, as I gather from you and your documents are

as follows:

You and your spouse are the absolute and registered

owners of a certain parcel of land located at Lot 1, Block 2, AB
Street, Thomasian Village, Las Pias City with a total area of
500 sq.m., covered by and more particularly described in
Transfer Certificate of Title (TCT) No. T-12345, issued by the
Registry of Deeds of Las Pias City, The land has a market
value of Php 1, 250, 000.00 and an assessed value of Php
750,000.

You acquired the said parcel of land through an Absolute

Deed of Sale from Ponky Tutay dated June 17, 2011.

That it was only on July 1, 2015 when a relocation survey

was conducted and commissioned by the services of Engr.
Maantot Umali showed that the frontage lot of your property
(refered to as Lot 2) has encroached your own property by 2.88
m.
 Lot 2, which is covered by TCT No. T-67890 was then
registered under the name of Nik Nik Sevilla who is referred to
as the owner. It appeared that the overlap existed since 2005
when an improvement was built thereon by the latter.

That on November 30, 2015, a demand letter was sent to

Nik Nik Sevilla to vacate the encroached parcel of land,
however Nik Nik Sevilla ignored the same. Thereafter, it was
referred to Lupon Tagapamayapa. Unfortunately, no settlement
was reached.

The question you pose now is whether or not you have

the right to possess the said encroached lot and what are the
remedies available for you for complete redemption of the said
lot in question.

In my opinion, you have two (2) options to institute your

claim as discussed in this document.

I base my opinion on the following:

The relevant provisions of Book II Property, Ownership,

and Its Modifications; Title II Ownership:

Article 433 Actual possession under the claim of

ownership raises a disputable presumption of
ownership. The true owner must resort to judicial
process for the recovery of the property. (n).

Article 434 In an action to recover, the property

must be identified, and the plaintiff must rely on the
strength of his title and not on the weakness of the
defendants claim.

Article 449 He who builds, plants or sows in bad

faith on the land of another, loses what is built,
planted or sown without right to indemnity.

From the above stated provisions of the Civil Code, you

may resort to judicial process to recover your property,
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should Nik Nik Sevilla refuse to surrender the property
to you, after proper request or demand has been made.

In your case, Nik Nik Sevilla, despite receiving

numerous demand letters, ignored and showed no
interest to settle the dispute.

I. You may file a civil case to recover the possession of

the encroached area of your property.
It was held in Penta Pacific Realty Corporation V.
Ley Construction and Development Corporation that
there are 3 kinds of Real Actions affecting title to or
possession of real property or interest, namely:
Accion de reivindicacion, accion publiciana and
accion interdictal.

What is more applicable in the case at hand is

Accion Reivindicatoria because it seeks the
recovery of ownership as well as the possession of
realty. Hence, this application.

Furthermore as stated in the case of Spouses

Elegio and Dolia Caezo v. Spouses Aploinario and
Consorcia Bautista, G.R. No. 170189 (September
1, 2010), the proper action to recover a property is
by accion reivindicatoria under Article 434 of the
civil code.

Accion reivindicatoria seeks the recovery of

ownership and includes the jus utendi and the jus
fruendi brought in the proper regional trial court.
Accion reivindicatoria is an action whereby plaintiff
alleges ownership over a parcel of land and seeks
recovery of its full possession.

II. You may seek relief by demanding Nik Nik to pay for
the rental fee from July 1, 2015 until the time that
possession is restored to you. Considering that Nik Nik
deprived you of the lawful possession of 36 sqm
occupied by her improvement, you may ask for P3,
600-rental fee from the stated reckoning period.

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 Also, as stated in Article 449, Nik Nik built the
improvement in bad faith as she proceeded with the
construction of the said improvement without
permission or authorization from the registered
owner. With these set of facts, you may direct Nik
Nik Sevilla to remove the improvement that
encroached on your property without any
reimbursement of the costs of construction.

III. Moreover, by reason of Nik Nik Sevillas unjustified

refusal to return possession of the encroached portion,
done in bad faith and without any rightful claim of
ownership whatsoever, you are entitled to moral
damages in the amount of Fifty Thousand Pesos (Php
50,000.00), Fifty Thousand Pesos (Php 50, 000.00) and
additional Five Thousand pesos (P5, 000.00) for every
appearance in court as and by way of attorneys fees.

A word of reservation: I base my opinion on the

language of the laws involved as well as on the settled
judicial precedents. I am confident that should you
decide to proceed with the case, our office will more
than willing to assist you in this matter.

I trust that I have addressed the foregoing query; should

you have other concerns in connection with this issue, please
feel free to contact me.

Very truly yours,

REALYN M. AUSTRIA