Republic of the Philippines

Twelfth Judicial Region

METROPOLITAN TRIAL COURT
Cotabato City, Maguindanao
BRANCH 12

KRIS AQUINON YAP-YAP,

Plaintiff,

-versus - Special Civil Action

No. 00000
For: Unlawful Detainer
SPOUSES GRETCHEN BARRETTE,
TONY BOY COJUANGCO,
Defendants,

x - - - - - - - - - - - - - - - - - - - - -x

MEMORANDUM
(for the Defendants-Appellants)

Defendants-Appelants Spouses Gretchen and Tony Boy Cojuangco, by

counsel, in compliance with the Honorable Court’s Order, respectfully aver
that:

STATEMENT OF THE CASE

1. This is an ordinary appeal under Rule 40 of the Rules of Court

seeking the reversal of the Decision of the 108 th Municipal Circuit
Trial Court of Westeros dated April 10th , 2019 in Civil Case No.
0000.
2. The original case being appealed is an action for unlawful detainer
filed by Kris Aquinon Yap-Yap against defendants-appellants. The
said action sought the eviction of the Defendants-Appellants from
the land on which their family home has been erected.
3. The plaintiff Kris Aquinon Yap-Yao claims that she is the rightful
possessor of the disputed property, she being the widow of its
registered owner, contend that they may not be evicted from the
property unless the Plaintiff complies with the provisions of
Article 448 of the Civil Code providing for the rights of a builder-
in-good faith.
4. They argue that they have introduced necessary and useful
improvements on the property, their current family home included,
upon the invitation and express consent of the registered owner.
Hence, they should first be reimbursed of the said expenses before
eviction.
5. After reviewing the evidence and the arguments of both parties, the
MCTC decided the case in favor of the Plaintiff. It ruled that

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 Article 448 of the Civil Code is not applicable to the Defendants-
Apellants as their possession of the disputed property was merely
tolerated by the regisered owner. It ruled in relevant part, thus:

“As the defendants in this case were merely tolerated by the registered
owner, James Yap-Yap, to occupy and possess the subject lot
including the house which was constructed by the latter, they knew
very well that they were not the owners of the subject property so that
whatever useful and necessary improvements they introduced thereon
cannot be considered as reimbursable pursuant to Article 546. At
most, defendants can only be considered as mere usufructuaries of the
subject property.

WHEREFORE, premises considered, judgment is hereby rendered in

favor of the plaintiff. The defendatns are ordered to:

1. VACATE the property covered by TCT T-0000 and

consequently RESTORE the possession thereto to plaintiff;

2. Defendants to pay the same justly due as reasonbale

compensation for the use and occupation of the premises
from the time of the last demand by plaintiff upon them on
October 11, 2017;

3. Defendants top ay Attorney’s fees in the amount of Twenty

Thousand Pesos (P 20,000.00) only in accordance with
paragraph (1) A. Civil Cases, Section 1 of the Revised
Rules on summary Procedure; and

4. Finally, defendants to pay legal interest thereon at the rate

of 6% per annum from the time judgment herein becomes
final and executory.”

6. Earnestly believing that the MCTC erred in deciding the case in the
plaintiff’s favor, the defendants-appellants are now seeking the reversal of
the said decision through this appeal.

STATEMENT OF FACTS

7. Defendant-Appellants are the current possessors and occupants of the

property in dispute. The said property is a 909 square meter parcel of land
situated in Castlerock and covered by TCT No. T-0000 registered in the
name of late James Yap-Yap. James Yap-Yap is the plaintiff-appellee’s
deceased husband; while defendant-appellant Gretchen Barrette is his sister.

8. The Defendants-Appellants have been in continuous possession of the

disputed property since 1988, the year they were invited by James Yap-Yap

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to construct their fmaily dwelling thereon. Because of this inviataion, the
Defendants-Appellants introduced necessary and useful improvements on
the disputed property, among which is the house their family is currently
living in.

9. In 2016, Plaintiff Kris Aquinon Yap-Yap unexpectedly demanded that the

Defendants-Appellants vacate the disputed property, explaining that she
would already be using the same for her own use. Finding the said request to
be contrarry to their understood arrangement with the late James Yap-Yap,
the defendants-appellants refused to vacate the property. They however,
expressed the possibility of them voluntarily leaving the property should
they be reimbursed with the value of the necessary and useful improvements
they had introduced on the property.

10. On December 8, 2016, Plaintiff Kris Aquinon initiated the instant action
for unlawful detainer against the defendants-appellants. In their answer to
the complaint, the defendants-appellants did not entirely dispute the
plaintiff-appellee’s status as the widow of the disputed property’s registered
owner. They, however, contended that they may not be evicted from the
property unles the plaintiff-appellee complied with the provisions of Article
448 of the Civil Code providing the reights of a builder in good faith. They
argued that they have introduced necessary and useful improvements on the
property, their family home included, upon the invitation and express
consent of the registered owner. Hence, they should first be reimbursed of
the said expenses before eviction.

ASSIGNMENT OF ERRORS

A.
The MCTC erred in declaring that the defendants-appellants merely
occupied and possessed the disputed property on the basis of mere
tolerance

B.
The MCTC erred in not considering the defendants-appellants buidlers in
good faith under Article 448 of the Civil Code, in total disregard of
the ruling of the Supreme Court in Spouses Macasaet v. Spouses
Macasaet, which involced identical facts and issues as those raised
in the present case.

C.
The defendants-appellants being builders in good faith, the MCTC erred
in ordering them to pay the plaintiff reasonable compensation for the
uses of the disputed property from the time of last demand upin
them on December 08, 2017.

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 D.
Finally, the MCTC erred in awarding the plaintiff attorney’s fees despite
the utter lack of evidence showing bad fatih on the part of the
defendants-appellants.

DISCUSSION

A.
The defendants-appellants occupied and possessed the
disputed parcel of land not merely on the basis of tolerance on the
part of the late James Yap-Yap; they were invited by James Yap-
Yp to possess the same and all improvements introduced thereon
were done with the complete approval of the latter.

11. In justifying its decision not to treat the defendants –appellants as

builders in good faith, the MCTC repeatedly declared that the defendants-
appellants’ possession of the disputed property was by mere tolerance of
James Yap-Yap. Contradictorily, however, the same court, in its discussion
of its position, described the defendants-appellants’ possession of the
disputed property as being a product of a meeting minds done at the instance
and invitation of its registered owner, James Yap-Yap.

“The defendant admitted that plaintiff entitled

them to occupy the subject lot in order that they could all
live near one another.By occupying the subject lot,
defendants accepted the invitation. Hence, there was a
meeting of minds, and an agreement regarding
possession of the lots impliedly arose between the
parties.”

12. According to the MCTC, Article 448 of the Civil Code exclusively
applies to cases where the builder believes himself to be the owner of the
land or, at least to have a claim of title thereto. It supposedly does not apply
when the interest of the support of its position, the MCTC cited the ruling of
the Supreme Court in the case of Spouses Macasaet v. Spouses Macasaet.

13. In fact, in the same case of Spouses Macasaet v. Spouses Macaset, which
incidentally also involved builders who were invited by their relatives (their
parents to be exact) to construct their family residence on the latter’s land
the Supreme Court categorically declared Article 448 of the Civil Code to be
applicable. Again, relevant portions of the decision are reproduced below for
reference:

“Based on the aforecited special cases, Article 448

applies to the present factual milieu. The established
facts of this case show that respondents fully consented

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 to the improvements introduced by the petitoners. In
fact, because the children occupied the lots upon their
invitation, the parents certainly knew and approved of
the petitioners may be deemed to have been in good
faith when they built structures on those lots.”

14. The rule that Article 448 of the Civil Code may be applied to cses where
the builder introducd improvements on land which he knows to be belonging
to another if its shown that the said improvements were introduced upon the
owner’s invitation and consent has again been enunciated by the Supreme
Court in the later cases of Spouses Aquino v. Spouses Aguilar, where the
Court declared as follows:

“We are aware that in some instances, this Court has

allowed the application of Article 448 to a builder who has
constructed improvements on the land of another with the
consent of the owner. In those cases, the Court found that
the owners knew and approved of the construction of
improvements on the property. Hence, we ruled therein
that the structures were built in good faith, even though the
builders knew that they were built in good faith, even
though the builders knew that they were constructing the
improvement on land owned by another.”

15. Based on the foregoing, there is clearly no obstacle in the application of

Article 448 of the Civil Code to the defendents-appellants case. In fact, the
application of the said provision is the just and equitable thing to do.

16. It should be highlighted that like in the builders in the cases of Spouses
Macasaet v. Spouses Macasaet and Spouses Aquino v. Spouses Aguilar, the
defendants-appellants only introduced constructions on the land of James
Yap-Yap because the latter had invited them to do so. Furthermore, all their
constructions, their family dwelling included, were made with the
knowledge and express consent of James Yap-Yap.

17. Clearly, therefore, defendants-appellants should be considered builders

in good faith under Article 448 of Civil Code, entitled to all the indemnities
required to be paid under Article 546 and 548 of the Civil Code.

18. The status of the defendants-appellants as buildes in good faith having

been sufficiently established, the MCTC’s award of payment of
compensation for the use of the disputed property must necessarily be
deleted. It may be recalled that the MCTC, in the assailed Decision, ordered
the defendants-appellants to pay the plaintiffs reasonable compensation for
the use and occupation of the disputed premises from the time of the last
demand by the plaintiff upon them on December 08, 2016.

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19. A builder in good faith, until the required indemnity under Article 448 of
the Civil Code has been paid in full, has the right to retain not only the
improvements he introduced, but also the land on which the said
improvements have been built. During this period, therefore, the land owner
has absolutely no right to demand from the builder in good faith the payment
of rental s for the occupation of his land.

20. Following the foregoing discussion, the MCTC’s award of attorney’s fee
to the plaintiff-appelle necessarily must likewise be deleted. The defendants-
appellant’s act of refusing to vacate the disputed property while they have
not yet been reimbursed of the necessary and useful expenses they have
introduced was not only done in good faith, but is atually supported and
sanctioned by existing law and jurisprudence.

21. Be that as it my, and even assuming that the defendants-appellants were
mistaken in their belief that they had the right to retain the disputed property,
the award of attorney’s fees is still improper as no evidence was presented
during trial to the effect that defendants-appellants actions were tainted with
bad faith.

RELIEF

WHEREFORE, it is most respectfully prayed that the Decision of the 108 th

Municipal Circuit Trial Court of Westeros dated April 10, 2019 in Civil
Case No. 000 be reversed and set aside and a new one be issued as follows:

1. Ordering the parties to present competent evidence on the

following pursuant to the ruling of the Supreme Court in Depra v.
Dumlao to determine: (a) the present value of the disputed parcel
of land; and (b) the value of the necessary and useful
improvements introduced by the defendans-appellants on the
disputed property; and
2. After foregoing amounts have been determined, ordering the
Plaintiff-Appellee to exercise his option under Article 448 of the
Civil Code either: (a) to appropriate the improvements introduced
by the defendants-appellants after reimburseming the latter of the
value of the same; or (b) to oblige the defendants-appellants to pay
the price of the subject parcel of land unless its value is
considerably more than that of the improvements, in which case
the Defendants-Appellants shall pay reasonable rent.

Other relief just and equitable under the premises under the premises are
likewise prayed for.

Cotabato City. April 10, 2019.

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 RACHEL GREEN-GELLER
Counsel for Defendants Spouses Cojuangco
Winterfell, Westeros
wewereonabreak@gmail.com

By:

RACHEL GREEN-GELLER
Roll of Attorneys No: 000
IBP Lifetime Member No: 000
PTR No. 000-ZZZ/ 12-08-22 Cotabato city

Copy furnished:

MONICA CHANANDLER BONG

Counsel for the Plaintiff-Appellee
Winter Is Coming Law Firm
Cotabato City

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