Republic of the Philippines

REGIONAL TRIAL COURT

First Judicial Region
Branch 62, La Trinidad, Benguet

HEIRS OF OLARTE PAUS, namely:

SEPHORA PAUS, MARK PAUS,
NATASIA P. CALIMODAG and
OLARTE PAUS, JR.,
Plaintiff/s,

-versus- Case No. 20-CV-3515

For: Specific Performance
Injunction and Damages

STA.LUCIA REALTY and DEV.,INC.

Defendant.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ANSWER

COMES NOW, Defendant STA. LUCIA REALTY and DEV.

INC. (SLR for brevity), through counsel, most respectfully states:

I. Plaintiffs have NO clear, positive ACTUAL

and substantial right over the property covered by TD
No.2010-04-10-05694, whi and therefore, not real parties
in interest.

II. Plaintiffs FAILED to satisfy the Civil Code

requirements for the grant of easement of right of way.

III. Plaintiffs have NO AUTHORITY AND

STANDING TO FILE the instant complaint for and on
behalf of Barangay Poblacion, Topinao Farmers
Association, Bua-Sangao Farmers Association and
Inakong and Anamot Area collectively referred to as
the COMMUNITY, parties to the alleged
Memorandum of Agreement (MOA), the instant
complaint seeks to enforce.

DISCUSSION
 Answer
Page 2 of 7

Plaintiffs have NO clear, positive ACTUAL and substantial

right over the property covered by TD No.2010-04-10-05694 and
therefore, not real parties in interest. There is evident lack of cause
of action.

1. As alleged in the complaint, Plaintiffs claim is based on

their right as heirs of Olarte Paus, the alleged owner and possessor
of ancestral land covered by TD No.2010-04-01-05694, a copy which
is attached to the instant complaint as Annex “A.” Said Annex
shows that the property is declared under the name of Olarte Paus.
No document was attached to show the transfer or purported
transfer of the subject property to the Plaintiffs.

2. Based on their own allegations and the documents

submitted before the court, there was NO TRANSFER OF RIGHTS
from Olarte Paus to the Plaintiffs. It is therefore clear that the rights
of the plaintiff over the subject property are still INCHOATE,
FORMLESS and INCIPIENT. They are NOT actual, positive and
substantial, worthy of judicial protection by means of injunction.

3. As ruled by the Supreme Court in various cases:

“The existence of a right violated is a prerequisite to

the granting of an injunction. An injunction will not issue to
protect a right not in esse and which may never arise.
Failure to establish either the existence of a clear and
positive right which should be judicially protected
through the writ of injunction, or that the defendant has
committed or attempts to commit any act which has
endangered or tends to endanger the existence of said right,
is a sufficient ground for denying the injunction.1”

“For a writ of injunction to issue, the petitioner’s

interest in the property in controversy or the right he seeks to
be protected must be a present right.” The existence of a
“clear positive right” especially calling for judicial protection
must be shown. Injunction indeed, is not to protect
contingent or future right, nor it is a remedy to enforce
an abstract right.2”

4. In the instant complaint, the rights of the plaintiffs over the

property are not clear and positive rights. At best, they are considered as
future or contingent right, not subject to judicial protection by means of
injunction.

1
Rosauro vs. Cuneta, 151 SCRA 570
2
Yaptinchay vs. Torres, 28 SCRA 489; Prado vs. Verdiano, 2014 SCRA 654
 Answer
Page 3 of 7

II.
Plaintiffs failed to satisfy the Civil Code requirements for the
grant of easement of the right of way.

5. Essentially, the instant complaint is a Complaint for

Easement of Right of Way. The New Civil Code provides:

“Art.649. The owner, or any person who by virtue of a

real right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other persons
and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after
payment of the proper indemnity. x x x”

“Art.650. The easement of right of way shall be

established at the point least prejudicial to the servient
estate and, insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may
be the shortest.”

“Art.651. The width of the easement of right of way

shall be that which is sufficient for the needs of the dominant
estate, and me accordingly be changed from time to time.”

6. Based on the foregoing, the owner of the land or person

demanding a right of way must establish the following to be
entitled to a compulsory easement of right of way: (1) that the
dominant estate is surrounded by other immovables and has no
adequate outlet to a public highway; (2) that proper indemnity has
been paid; (3) that the isolation was not due to acts of the
proprietor of the dominant estate; (4) that the right of way claimed
is at point least prejudicial to the servient estate and, in so far as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest.

7. An easement of right of way is a real right. When an

easement of right of way is granted to another person, the rights of
the property owner are limited3. An owner may not exercise some of
his or her property rights for the benefit of the person who was
granted the easement of right of way. Hence, the burden of proof to
show the existence of the above conditions is imposed on the person
who seeks the easement of right of way.4
8. Plaintiffs in the instant complaint, except for mere
allegations, failed to establish that there was no adequate outlet to
3
Cristobal v. Court of Appeals, 353 Phil. 318, 328 (1998) [Per J. Bellosillo, First Division].
4
Cristobal v. Court of Appeals, 353 Phil. 318, 327 (1998) [Per J. Bellosillo, First Division], citing Costabella Corporation v. Court of Appeals, 271 Phil.
350, 358 (1991) [Per J. Sarmiento, Second Division], which in turn cited Locsin v. Climaco, G.R. No. L-27319, January 31, 1969, 26 SCRA 816, 836
[Per J. Castro, En Bane], Angela Estate, Inc. v. Court of First Instance ofNegros Occidental , 133 Phil. 561, 574 (1968) [Per J. Castro, En Banc],
and Bacolod-Murcia Milling Co., Inc., et al. v. Capitol Subdivision, Inc., et al., 124 Phil. 128, 133 (1966) [Per J. J.B.L. Reyes, En Banc].
 Answer
Page 4 of 7

the public highway and that the proposed easement was the least
prejudicial to defendant’s estate. They maliciously omitted to show
the current access granted to them by the defendant and showed
only that portion of the unfinished and uninhabited house. It is
important to note that plaintiffs’ homes where they currently live
are using the current access to the project via Douglas St., granted
by defendant. The photos of the house they submitted before this
Honorable Court is unfinished and uninhabited.

9. As a matter of fact, there are heavy equipments parked

on their lot during the time of the joint inspection. The heavy
equipments were driven there via the current access granted by the
defendant, which the defendant commits not to close but only to be
regulated for security purposes.

10. Evidently, grant of easement of right of way is not an

issue as the current access via Douglas St., (built by the defendant
Sta.Lucia) will not be closed. What the plaintiffs want is an
unhampered frontage to the unfinished and uninhabited house they
built and sold to a third person. While the subject house has access
to the current right of way, plaintiffs are now whimsically asking
the Honorable court to unlawfully deprive defendant of its exercise
of right of ownership, for plaintiffs’ economic benefit.

11. It must be noted as well, that a third person, not the

plaintiffs in the instant case, went to the satellite office located in the
defendant’s project and complained about the ongoing fencing.
They claim to be the to be the buyer of the house, which photos had
been attached to the instant complaint.

12. This court explained in Dichoso, Jr. v. Marcos5 that the

convenience of the dominant estate's owner is not the basis for
granting an easement of right of way, especially if the owner's needs
may be satisfied without imposing the easement.[62] Thus:
“Mere convenience for the dominant estate is not what is required by law
as the basis of setting up a compulsory easement. Even in the face of
necessity, if it can be satisfied without imposing the easement, the same
should not be imposed.”

13. Also the Supreme Court in Flow v. Llenado, we refused to

impose a right of way over petitioner's property although private
respondent's alternative route was admittedly inconvenient
because he had to traverse several ricelands and rice paddies

5
G.R. No. 180282, April 11, 2011, 647 SCRA 495 [Per J.Nachura, Second Division].
 Answer
Page 5 of 7

belonging to different persons, not to mention that said passage is

impassable during the rainy season.

14. And in Ramos, Sr. v. Gatchalian Realty, Inc., this Court

refused to grant the easement prayed for even if petitioner had to
pass through lots belonging to other owners, as temporary ingress
and egress, which lots were grassy, cogonal, and greatly
inconvenient due to flood and mud because such grant would run
counter to the prevailing jurisprudence that mere convenience for
the dominant estate does not suffice to serve as basis for the
easement6. Access to the public highway can be satisfied without
imposing an easement on respondents' property.

15. In the instant case, a joint site inspection on January 13,

2020 yields that defendants are allowing plaintiffs access to the
project via Douglas St. Fencing of the project will not close such
current access that defendants are enjoying. It will only be regulated
for security purposes as provided in the MOA cited by the plaintiffs.

III.

Plaintiffs have NO AUTHORITY AND STANDING TO FILE

the instant complaint for and on behalf of Barangay Poblacion,
Topinao Farmers Association, Bua-Sangao Farmers Association
and Inakong and Anamot Area, parties to the alleged Memorandum
of Agreement the instant complaint seeks to enforce.

16. Plaintiffs, instead of establishing the requisites to the

easement of right of way, relied on the alleged Memorandum of
Agreement (MOA) entered into by Barangay Poblacion, Topinao
Farmers Association, Bua-Sangao Farmers Association and Inakong
and Anamot Area, collectively referred therein as the
COMMUNITY and the Defendant SLR, referred to therein as the
DEVELOPER.

17. Paragraph B.2 of the MOA states:

“The DEVELOPER shall also maintain the existing

footrails within the site which are being used by farmers
adjoining the project. For security, the DEVELOPER shall
provide security pass to those who need passage thru the
project. This understanding shall be turnover to the

6
Id. at 504-505. See also Cristobal v. Court of Appeals, 353 Phil. 318, 328-329 (1998) [Per J. Bellosillo, First Division]
 Answer
Page 6 of 7

Homeowners Association once formed, for them to enforce

and regulate.”

18. The MOA cited by the plaintiffs and the pertinent

provision therein are not sufficient to satisfy the requirements of the
law in relation to the grant of easement of right of way. Assuming
arguendo that this will suffice, the plaintiff still cannot enjoin the
fencing of the project as the “usage of the existing footrail by the
farmers of the adjoining project” is subject to security REGULATION by
the DEVELOPER, herein defendant.

19. Assuming arguendo that the abovementioned provision

suffices to grant easement of right of way, this complaint must still
fail as access through project is already being enjoyed by them. To
prevent the fencing of the project is to unlawfully restrict the right
of ownership of the plaintiff over the subject property.

20. Moreover, Plaintiffs prayer for the enforcement of the

MOA and the Damages must necessarily fail as they failed to show
and/or establish that they were granted the necessary authority by
the parties to the MOA, the COMMUNITY, to file this instant
complaint for and on their behalf.

21. Accordingly, the instant complaint must be DISMISSED

outright for lack of standing the instant complaint and for failure to
state cause of action.

PRAYER

WHEREFORE, premises considered it is respectfully prayed

that the Honorable Court issue an Order:

(1) DENYING outright the prayer for the issuance of Writ of

Preliminary Injunction;

(2) DISMISSING outright the instant complaint for LACK OF

AUTHORITY AND STANDING to file the case for and on
behalf of the parties to the MOA collectively referred to as
the COMMUNITY.

(3) DISMISSING outright the instant complaint for FAILURE

TO STATE CAUSE OF ACTION.

Other reliefs just and equitable under the premises are

likewise prayed for.
 Answer
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Mandaluyong City for La Trinidad, Benguet, 12 January 2020.

CRYSTAL I. PRADO
Counsel for Defendant SLR
Ground Floor, State Center II Building
Ortigas Avenue, Mandaluyong City
Roll No. 57242
MCLE Compliance No. VI-
0020001; 03/18/19
IBP No. 063314; 01/04/19; Quezon City
PTR No. 7376004; 01/07/19; QuezonCity
talaprado26@gmail.com
Contact No. (02) 722-5811 to 15

COPY FURNISHED

ATTY. RICARDO B. FELIX

Counsel for Plaintiffs
47-L REPAM Building, Naguilin Rd., Baguio City