Possession recovery
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Dear Atty. Nico,
I hope you can help me with my legal problem. I recently purchased a lot. Prior to the sale, it was co-owned by three siblings. They had a squabble because one of them adjudicated the whole property to himself. Hence, the other two siblings sued him. Eventually, the court decided in favor of the latter with finality. Thus, one of the two sold her share to me.
During the span of one year while I had the property surveyed and subdivided, the same was still in possession of the lone child of the person who had such property adjudicated to himself. After filing a case of recovery of possession against the said lone child, the court decided in my favor. In return, he filed a case of legal redemption, arguing that “no written notice,” as mandated under Article 1623 of the Civil Code, was given to him. Is he correct?
Thank you for your time.
Gerald
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Dear Gerald,
It is true that a “written notice” is indispensable under Article 1623 of the Civil Code as well as a number of decided cases by the Supreme Court.
The above-mentioned provision states that “the right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be….” Likewise, the Court, in the cases of Rama v Spouses Nogra and Verdad v Court of Appeals, emphasized the mandatory nature of a written notice.
However, in the Court’s June 2021 decision of Baltazar v Miguel (citing the cases of Ectuban v Court of Appeals and Aguilar v Aguilar), it elucidated that the written notice requirement under the said provision has been relaxed; that the written notice is unnecessary when the party is established to be with actual notice of the sale.
Applying the exception stated in the immediately preceding paragraph, it is only proper to consider that the lone child has been properly notified in writing.
He had actual notice of the sale when you filed an action for recovery of possession against him on the basis of your purchase of the property in issue. From that point, he could have exercised his right of redemption within the 30-day period, but he failed to do so.
Atty. Nico A. Antonio
