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Taking it back: Rules for possession

If one has been deprived of possession for one year or less, the proper action to file is an action for ejectment while if deprivation has lasted for more than one year, the proper action to file is called accion publiciana.

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Article III, Section 1 of the Philippine Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. This clause rings particularly true in the area of possessory rights. In a scenario where a person finds himself illegally deprived of possession of a thing to which he claims a right, he cannot, unfortunately, simply take it back by stealth or force as he might later on be charged with theft or robbery, or trespassing. One finds himself deprived of his rightful possession of a thing must instead make use of certain procedures or remedies provided under the law.

For recovery of personal properties, one such remedy is found in Rule 60 of the Rules of Court (RoC), called replevin.

Replevin is an action to recover one’s personal or movable property from a person who is illegally or wrongfully detaining the same. It is an action which may be filed either independently or as an element part of an already existing action as part of one’s claims.

To avail of replevin, certain requirements must be complied with under the RoC. Section 2 of Rule 60 of the RoC provides that an applicant for replevin must file an affidavit with the court particularly describing the property claimed and its actual market value while establishing the following facts: that the applicant is the owner of the property or, at the very least, entitled to its possession; that the property is wrongfully detained by the adverse party alleging the cause of detention thereof; and, that the property was not taken pursuant to lawful reasons (like payment of taxes or fine under the law).

Aside from an affidavit, the applicant must also give a bond, which is security for the detaining party’s interest in case the court later on finds that it is the detaining party who is the rightful possessor of the property claimed. The bond is executed in favor of the opposing party in double the value of the property as stated in the aforementioned affidavit.

For recovery of real properties, the RoC provides for various actions which one can file depending on the period of time one has been deprived of possession of the property. If one has been deprived of possession for one year or less, the proper action to file is an action for ejectment while if deprivation has lasted for more than one year, the proper action to file is called accion publiciana.

Under the RoC, an action for ejectment is available to a person who was deprived of the possession of any land or building by force, intimidation, threat, strategy or stealth or a lessor, vendor, vendee or other person against whom the possession of any land or building is unlawfully withheld after the right to hold possession, by virtue of any contract, has expired.

In filing a case for ejectment, the rules require that a letter be sent to the opposing party demanding that he/she vacate and surrender the property before the action is filed. Without such demand letter being made, the action is dismissible by the courts. Demand is made either by posting it at the premises, personally, or, if there is no person found thereon, by substituted service, or by registered mail, all of which must be proved by sufficient evidence when one files an action with the court.

In addition to the requirement of demand, the complaint in an action for ejectment must also state what is called the jurisdictional facts or the facts that would qualify such action as an action for ejectment.

When the deprivation of real property has lasted for more than one year, the proper action to file is what is called in jurisprudence as accion publiciana. Like in an action for ejectment, demand is also required. However, unlike that of ejectment, the action need not be brought within one year from dispossession of such property.

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