Republic of the Philippines

OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON

3
RD
FLOOR, OMBUDSMAN BLDG., AGHAM ROAD, DILIMAN, QUEZON CITY

LEO L. ,
OMB-L-C-13-0546
For: Conduct Prejudicial to the Best Interest
of the Service; Misconduct;
(Administrative Case)
Complainant,
- versus -
FELIXBERTO V. ,
Respondent.
x - - - - - - - - - - - - - - - - - - -x

RESPONDENTS
POSITION PAPER

RESPONDENT, by counsel, and unto this Honorable Office,
respectfully submits his POSITION PAPER, as follows, to wit:

I
PREFATORY STATEMENT

This is a complaint for Unlawful Detainer with Damages, which
is covered by the Rules on Summary procedure, filed by herein
plaintiffs, [PLAINTIFF] , as the absolute and registered owners of
a parcel of land situated in [Location of Property] , containing an
area of [AREA IN WORDS] ([Figure] ) SQUARE METERS, more or
less, and covered by Transfer Certificate of Title No. [Number] of
the Registry of Deeds for the Province of [Province] in the name of
herein plaintiffs, against defendants [DEFENDANTS] , who are in
actual possession of the afore-described parcel of land by mere
tolerance of the plaintiffs.

As per ORDER dated [Date] , the preliminary conference was
terminated due to the absence of the defendants counsel; hence,
the instant position paper.

II
STATEMENT OF FACTS AND CASE

Plaintiffs are the absolute and registered owners of the subject
parcel of land located at [Location of Property] , containing an area
of [AREA IN WORDS] ([Figure] ) SQUARE METERS, more or less,
and covered by Transfer Certificate of Title No. [Number] of the
Registry of Deeds for the Province of [Province] .

2

While plaintiffs were temporarily residing abroad and
considering the fact that defendant erected their house over the
subject parcel of land and the same was tolerated by the plaintiffs
with the understanding that should they need the subject parcel of
land, the defendants will vacate the same upon notice; however,
despite due notice and demand, defendants failed and refused to
vacate the subject lot; hence, the instant case.

III
ISSUES

1. WHETHER OR NOT
[CLICK AND TYPE ISSUE ON COMPLAINT] ;

2. WHETHER OR NOT
[CLICK AND TYPE ISSUE ON COMPLAINT] ; AND

3. WHO BETWEEN THE PARTIES IS ENTITLED TO
DAMAGES, ATTORNEYS FEES AND LITIGATION
EXPENSES.

IV
DISCUSSIONS

The first and second issues, being intertwined, we beg to
discuss them as one.

On the first issue, it is clearly established that plaintiffs are the
absolute and registered owners of the subject parcel of land, where
the defendants, upon tolerance by the plaintiff, erected their house
over a portion thereof and from then on, enjoyed physical
possession thereof.

Considering the fact that the defendants stay on the subject
premises was by mere tolerance of the plaintiffs but since they are
in need of the subject premises, they demanded, orally and in
writing, defendants to vacate the land in question but said demands
were unheeded to the damage and prejudice of the plaintiffs.

While possession by tolerance is lawful, such possession
becomes illegal upon demand to vacate is made by the owner and
the possessor by tolerance refuses to comply with such demand. A
formal agreement or contract of lease is not necessary before an
3

unlawful detainer action can be filed against such possession. X x x.
Prior to physical possession in the plaintiff is not an indispensable
requirement in an unlawful detainer case brought by the vendee or
other person against whom the possession of any land is unlawfully
withheld after the expiration or termination of a right to hold
possession and therefore, the allegations of the same in the
complaint is not necessary. X x x. It is an accepted rule that a
person who has a torrens title over the property is entitled to
the possession thereof.
1
( emphasis and underscoring supplied )

Allegations and proof of prior possession is required in
forcible entry, not in unlawful detainer.
2


In forcible entry, the allegation of prior physical
possession is indispensable but not in unlawful detainer.
3


Possession by tolerance is lawful, but such possession
becomes unlawful upon demand to vacate by the owner and
possessor by tolerance refuses to comply with such demand;
the unlawful deprivation or withholding of possession is to
be counted from the date of demand to vacate.
4


A person occupies the land of another at the latters
tolerance or permission without contract between them, is
necessarily bound by and implied promise that will vacate
upon demand, failing which a summary action for
ejectment is the proper remedy against them.
5


After demand and its repudiation, the continuing
possession of the private respondent became illegal and the
complaint for unlawful detainer filed by petitioner was its
proper remedy.
6



1
Pangilinan vs. Aguilar, 43 SCRA 136
2
Demanay vs. Court of Appeals, 186 SCRA 373
3
Sumulong vs. Court of Appeals, 232 SCRA 373
4
Arcal vs. Court of Appeals, 285 SCRA 34
5
Yu vs. Lara, 6 SCRA 786
6
Asset Privatization vs. Court of Appeals, 229 SCRA 627
4

Plaintiffs are the absolute and registered owners of the subject
parcel of land as evidenced by Transfer Certificate of Title No.
[Number] . On [Date] , plaintiffs caused to be sent a DEMAND
LETTER unto the defendants and the same was unheeded by the
defendants.

Copies of TRANSFER CERTIFICATE OF TITLE NO.
[Number] in the name of the plaintiffs; ENDORSEMENT issued by
the Office of the Punong Barangay of [Barangay, Town, Province] ;
DEMAND LETTER TO VACATE dated [Date] and the LETTER of
the plaintiffs to defendants dated [Date] are hereto attached as
ANNEXES A, B, C and D, respectively, and made integral
parts hereof.

Because of the unjustified refusal of the defendants to vacate
the subject premises, the defendants should be assessed damages
in favor of the plaintiffs as prayed in their complaint, to wit:

a) P20,000.00 as moral damages;
b) P15,000.00 as attorneys fees plus P1,000.00 for every
appearance;
c) P300.00 as reasonable monthly rental to be computed from
the time extrajudicial demands were made by the plaintiffs
until the defendants vacate the lot in question and
peacefully delivers the same to herein plaintiff;
d) Costs of suit.

V
PRAYER

WHEREFORE, premises duly considered, it is respectfully
prayed of this Honorable Court that after due notice and hearing,
judgment be rendered as follows, to wit:

a) ORDERING the defendants, successors in interest or their
representatives, agents, or persons acting in their behalves, to
vacate and deliver peaceful possession of a portion of the lot in
question to herein plaintiffs by removing their house erected
thereon;

b) ORDERING the defendants, successors in interest or their
representatives, agents, or persons acting in their behalves, to
pay the plaintiff the amounts of P20,000,00 as moral damages,
P15,000.00 as attorneys fees and P1,000.00 as reasonable
monthly rental fee to be computed from the time extra-judicial
5

demands were made by the plaintiffs until the defendants vacate
the lot in question and peacefully delivers the same to herein
plaintiff.

c) ORDERING the defendants to pay the costs of this suit.

Other reliefs, just and equitable, under the foregoing premises
are likewise prayed for.

[Town, Province] , September 30, 2014.







Copy furnished by registered mail:

ATTY. [CLICK AND TYPE NAME]
Counsel for the Defendants
[Complete Address]

Registry Receipt No._____________
Date:_________________________


EXPLANATION
( Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Procedure)

Due to distance and the absence of a messenger, personal
service of this Pre-Trial Brief for the Plaintiff to the adverse counsel
is impracticable; hence, service is being made by registered mail in
accordance with law.

[COUNSEL]