La Verne A.

Abad
Legal Counseling
Atty. Tang

Problem:
I have a several tenants living in my apartments. Their lease expired and
had many violations on the lease contract, e.g. farm animals, unruly visitors
and etc. They refuse to leave the premises despite countless demands to
vacate. How should I go about this?

Advice:
They may be ejected based on two types of legal action: (1) ejectment (i.e.,
forcible entry or unlawful detainer) (accion interdictal); or (2) accion
publiciana (or the plenary action to recover the better right of possession).

An action for unlawful detainer and forcible entry must be filed within one
year from the date possession is lost (or the date the unlawful possession
started).The distinction between forcible entry and unlawful detainer is
premised on the nature of the possession. An action for forcible entry is
proper when the dispossession was by means of force, threat, intimidation,
strategy or stealth. An action for unlawful detainer, on the other hand, is
proper when the possession is originally lawful and turned unlawful upon
the expiration of the right to possess. Cases for ejectment are filed with the
Metropolitan or Municipal Trial Courts, and proceedings are summary in
nature.
An accion publiciana, on the other hand, may be filed only after the
expiration of the one-year period, based on the same grounds as ejectment,
and may be filed only with the Regional Trial Courts. Proceedings in this
case require the full presentation of evidence.

It is clear that the proper action for ejectment that you should file is one for
unlawful detainer. The lease already expired and that you have sent several
demands to vacate. All the requisites for filing an action for unlawful
detainer are present in your case (Section 2, Rule 70, Revised Rules of
Court of the Philippines).
In Unlawful detainer, there must be an allegation in the complaint of how
the possession of defendant started or continued, that is, by virtue of lease

or any contract, and that defendant holds possession of the land or building
after the expiration or termination of the right to hold possession by
virtue of any contract, express or implied. (Sarmienta, et.al. vs. Manalite
Homeowners Association, Inc., G.R. No. 182953, October 11, 2010).
It is summary in nature, lies in the proper municipal trial court or
metropolitan trial court. The action must be brought within one year from
the date of last demand.
However please remember that there is a condition sine qua non
before filing an action is the courts of law. This condition is stated in the
Local Government Code Section 412 sets forth the precondition to

filing

of complaints in court, to wit:

SEC. 412 Conciliation.- (a) Pre-condition to filing of complaint in
court. No complaint, petition, action, or proceeding involving any matter
within the authority of the lupon shall be filed or instituted directly in
court or any other government office for adjudication, unless there has
been a confrontation between the parties before the lupon chairman or
the pangkat, and that no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary as attested to by
the lupon chairman or pangkat chairman or unless the settlement has
been repudiated by the parties thereto.
(b) Where parties may go directly to court. The parties may go
directly to court in the following instances:
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings;
(3) Where actions are coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal property, and
support pendente lite; and
(4) Where the action may otherwise be barred by the statute of
limitations.
(c) Conciliation among members of indigenous cultural
communities. The customs and traditions of indigenous cultural
communities shall be applied in settling disputes between members of
the cultural communities.

Under Sec. 408 of the same Code, parties actually residing in the same city
or municipality are bound to submit their disputes to the Lupon for
conciliation/amicable settlement, unless otherwise provided therein:
SEC. 408. Subject Matter for Amicable Settlement; Exception
Thereto. The lupon of each barangay shall have authority to bring

together the parties actually residing in the same city or municipality for
amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or
instrumentality thereof;
(b) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year
or a fine exceeding Five Thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
(f) Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangayunits
adjoin each other and the parties thereto agree to submit their differences
to amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may
determine in the interest of justice or upon the recommendation of the
Secretary of Justice.
The court in which non-criminal cases not falling within the
authority of the lupon under this Code are filed may, at any time before
trial, motu proprio refer the case to the lupon concerned for amicable
settlement.
Hence, such condition must be followed for your case to be filed in court
shall prosper.

Atty. La Verne Ryan Carlo A. Abad