Settlement of Estate; Estate Taxes; Delays and their Consequences

Incidents of a Person’s Death.

Typically, there are, to my mind, two main incidents of a person’s death: Succession and Taxation. These two come hand in hand, meaning if you succeeded to a nil estate, you are taxed nil.

The legal process by which a deceased’s net estate is distributed to the heirs is called Settlement of Estate. It could either be a testate proceeding, where the deceased left a will, in which case the latter is also called the testator, or intestate proceeding, where the deceased left no will, and in which case the latter is simply referred to as the decedent. The term decedent is plain and generic to a person who dies with or without a will.

Settlement of Estate may be done either judicially or extra-judicially. However, there are circumstantial requirements that make extra-judicial settlement (fast and less expensive) available or possible. For instance, if the decedent left a will, the heirs foreclose their option of settling the estate out of court (extra-judicial), submission to probate being the only route.

Even if the decedent left no will, but the heirs are in disagreement on the particulars or conditions of partition, or the decedent left debt/s, they likewise have to go to court for the settlement of respective creditor’s claims, and to make a determination of the heirs’ share thereof applying the laws on intestacy or legal succession. Also, if the amount of the estate exceeds Ten Thousand Pesos (Php10,000.00), extra-judicial partition is not available. In judicial settlement of estate, where the decedent left no will, a letter of administration shall be applied for, and granted by, the court where the same is filed.

Probate of a Will, Testate Proceeding

Book 2, Chapter 2 of the New Civil Code defines a Will, viz:

Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. (667a)

Two kinds of Will:

Holographic Will. A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed (Article 810, Civil Code).

Notarial Will. Notarial Will is governed by the following provisions of the Civil Code, among others:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

In a Will, four parties may figure out: Indispensably, the testator who made the Will; the executor (she is also called executrix),or the person upon whom the testator has left the task of implementing the provisions of the Will; the legatee or the person on whom personal property is given; and the devisee on whom real property is given.

While the will takes effect upon the death of the testator, it can however be probated during the testator’s lifetime. In fact, this is favored as the testator could no doubt establish and affirm the validity of his own Will.

Where the decedent left a Will, any interested party (heirs, creditors, or anyone with equitable claim against the estate) may file a petition for Probate of the Will (a special proceeding governed by special set of rules under Rule 73 of the Revised Rules of Court) before the proper court: within Metro Manila, Municipal Trial Court (MTC) if the estate does not exceed Four Hundred Thousand Pesos (Php400,000.00) or the Regional Trial Court (RTC) if the estate exceeds said amount; outside of Metro Manila, Municipal Trial Court (MTC) if the estate does not exceed Three Hundred Thousand Pesos (Php300,000.00) or the Regional Trial Court (RTC) if the estate exceeds said amount.

Probate of a Will is mandatory: a Will shall pass no property, either personal or real, unless it is proved and allowed in a proper court. It is not at the option of the heirs whether to file for Probate or not. Even when an intestate proceeding had already commenced, once a Will of the same decedent is submitted to court, the latter is under obligation to suspend the same and supplant it with the proper Probate proceeding to determine its extrinsic validity: genuineness and due execution; and thereafter confirm its intrinsic validity.

This is so because as held by the Court in Dy Yieng Sangio V. Reyes (G.R. 140371-72, Nov. 27, 2006):

 “It is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, (sic) public policy, that it cannot be given effect.”

The judicial venue is determined by the decedent’s residence at the time of his death, and if he was an alien, the place in which he had estate (where properties are located).

Power of the Probate Court

Probate courts and proceedings therein deal generally with the extrinsic validity of the Will: that it is indeed the decedent’s will; that the testator has the testamentary capacity; that the Will complies with the formalities prescribed by law; and that the Will was duly executed (includes the determination if the testator was of sound and disposing mind at the time of execution, that he had freely executed the will, and was not acting under duress, fraud, menace or undue influence).

However, the courts have the power to pass upon issues concerning intrinsic validity (legitime or reserved shares of compulsory heirs, or compliance with the provisions on succession), and can declare a Will void even after it had been admitted to probate (declared extrinsically valid). In that sense, probate proceeding is in fact a two-stage proceeding. If a will is extrinsically invalid, it is voided and laws on intestacy (legal succession) apply even if it is found intrinsically valid. If the Will is intrinsically invalid, it is voided and laws on intestacy apply even if it had been found extrinsically firm.

When the Will has already been allowed, and creditors have already been paid, the net estate is now ready for distribution to the heirs. Here is where the snag comes in.

In our jurisdiction transfer of properties incident to the Settlement of Estate is allowed only upon securing a Tax Clearance or Certificate Authorizing Registration (CAR) from the Bureau of Internal Revenue (BIR) evidencing that Estate Taxes on the decedent’s Estate have been satisfied or paid.

Section 90 of the National Internal Revenue Code (NIRC) provides:

SEC. 90. Estate Tax Returns.

(A) Requirements. - In all cases of transfers subject to the tax imposed herein, or where, though exempt from tax, the gross value of the estate exceeds Two hundred thousand pesos (P200,000), or regardless of the gross value of the estate, where the said estate consists of registered or registrable property such as real property, motor vehicle, shares of stock or other similar property for which a clearance from the Bureau of Internal Revenue is required as a condition precedent for the transfer of ownership thereof in the name of the transferee, the executor, or the administrator, or any of the legal heirs, as the case may be, shall file a return under oath in duplicate, setting forth:

(1) The value of the gross estate of the decedent at the time of his death, or in case of a nonresident, not a citizen of the Philippines, of that part of his gross estate situated in the Philippines;

(2) The deductions allowed from gross estate in determining the estate as defined in Section 86; and

(3) Such part of such information as may at the time be ascertainable and such supplemental data as may be necessary to establish the correct taxes.

Provided, however, That estate tax returns showing a gross value exceeding Two million pesos (P2,000,000) shall be supported with a statement duly certified to by a Certified Public Accountant containing the following:

(a) Itemized assets of the decedent with their corresponding gross value at the time of his death, or in the case of a nonresident, not a citizen of the Philippines, of that part of his gross estate situated in the Philippines;

(b) Itemized deductions from gross estate allowed in Section 86; and

(c) The amount of tax due whether paid or still due and outstanding.

(B) Time for filing. - For the purpose of determining the estate tax provided for in Section 84 of this Code, the estate tax return required under the preceding Subsection (A) shall be filed within six (6) months from the decedent's death.

A certified copy of the schedule of partition and the order of the court approving the same shall be furnished the Commissioner within thirty (30) days after the promulgation of such order.

Naturally, there are consequences to delays or failure to comply with the provisions of the tax law. In this case, the consequences are rather hefty. For failing to file on time, the filer is charged a penalty (some fixed amount), plus interest (at some rate per annum) from the time the tax is due until it is paid.

However, the Commissioner may, in meritorious cases, grant a reasonable extension for the filing of Estate Tax Return of not exceeding thirty (30) days. Further, if the Commissioner finds that the payment of the estate tax or any part thereof on the due date would impose undue hardship upon the estate or any of the heirs, he may extend the payment of such taxes for a period not exceeding five (5) years in case of judicially settled estate, or two (2) in case of extra-judicially settled estate.

To reinforce the foregoing provisions and ensure payment of estate taxes the NIRC imposes upon, among others, RD, SEC, LTO, and other agencies with which registration of registrable properties is filed, the duty to allow transfers or registration in the name of transferee/s only upon production and presentation of Tax Clearance or Certificate Authorizing Registration (CAR) evidencing payment of estate taxes thereon.

Settle the Estate Taxes Promptly and Save the Estate

In my experience, it is NOT uncommon to come across heirs settling the estate of the decedent, and pay the corresponding estate taxes years after the latter’s death. Heirs, oblivious of the implications, do not bother to settle the estate of the decedent until there is that need to transfer titles to properties comprising the estate like when they decide to partition or sell whole or part of the estate.

Sadly, by that time, considerable time has likely elapsed, and the tax consequences have already factored in. One thing is for sure, though, you had better settle that NOW regardless of delays already incurred, than settle later and decimate the estate with penalties and interest on unpaid taxes.

Once you have the Tax Clearance, next stop is with Register of Deeds (RD) for registration: cancellation of prior titles, and issuance of new titles (subject to provision of law on redemption, where applicable). Of course, there is a registration fee of some amount for every thousand. By the time you get to the RD, you might have already sold the property so things should now be lighter for you.

With regards to extra-judicial settlement, again where circumstances warrant, it should be a breeze: less tedious and costly process. The heirs simply have to execute an affidavit stating that they are the only and sole heirs of the decedent, that the decedent left no will and no debt, and that the heirs voluntarily agreed to divide the estate among themselves. File the affidavit with the proper court, and the latter finding the same in order shall issue an order approving or affirming the same. With the order or approval of the court at hand, transfers may now be effected.

 

Entry of Appearance, When Necessary

Entry of Appearance, which is a formal written manifestation addressed to the court, is necessary when you appear as a permanent substitute counsel (as when previous counsel had died or withdrawn), but not when you are a counsel of record (you have commenced the action). In the latter case, oral manifestation suffices: “Your honor, appearing for the plaintiff/defendant, Atty. Reggie Duran of DuranDuran Law Offices.” Rock On!

If at the time of submission by substituting counsel’s written entry of appearance, the counsel of record (counsel being replaced) has not withdrawn yet, or has withdrawn but failed to secure the consent of the client, the former would not be allowed. Instead he or she would be entered into the record as collaborating counsel to the counsel of record, until a notice of withdrawal (signed by the private complainant) by counsel of record has been submitted to, and acknowledged by, the court.

If you are filling in for an absent Atty. from the same law office: “Your honor appearing for the plaintiff/defendant, Atty. Reggie Duran from the same law offices of (name absent attorney), DuranDuran Law Offices.

In Criminal Cases, since it is the Public Prosecutor who has the authority to prosecute in behalf of the state, the private complainant, upon filing of the information in court by the prosecutor, acting only as complaining witness/private witness, a private attorney whose services is engaged by the latter shall secure a written permission from the City Prosecutor to prosecute the case, under the direct control and supervision of the public prosecutor. In which case, the verbiage shall be (or words of the same import):

“Your honor appearing for the private complainant under the direct control and supervision of the public prosecutor, Atty. Reggie Duran of DuranDuran Law Offices.”

Weird?

Sorry If You Find This Post Weird, Some Surely Find This Helpful. Browse On Please...

Warning: This is aimed at both lawyers, law students, and Juan and all. There may be articles or posts, which find purpose only for lawyers and law students. If you chance upon them, you may try to see and appreciate what we endeavor to acquaint ourselves with, sometimes presented in no other way but discombobulated, other times you may actually find them easier to grasp (or so i thought), but at any rate, just have fun. It's like cracking a code.

If you don't find any use for them at all, my apologies, and I encourage you to browse through other posts that may respond to your query.

Preliminary Injunction/TRO in Tabular Presentation; 72-Hour TRO; 20-Day TRO

Exec. Judge of Multi Sala / Presiding Judge of Single Sala	Regular Court Judge where case is pending/or raffled to
SCENARIO 1 Sec. 5, Rule 58. 72-hour ex-parte TRO/w/out notice to adverse party on grounds of urgency; and grave injustice & irreparable injury/damage. Note: Pleader must do more than simply allege facts. Convince the court with facts. 1. If convinced, issues 72-hour TRO, and immediately complies with Sec. 4 (c), Rule 58: Service upon adverse party of 72-hour TRO must be preceded or contemporaneously accompanied by: 1) Summons; 2) Complaint/Initiatory Pleading and applicant’s affidavit and bond; and 3) Notice of Raffle. When Summons exempted (4 instances): 1) personal service cannot be effected; 2) substituted service cannot be effected; 3) person/respondent/defendant is not found in, or resides in the of the Philippines, but is temporarily out of country; or 4) person/respondent/defendant does not reside in the Philippines. For Writ of Preliminary Attachment, Summons is exempted, when: 1) personal service cannot be effected; 2) substituted service cannot be effected; 3) person/respondent/defendant is not found in, or resides in the of the Philippines, but is temporarily out of country; or 4) person/respondent/defendant does not reside in the Philippines. 5) in Quasi In Rem/In Rem actions. 2. Conduct Raffle after notice to, and in the presence of the adverse party. Notes: File complaint w/prayer for PI. Although order may issue ex parte it only takes effect upon receipt by defendant. Upon issuance, have sheriff serve ASAP. Time the filing so that TRO is heard within 72 hours, otherwise it expires unheard. Ideally–and/or latest in the week to do–file for TRO on a Tuesday in order to have it raffled by the ensuing Thursday, and heard by Friday.	Within 72 hours from issuance by Executive Judge, decides after SUMMARY hearing whether to grant 17-day TRO to complete the 20-day TRO. Failure to issue order renders the 72-hour TRO functus officio with no further orders necessary. If 20-day TRO is granted, court must hear (complete hearing), & with prior notice, within such period whether or not to grant PI.
SCENARIO 2 No 72-hour TRO application Defendant is served with only Complaint, Summons, & Notice of Raffle. By raffle, case is assigned to regular court. An Executive or Presiding Judge cannot issue a 20-day TRO.	Issues 20-day TRO upon prior notice and summary hearing (w/in 24 hrs. from sheriff’s return of service or records received by raffled branch) as a general rule.   Must decide w/in same period, after ordering party to be enjoined to show cause why TRO shall not be granted, WoN to grant. Otherwise TRO is automatically vacated.   Effectivity is not extendible w/out need of any judicial declaration; no court has authority to extend or renew on the same ground for which it was issued.    By jurisprudence though, period may be extended, but only by agreement of both parties.
SCENARIO 3 Brought about by amendment of sec 5 rule 58 in Dec 2007 Grounds: great and irreparable injury. Same as Scenario 2: Defendant is served with only Complaint, Summons, & Notice of Raffle. By raffle, case is assigned to regular court.	May issue 20-day TRO w/out Notice & Hearing if convinced from facts on affidavit or verified application that grounds of great and irreparable injury existed. Must decide w/in same period whether or not to grant PI. If the court grants a PI & the same is subject of petition for certiorari with next level court, the court must resolve case w/in 6 months. Otherwise, judge is liable for administrative sanction.   The trial court, the Court of .Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ.
Preliminary Injunction CANNOT issue WITHOUT Notice and Summary Hearing. Applied for at any time as long as the case is pending w/ MTC/RTC/CA/SC. If issued by Court of Appeals, it may be granted by any member for a 60-day period. No renewal/extension. After the lapse, it expires. If issued by the Supreme Court, it may be granted by any member without any period. It shall remain effective until otherwise lifted. Sandiganbayan may issue PI. NOTE: With the Court’s implementation, pursuant to its rule-making power, of eCourt System, Notice of Raffle, is obviated, or at least is omitted, owing to system limitation (system automatically raffles a case to a trial court upon filing). Possible justification: Since raffle no longer involves human intervention, the evil sought to be prevented (rigging) is avoided, though this remains unanswered unaddressed by the court for its novelty, and for absence of any controversy brought before it. General Provisions: Section 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a) Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. — The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. (6a) Section 7. Service of copies of bonds; effect of disapproval of same. — The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. (8a) Section 8. Judgment to include damages against party and sureties. — At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. (9a) Section 9. When final injunction granted. — If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts of confirming the preliminary mandatory injunction. (10a)

 

PI: It is the "strong arm of equity, an extraordinary peremptory remedy that must be used with extreme caution, affecting as it does the respective rights of the parties.

Source: Spouses Lago vs. Judge Godofredo B. Abul, Jr., A.M. No. RTJ-10-2255 (Formerly OCA IPI No. 10-3335-RTJ). To read the entire text of the case, click here.
In part, from the recorded lecture of Atty. Tranquil Salvador III

Quezon City Courts Try Out eCourt System; Quandary on 72-Hour TRO

Quezon City trial courts, and offices of clerks of court, on Tue, May 2, 2013, commenced its month-long trial run of the eCourt system (electronic court filing), under the circular issued by Court Administrator Midas Marquez, to evaluate its effectiveness: accuracy, security, and integrity.

The eCourt system is constituent to SC’s Enterprise System Plan for the judiciary. If all goes well, eCourt system goes live next month covering recording, docketing, monitoring, and reporting case information on all active cases that are in the database. Last month, also on order and authority of the Court Administrator, Quezon City trial courts suspended hearings (except on urgent matters) to take on the herculean task of encoding all active cases into the database.

Once implemented, the public will have access to information on status of cases filed with and being heard at the local courts.

I visited the Quezon City Hall of Justice to observe its implementation. Expectedly, the day one of the dry run was all but smooth. Understandably, considering the average age for court employees, which is out of tech-savvy range, birth pains are abound, with personnel visibly handicapped by the new system. But the personnel concerned have to catch up quickly if this is to benefit the thousands of parties, who have long been yearning for relief from the tedious and onerous process of monitoring a case, out of the convenience and accessibility this automation is poised to bring about.

On the lighter side, with sufficient IT contingent, apparently patiently putting up with questions at almost every step from non-techie lot of the personnel, I am confident we stand to escape frustration.

On the more contentious side, though, since a feature of the automated system is to automatically raffle a case upon docketing, this seems to have overlooked the requirements of Notice of Raffle, and Raffle in the Presence of the Defendant, in cases where a 72-hour Temporary Restraining Order (TRO) is prayed for.

Incidentally, there was such a case on day one. Consequently, there was a little confusion when the counsel, handed with his copy of the complaint bearing on its face the court to which such was raffled, raised the concern regarding the aforecited requirements of the law under Rule 58 of the Revised Rules of Court. Basically, what he was saying was should he just helplessly accept that his prayer, grounded on extreme urgency and irreparable injury, at that, would simply meet certain denial for failure to comply with the said requirements even when he consciously intended to so do?

Stunned, the personnel concerned could not give any answer, except to cite that the automatic raffle of the case to assigned court is requisite to completing the transaction (filing). Wary of the prospect of denial, the counsel went to the court admin office where the case was raffled to ask the same question: What would happen to his prayer for a 72-hour TRO where a raffle is done without the required Notice to Raffle, and eventual presence during raffle of, the defendant? Sadly, the court personnel were just as stunned and confused, saying only “oo nga no? paano yan?”

The issue resulted in an impasse, with the lawyer leaving the hall with his question unanswered. He must have left the fate of his quandary upon the judge. After all, if the judge schedules the hearing without the required notice, and eventually grants the TRO, the opposing party may appeal, hopefully up to the Supreme Court, so that the Court may resolve the issue early for the enlightenment and guidance of the courts a quoand the legal practitioners.

Otherwise, this seeming misplaced feature stands to mar this otherwise laudable innovation with a controversial oversight that effectually takes away, by technical limitation, what the law clearly provides.

As a lawyer, I will dare to throw my own two cents on the issue. I think the process can stand as it is now. Since the purpose sought to be served or the evil sought to be prevented by requiring that there be a notice of raffle, and the defendant be present in the conduct of the raffle itself, is the experience in the past where raffles were staged and rigged so that judges of their (parties) choice take the case, either due to the latter’s personal bias for or against the issue involved, or something else as brutally alluded to in the past as prearranged decision. The automated/automatic and no-human-intervention nature of the raffle in the eCourt system removes that evil or that problem, which brought about the need for the notice of raffle in the first place.

Having removed the evil, it serves no purpose, rather defeats the very purpose of eCourt system and the Court’s long battle cry, of expediting resolution of cases, if we put another layer in the process where its absence will only cut it by a third, without sacrificing the rights of any parties involved.

Ejectment Case: Forcible Entry or Unlawful Detainer

An ejectment case is a summary proceeding designed to provide expeditious means to protect actual possession or the right to possession of the property involved (Barrientos v. Rapal, G.R. No. 169594, July 20, 2011). It is expeditious as it is governed by the Rule on Summary Procedure, a special rule where extra pleadings and motions (other than the Complaint and Answer), otherwise available in an ordinary civil action, are prohibited precisely to insulate it from unnecessary delays. The main issue to be resolved here is the issue of possession or the right to hold possession.

If you’re a lessor of real property, you may, if you haven’t already, have to resort to the remedy of ejectment in cases where a lessee withholds possession of leased property after the latter’s right to hold the same has already terminated, as where lessee has failed to pay rental, or has failed to comply with the conditions of the lease contract, in which case it is called Unlawful Detainer.

It is also available where a present possessor has held possession of a subject property at the tolerance of the owner or the one entitled to its possession, and thereafter refused, after demand to vacate has been made upon him, or continues his possession thereof. In this case, an inceptively lawful possession has become unlawful, when the tolerated possessor refused to return the property upon demand by the rightful possessor or owner. Anyone, whose stay in the property is merely tolerated, is bound by an implied obligation to vacate and return the same to, upon demand of, the rightful possessor or owner.

Note that even the owner of the property may be sued for ejectment when he deprives another of lawful possession, as in a case of a lessor depriving or ousting a lessee, who has been compliant with his obligations under a lease contract, of possession thereof.

Another species of ejectment is Forcible Entry. It is the same special proceeding as Unlawful Detainer, but the means whereby the lawful possessor or owner of the subject property has been deprived thereof are: Force, Intimidation, Strategy, Threat, and/or Stealth (FISTS). Anyone who has been ousted of possession to a real property by a "strong hand" using any of the means mentioned, may resort to this summary remedy to restore him immediately to possession.

In both cases, ownership is not imperative in order for a plaintiff to acquire legal personality to sue, as again, the issue is mere right to possession. In unlawful detainer it is indispensable or jurisdictional that a demand to pay rental or comply with the conditions of the lease and vacate is made before an action may properly be filed. Accordingly, absence of such prior demand could lead to the dismissal of the case. However, the same is not true in forcible entry.

In both cases, resort to barangay conciliation is condition precedent, meaning that the opposing party may raise as objection the fact that the dispute has not been referred to the barangay authorities for conciliation, and the same may be ground for the dismissal of the action. However, it is not jurisdictional, meaning that it may be waived by such opposing party. It is deemed waived when the opposing party failed to timely object to the fact of its (barangay conciliation) absence.

Both actions must be brought (filed in court) within one year. The period of one year is reckoned from, in the case of forcible entry, the date of actual possession if the deprivation or the ground for the action is force, intimidation, or threat; and the date of discovery and prohibition if the deprivation or ground for the action is strategy or stealth. In unlawful detainer, the period of one year is counted from the date of last demand.

In the case of forcible entry, the possession is unlawful/illegal from the very beginning, while in unlawful detainer, it is inceptively lawful until the defendant refused and failed to vacate, after demand is made upon him by the plaintiff. Demand is made upon the termination of the defendant's right to hold possession of the subject property, either by expiration of contract, breach of terms of the contract, or when an owner who tolerated the defendant's stay has manifested its intention to use the property effectively ending the tolerance.

In both cases, the provisional remedy of preliminary injunction and/or temporary restraining order (TRO) is available under the provision of Rule 70, on forcible entry and unlawful detainer, and in relation to Rule 58, on preliminary injunction and/or temporary restraining order.

 

What This Law Blog Aims To Achieve

It is amazing how times have changed. Ten to twenty years ago, only a few had a sense of what the internet could do. During those times legal services were most exclusive to, and restrictive in favor of, a relatively small number of people: mostly those who could afford to burn some cash for it. Incidentally, that was the same time the haves grew their wealth fastest, in some instances, at the expense of the have-nots. If you can litigate, you can win.

Fast forward to the present. Law and everything else are on the net. Everything that requires information has become a lot more accessible to all, rather than the traditional few. Google, for example, has revolutionized how we utilize information online, and it is rewarded handsomely in its share value today.

While paid legal services, unlike goods and pretty much every other service, continue to be prohibited online, owing to the puristic ideals by which traditional hard core legal conformists regard law practice (you can’t advertise legal practice: it is not business it is profession), free legal advice has become a matter of social connection.

While it’s true that lawyers charge relatively hefty amount (understandably because one has to endure nine years of college torture before he could take a crack at the Bar and, only if lucky enough, start clawing himself (never a walk in the park for beginning lawyers) in drudgery to recouping his investment earning a living–you’ll get chastised using the line), many are earnestly willing to provide free legal advice, at times leading to pro bono court representations.

With tons of articles, conversations in forum sites, the Codes and laws themselves, jurisprudence, and opinions, that graciously litter the web, one could get answers to otherwise costly legal questions for free. This bodes well for bridging the gaping divide for legal service access between two groups of people.

I would like to believe this ushers in the likelihood of more peace. When people feel they can be vindicated in law, vendetta slowly vanishes to oblivion.

With that optimism in mind, this law blog seeks to inform the readers on Philippines laws and legal developments, and respond to their legal quandaries.

Warning: This is aimed at both lawyers, law students, and Juan and all. There may be articles or posts, which find purpose only for lawyers and law students. If you chance upon them, you may try to see and appreciate what we endeavor to acquaint ourselves with, sometimes presented in no other way but discombobulated, other times you may actually find them easier to grasp (or so i thought), but at any rate, just have fun. It's like cracking a code.

If you don't find any use for them at all, my apologies, and I encourage you to browse through other posts that may respond to your query.