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G.R. No. 152440 January 31, 2005 BORBAJO vs. HIDDEN VIEW HOMEOWNERS, INC.

Jose C. Bontuyan (Bontuyan) and the Solons were the registered owners of a parcel of agricultural land Barangay Bacayan, Cebu City as evidenced by a Transfer Certificate of Title. At the instance of Bontuyan, the property was surveyed to convert it into a subdivision. The Regional Technical Director of the DENR, Lands Management Sector in Cebu, approved the subdivision plan. Bontuyan sold the resulting lots to different individuals. Among the lots sold are the ones which later became the subject of this case, the three (3) road lots. The road lots were sold to petitioner Borbajo and Bongo and they obtained the titles to the lots. Using the advance payments of his lot purchasers, Bontuyan proceeded to develop a subdivision which was later named Hidden View Subdivision I by its residents and homeowners. Later, he applied for and secured from the Housing and Land Use Regulatory Board (HLURB) a License to Sell10 dated 29 July 1991. Borbajo also decided to develop into a subdivision the other properties adjacent to Hidden View Subdivision I which she acquired. She named this new subdivision ST Ville Properties and secured Certificate of Registration No. 05005 for the ST Ville Properties project and a License to Sell the same from the HLURB. She also secured a Certificate of Registration for another subdivision project called Hidden View Subdivision II from the HLURB, with the corresponding License to Sell. The two new subdivision projects were located at the back of Hidden View Subdivision I. The residents and homeowners of Hidden View Subdivision I heard reports to the effect that Borbajo had purchased the entire subdivision from Bontuyan through an oral agreement. They also heard that they have no right to use the road lots, since the lots have already been registered in Borbajos name. When confronted by the homeowners about her claim that she had bought the subdivision from Bontuyan, Borbajo confirmed her claim of ownership over the subdivision and the road lots. She also told them that they have "no right regarding the road right-of-way." The HLURB replied that under the law the owner or developer of the subdivision should have legal title or right over the road lots of the subdivision and that if the title or right is in the name of other persons it follows that there is failure to comply with the requirements of the law. The HLURB Officer pointed out that Hidden View Subdivision II and ST Ville Properties had not filed an application for registration and license to sell with the HLURB. The homeowners caused the construction of a guardhouse at the entrance of Hidden View Subdivision I and hired the services of a security guard to prevent unauthorized persons and construction vehicles from passing through their subdivision. Borbajo filed before the RTC of Cebu City, Branch 58, an action for damages and injunction against Hidden View Homeowners, Inc. This was granted. The Court of Appeals reversed the lower court decision Borbajo contends that the appellate court erred in reversing the finding of the RTC that she is the developer of Hidden View Subdivision I. According to her, and as borne out by her testimony before the RTC, she was the true developer of Hidden View Subdivision I even though the License to Sell was issued in the name of Bontuyan. On the other hand, respondents argue that the sale of the road lots made by Bontuyan in favor of Borbajo was illegal and contrary to the provisions of Presidential Decree (P.D.) No. 957 which requires that the road lots in a

subdivision development shall be in the name of the developer or owner, of which Borbajo is neither.22 They aver that Borbajo fraudulently obtained her titles to the road lots through a falsified deed of sale which was the document presented to the Office of the Register of Deeds.23 They also point out that the use by Borbajo of the road lots for the ingress and egress of heavy equipment has continuously resulted in the rapid deterioration of the roads. Moreover, the road lots are not the nearest point between the development project of Borbajo and the provincial road.24 Finally, they assert that they are merely exercising acts of ownership which include the right to prevent others from enjoying the thing owned by them. Respondents oppose the issuance of a preliminary injunction because notwithstanding the registration of the subject road in Borbajos name, her title thereto is tainted by the discovery of fraud she allegedly perpetrated in securing the questioned titles. Issue:L Whether respondents may legally prevent Borbajo from using and passing through the three (3) road lots within Hidden View Subdivision I. It is a well-known doctrine that the issue as to whether title was procured by falsification or fraud can only be raised in an action expressly instituted for the purpose. A Torrens title can be attacked only for fraud, within one year after the date of the issuance of the decree of registration. Such attack must be direct, and not by a collateral proceeding. The title represented by the certificate cannot be changed, altered, modified, enlarged, or diminished in a collateral proceeding.33 The certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein.34 There are serious allegations that the issuance of the TCTs over the road lots was tainted with fraud as evidenced by alterations made on the face of the certificates and discrepancies in the records of the contract of absolute sale filed before the Office of the Register of Deeds and the Notarial Division of the RTC of Cebu City.35 If the court finds that the titles of Borbajo were obtained fraudulently, her right to the road lots ceases as well as her right-of-way by virtue of said titles. As long as the titles are not annulled, Borbajo remains registered a co-owner and therefore her right to use the road lots subsists. Likewise, with Borbajo as a registered co-owner of the road lots, it is utterly pointless to discuss whether she is entitled to the easement of right of way. Both from the text of Article 64936 of the Civil Code and the perspective of elementary common sense, the dominant estate cannot be the servient estate at the same time. One of the characteristics of an easement is that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the servient and the dominant estates belong to different owners. Borbajo, being a registered co-owner of the three (3) road lots, is entitled to the injunctive relief. A preliminary injunction order may be granted only when the application for the issuance of the same shows facts entitling the applicant to the relief demanded. 39 A preliminary injunction is not proper when its purpose is to take the property out of the possession or control of one party and transfer the same to the hands of another who did not have such control at the inception of the case and whose legal title has not clearly been established.40 The writ of preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 58, is made permanent, subject to the final outcome of Civil Case No. 21239 pending before the Regional Trial Court of Cebu City, Branch 9. #