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The second phase of the eminent domain action is concerned with the
determination by the court of "the just compensation for the property
sought to be taken." This is done by the court with the assistance of not
more than three (3) commissioners x x x .
It is only upon the completion of these two stages that expropriation is
said to have been completed. The process is not complete until payment
of just compensation. Accordingly, the issuance of the writ of possession
in this case does not write finis to the expropriation proceedings. To
effectuate the transfer of ownership, it is necessary for the NPC to pay the
property owners the final just compensation.[12] (emphasis and
underscoring supplied)
In the present case, the mere issuance of a writ of possession in the
expropriation proceedings did not transfer ownership of the lots in favor of
the City. Such issuance was only the first stage in expropriation. There is
even no evidence that judicial deposit had been made in favor of
respondents prior to the Citys possession of the lots, contrary to Section
19 of the LGC.
Respecting petitioners claim that they have been named beneficiaries of
the lots, the city ordinance authorizing the initiation of expropriation
proceedings does not state so.[13] Petitioners cannot thus claim any right
over the lots on the basis of the ordinance.
Even if the lots are eventually transferred to the City, it is non sequitur for
petitioners to claim that they are automatically entitled to be beneficiaries
thereof. For certain requirements must be met and complied with before
they can be considered to be beneficiaries.
In another vein, petitioners posit that respondents failed to prove that
their possession is by mere tolerance. This too fails. Apropos is the ruling
in Calubayan v. Pascual:[14]
In allowing several years to pass without requiring the occupant to vacate
the premises nor filing an action to eject him, plaintiffs have acquiesced to
defendants possession and use of the premises. It has been held that a
person who occupies the land of another at the latters tolerance or
permission, without any contract between them, is necessarily bound by
an implied promise that he will vacate upon demand, failing which a
summary action for ejectment is the proper remedy against them. The
status of the defendant is analogous to that of a lessee or tenant whose
term of lease has expired but whose occupancy continued by tolerance of
the owner. In such a case, the unlawful deprivation or withholding of
possession is to be counted from the date of the demand to vacate.
(emphasis and underscoring supplied)
RULE 68: FORECLOSURE OF REAL ESTATE MORTGAGE
Meanwhile, on March 16, 2005, Anita filed an ex-parte petition for the
issuance of a writ of possession17 (ex-parte petition) before the RTC,
docketed as LRC Case No. TG-05-1068, claiming that the same is
ministerial on the courts part following the consolidation of her and her
husbands title over the subject property. Impleaded in said petition are
Sps. Gutierrez, including all persons claiming rights under them.
ISSUE: who has a beter right to the property?
whether or not the CA erred in finding no grave abuse of discretion on the
part of the RTC when it issued the injunctive writ which enjoined Sps.
Marquez from taking possession of the subject property.
HELD: The petition is meritorious.
It is an established rule that the purchaser in an extra-judicial foreclosure
sale is entitled to the possession of the property and can demand that he
be placed in possession of the same either during (with bond) or after the
expiration (without bond) of the redemption period therefor. To this end,
the Court, in China Banking Corp. v. Sps. Lozada41 (China Banking Corp.),
citing several cases on the matter, explained that a writ of possession
duly applied for by said purchaser should issue as a matter of course, and
thus, merely constitutes a ministerial duty on the part of the court, viz.:42
The procedure for extrajudicial foreclosure of real estate mortgage is
governed by Act No. 3135, as amended. The purchaser at the public
auction sale of an extrajudicially foreclosed real property may seek
possession thereof in accordance with Section 7 of Act No. 3135, as
amended, which provides:
SEC. 7. In any sale made under the provisions of this Act, the purchaser
may petition the Court of First Instance of the province or place where the
property or any part thereof is situated, to give him possession thereof
during the redemption period, furnishing bond in an amount equivalent to
the use of the property for a period of twelve months, to indemnify the
debtor in case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act. Such
petition shall be made under oath and filed in form or an ex parte motion
in the registration or cadastral proceedings if the property is registered, or
in special proceedings in the case of property registered under the
Mortgage Law or under section one hundred and ninety-four of the
Administrative Code, or of any other real property encumbered with a
mortgage duly registered in the office of any register of deeds in
accordance with any existing law, and in each case the clerk of court shall,
upon the filing of such petition, collect the fees specified in paragraph
eleven of section one hundred and fourteen of Act Numbered Four
hundred and ninety six as amended by Act Numbered Twenty-eight
hundred and sixty-six, and the court shall, upon approval of the bond,
order that a writ of possession issue addressed to the sheriff of the
province in which the property is situated, who shall execute said order
immediately.
The ministerial issuance of a writ of possession in favor of the purchaser in
an extra-judicial foreclosure sale, however, admits of an exception.
Section 33,45 Rule 39 of the Rules of Court (Rules) pertinently provides
that the possession of the mortgaged property may be awarded to a
purchaser in an extra-judicial foreclosure unless a third party is actually
holding the property by adverse title or right. In the recent case of Rural
Bank of Sta. Barbara (Iloilo), Inc. v. Centeno,46 citing the case of China
Banking Corp., the Court illumined that "the phrase a third party who is
actually holding the property adversely to the judgment obligor
contemplates a situation in which a third party holds the property by
adverse title or right, such as that of a co-owner, tenant or usufructuary.
The co-owner, agricultural tenant, and usufructuary possess the property
in their own right, and they are not merely the successor or transferee of
the right of possession of another co-owner or the owner of the property.
Notably, the property should not only be possessed by a third party, but
also held by the third party adversely to the judgment obligor."47 In other
words, as mentioned in Villanueva v. Cherdan Lending Investors
Corporation,48 the third person must therefore claim a right superior to
that of the original mortgagor.
In this case, it is clear that the issuance of a writ of possession in favor of
Sps. Marquez, who had already consolidated their title over the extrajudicially foreclosed property, is merely ministerial in nature. The general
rule as herein stated and not the exception found under Section 33, Rule
39 of the Rules should apply since Sps. Alindog hinged their claim over
the subject property on their purported purchase of the same from its
previous owner, i.e., Sps. Gutierrez (with Gutierrez being the original
mortgagor). Accordingly, it cannot be seriously doubted that Sps. Alindog
are only the latters (Sps. Gutierrez) successors-in-interest who do not
have a right superior to them.
3. ARDIENTE V PROVINCIAL SHERIFF
4. LZK HOLDINGS V PLANTERS DEV BANK
FACTS: LZK Holdings obtained a P40,000,000.00 loan from Planters Bank
on December 16, 1996 and secured the same with a Real Estate Mortgage
over its lot located in La Union. The lot measures 589 square meters and
is covered by Transfer Certificate of Title No. T-45337.
On September 21, 1998, the lot was sold at a public auction after Planters
Bank extrajudicially foreclosed the real estate mortgage thereon due to
LZK Holdings' failure to pay its loan. Planters Bank emerged as the highest
bidder during the auction sale and its certificate of sale was registered on
March 16, 1999.
On April 5, 1999, LZK Holdings filed before the RTC of Makati City, Branch
150, a complaint for annulment of extra judicial foreclosure, mortgage
contract, promissory note and damages. LZK Holdings also prayed for the
issuance of a temporary restraining order (TRO) or writ of preliminary
injunction to enjoin the consolidation of title over the lot by Planters Bank.
Meanwhile, upon motion of LZK Holdings, the RTC-Makati declared as null
and void the consolidated title of Planters Bank in an Order5 dated June 2,
2000. Such ruling was affirmed by the CA in a Decision6 dated February
26, 2004 in CA-G.R. SP No. 59327. When the matter reached the Court via
G.R. No. 164563, we sustained the CA's judgment in our Resolution7 dated
September 13, 2004.
Planters Bank also appealed the May 11, 2000 Order of the RTC-San
Fernando which held in abeyance the resolution of its ex parte motion for
the issuance of a writ of possession. This time, Planters Bank was
victorious. The CA granted the appeal and annulled the assailed order of
the RTC-San Fernando. Aggrieved, LZK Holdings sought recourse with the
Court in a petition for review docketed as G.R. No. 167998.8 In Our
Decision dated April 27, 2007, we affirmed the CA's ruling and decreed
that Planters Bank may apply for and is entitled to a writ of possession as
the purchaser of the property in the foreclosure sale, viz:
"A writ of possession is a writ of execution employed to enforce a
judgment to recover the possession of land. It commands the sheriff to
enter the land and give possession of it to the person entitled under the
judgment. It may be issued in case of an extrajudicial foreclosure of a real
estate mortgage under Section 7 of Act No. 3135, as amended by Act No.
4118.
Under said provision, the writ of possession may be issued to the
purchaser in a foreclosure sale either within the one-year redemption
period upon the filing of a bond, or after the lapse of the redemption
period, without need of a bond.
ISSUE: WON a hearing is necessary in granting writ of possession
HELD: No
We cannot also uphold the contentions of LZK Holdings that the RTC, in
issuing the writ of possession, transgressed Act No. 3135.23
No hearing is required prior to the issuance of a writ of possession. This is
clear from the following disquisitions in Espinoza v. United Overseas Bank
Phils.24 which reiterates the settled rules on writs of possession, to wit: