November 2, 2023

Mr. Abo E. Gado

Defendant
27,Purok 1, Cor. Zamora St.
Brgy. San Isidro
Camiling, Tarlac

This legal opinion answers your question on whether cleaning is considered

as an actual possession for the purpose of granting relief in favor of defendant in a
case of forcible entry?

Facts of the Case:

Mr. Pan Y. Eroh, through counsel, filed a case for forcible entry against the
Defendant. The court granted the complaint for the reason that the Complainant
was found to be the prior possessor who merely cleaned the premises, and caused
the removal of the squatters. He received the decision dated October 20, 2023 on
October 27, 2023. He is in distress because of the decision as it will be executed
soon.
Issues:
Whether the acts of cleaning the premises and causing the removal of
squatters are considered as possession for the purpose of establishing material
possession in the case of forcible entry?
What are the legal remedies to stay the execution of the decision and to
recover the property in favor of the defendant?
Applicable Laws and Jurisprudence
Article 523 of the Civil Code provides that possession is the holding of a
thing or the enjoyment of a right.
The requisites of possession are the following:
a) There must be a holding or control of a thing or a right.
b) There must be a deliberate intention to possess; and
c) The possession must be by virtue of one’s own right. (Paras,
Civil Code Annotated, Volume 2, 2014)
Recovery of Material Possession
Action for Ejectment is a summary action for recovery of actual, material
or de facto physical possession through an action of forcible entry or unlawful
detainer. (Section 1, Rule 70 of the Rules of Court)
In the case of Ma. Luz Esperal vs Ma. Luz Trompeta-Esperal 1, the Court
ruled that the only issue in forcible entry cases is the physical or material
possession of real property—prior physical possession and not title.
The following are the requisites for a case of forcible entry as follows: (a)
that they have prior physical possession of the property; (b) that they were
1
G.R. No. 229076, September 16, 2020

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deprived of possession either by force, intimidation, threat, strategy or stealth; and
(c) that the action was filed within one year from the time the owners or legal
possessors learned of their deprivation of the physical possession of the property.2
Right to Possess vis a vis Right of Possession
Right to Possession refers to the right or incident of ownership. (e.g. A owns
a car. As an incident of ownership, X is entitled to possess the car.) While Right of
Possession refers to a concept which is independent of the right of ownership (e.g.
A is renting a commercial space for his pet shop from B who is the owner of the
establishment. A is not the owner of the commercial space but he is entitled to
right of possession under the lease agreement with B.) (Paras, Civil Code
Annotated, Volume 2, 2014)
In David vs Butay3, petitioner and respondent entered into deed of
conditional sale over a 3000 out of 5000 square meter parcel of land. Later,
respondent sold the remaining to another person but it encroached the portion sold
to petitioner. When petitioner learned the encroachment, he immediately
constructed a perimeter fence and a shanty to protect his right and further establish
his possession over the 3000 square meter parcel of land. To legally protect his
possession, he filed a case for forcible entry against respondents and the other
buyer.
The Court ruled in this case that petitioner successfully proved his prior
physical possession when he immediately constructed a fence and a shanty. Thus:
x x x plaintiff was able to show that the fence and
shanty or gazebo he constructed on the subject parcel of land
still existed at the time of the entry by defendants thereon.

xxx
It must be noted however that out of the total 5,000 square
meters originally owned by defendant Willy, he only sold a
portion of 1,553 square meters to defendant Butay. Plaintiff
only acquired 3,000 square meters. Since plaintiff had already
delineated the area he was possessing, defendants could have
easily taken possession of the 2,000 square meters which
plaintiff did not buy. Unfortunately, it was on this 3,000
square meters which plaintiff possessed where defendant
Butay erected her structure, thereby forcibly depriving
plaintiff of his possession and occupation of the portion of
1,553 square meters of the subject parcel of land.
Stay of Execution of Judgement
Section 19, Rule 70 of the Rules of Court states as follows:
Section 19. Immediate execution of judgment; how to
stay same. — If judgment is rendered against the defendant,
execution shall issue immediately upon motion unless an
appeal has been perfected and the defendant to stay execution
2
Supra
3
G.R. No. 220996. April 26, 2022

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 files a sufficient supersedeas bond, approved by the Municipal
Trial Court and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to the time of the
judgment appealed from, and unless, during the pendency of
the appeal, he deposits with the appellate court the amount of
rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In
the absence of a contract, he shall deposit with the Regional
Trial Court the reasonable value of the use and occupation of
the premises for the preceding month or period at the rate
determined by the judgment of the lower court on or before the
tenth day of each succeeding month or period. The supersedeas
bond shall be transmitted by the Municipal Trial Court, with
the papers, to the clerk of the Regional Trial Court to which
the action is appealed.
Analysis and Conclusion
Article 523 of the Civil Code governs the concept of possession over a
property. Under the law, there are various kinds of possession which is relative in
every aspect of holding of a thing or enjoyment of a right. Certainly, not all acts of
possession are material to a case of forcible entry because as ruled in many cases,
in forcible entry what is determined is the prior actual possession over a property.
The plaintiff has all the rights not to be disturbed in his possession of the property.
Thus, he can file a case for forcible entry even against the owner since what is
determined in ejectment case, through forcible entry, is merely the fact of actually
holding the thing or property which must be proven to be prior in time.
Thus, in a case, the Court ruled that:
x x x A party who can prove prior possession can
recover such possession even against the owner himself.
Whatever may be the character of his possession, if he has
in his favor prior possession in time, he has the security
that entitles him to remain on the property until a
person with a better right lawfully ejects him. x x x
Further, it is not required that there be an appreciable
length of time of prior physical possession. In other words,
even when prior physical possession is short, for as long as
the prior physical possession is established, then
recovery of possession under Rule 70 of the Rules of
Court may be granted.
The ruling shows that in forcible entry the possession must be based on
actual holding of a property because its nature and concept are to determine who
between the plaintiff or respondent has the better right of possession based on
established fact of physical holding of the property which must be prior in time.
Under the Rules of Court, it is a summary action since the disposition of the case
must pertain only to the fact of prior actual possession. It does not only resolve the
better right of possession but also give reliefs to the parties since it is designed to
give security to a party who has a right of possession.

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 The act of cleaning the premises of the property cannot be equated to the
right of possession since in forcible entry it is material that the possession must be
based on the right of possession which is a possession independent of ownership.
The acts of the defendant in cleaning the premises of the property, and causing the
removal of the squatters are not the right of possession contemplated in a case of
forcible entry since such act cannot be established to be an act of actually
possessing the property. It may be considered as an act of ownership which is
evident by the fact of causing the removal of the squatters, or any other act of
possession which is not contemplated in a case of ejectment. In a case, causing the
removal of the squatters is an exercise of right of dominion which is an incident of
right of ownership.
Under the Rules of Court, judgement in a case of forcible entry is
immediately executory which means that upon the receipt of the decision by the
plaintiff, it can already be executed without waiting for the lapsed of the period to
appeal. However, it can be stayed by the defendant by complying with the
following:
a) Perfect an appeal;
b) File a supersedas bond in favor of the plaintiffto pay for the rents,
damages, and costs accruing down to the time of the judgement
appealed from; and
c) Deposit periodically with the RTC, during the pendency of the appeal,
the adjudged amount of rent due.
Under Section 2, Rule 40 of the Rules of Court, the period to file an appeal
from the decision of the first level court is 15 days from the receipt by the
appellants of the decision.
Recommendation
Certainly, in ejectment through forcible entry, actual holding of the
property must be coupled with intent to possess which must be shown by the overt
act of the possessor because possession which is not actual will not make a case of
forcible entry. There must be a categorical intent to actually possess the property
for one to be entitled to relief in a case of forcible entry. As shown in the case of
Butay v David, the actual holding is manifested by the plaintiff by constructing a
fence and a shanty on the premises. In that case, there is a categorical intent on the
part of the plaintiff to actually possess the property by delineating the metes and
bounds of his property. He did those acts to show that no one could encroach what
he is actually possessing.
The acts of cleaning the premises and causing the removal of the squatters
are not a categorical act of actual possession since everyone can do the same even
an owner as an exercise of right of ownership. Thus, the act of cleaning without a
categorical intent to actually possess the property is not considered as a physical or
material possession contemplated in a case of ejectment through forcible entry.
In such case, the decision can still be contested and decided in favor of
Defendant since Plaintiff’s act of cleaning the property is not a clear manifestation
of actual possession as contemplated in the above case.
The Defendant can stay the immediate execution of the judgement in favor
of the Plaintiff firstly by filing an appeal within a period of 15 days which from
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October 28, 2023 to November 13, 2023. Secondly, by filing a supersedeas bond in
favor of the Plaintiff; and thirdly by depositing periodically with the Regional Trial
Court (RTC), during the pendency of the appeal, the adjudged amount of rent due.
Thus, during the pendency of the appeal, Mr. Abo E. Gado can still retain the
possession of the said property by following the requirements stated above.
I appreciate the opportunity to advise you regarding this matter. Please let
me know if you wish to discuss any of these issues further. Thank you.

Sincerely Yours,
Marvin B. Niño

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