Republic of the Philippines

Fourth Judicial Region

MUNICPAL TRIAL COURT IN CITIES
Branch 02
City of Dasmariñas, Cavite

ROLLY A. BAUTISTA,
Plaintiff, CIVIL CASE NO. 4469-23
FOR: Ejectment /
Unlawful Detainer,
Rent, and Attorney’s
Fees
-versus-

EMMA GONZALES, and

ALL OTHER PERSONS CLAIMING
RIGHTS UNDER HER,
Defendants.
x------------------------------------------------x

POSITION PAPER
(FOR THE DEFENDANTS)

DEFENDANTS, through counsel, to the Honorable Court,

respectfully submit this Position Paper in support of the arguments
in the Answer and the documentary evidence attached therewith,
thus:

TIMELINESS

On 07 March 2024, the Defendants thru counsel and via

electronic mail received an Order from this Honorable Court
requiring the parties to file their respective Position Paper together
with affidavits of their witnesses and other evidence within ten
(10) days from receipt thereof or on or before 17 March
2024. Considering 17 March 2024 falls on a Sunday, the defendant
has until 18 March 2024 to file, hence said Position Paper is filed.

PARTIES

1. Defendant EMMA GONZALES ("Emma") is a Filipino, of legal

age, and currently residing at Block 5 Lot 2, St. Peter I,
Dasmariñas, Cavite, where she may be served with summons,
notices, orders, pleadings, motions and other processes.
2. Plaintiff ROLLY A. BAUTISTA ("Rolly"), is a Filipino, of legal
age, and a resident of Block 12 Lot 10, St. Peter I,
Dasmariñas, Cavite. He may be served with summons,
notices, orders, pleadings, motions and other processes
through her counsel at Atty. Roi Andrei S. Galang at Block 81
Lot 9B Phase 3, Cityhomes Resortville I, Langkaan II,
Dasmarinas, Cavite, to whom this case was referred by the
Integrated Bar of the Philippines (IBP) Cavite Chapter Office of
Legal Aid.

STATEMENT OF FACTS

3. Defendants currently resides in the disputed property with

improvements, located at Block 5, Lot 2, St. Peter I,
Dasmariñas, Cavite. The subject property is covered by
Transfer Certificate of Title (TCT) No. T-1057212 under the
name of Spouses Leonardo V. Cuevas and Pilar Antonio,
although the annotations states no improvements therein;

4. The Plaintiff is the son of Aniano Bautista, Emma’s deceased

common law partner and alleges to be the lawful owner of the
subject property by virtue of a Deed of Sale executed on 23
March 2004;

5. Emma and her daughter, who is the Plaintiff’s half-sister,

Mariel Bautista moved in with Aniano Bautista in the subject
property back in 2012 and she avers that her partner then
and until his death in September 2021, maintained that the
subject property was owned by him;

6. With the honest belief that the property was indeed owned by
her partner from his retirement benefits as police officer,
Emma constituted their family home in the subject property
and introduced improvements, repairs and maintenance;

7. After the death of her partner and in a sudden turn of events,

Rolly demanded that they vacate the property and sent them a
letter dated 10 August 2022 but she refused as they believe
that they are the owners;

8. Subsequently, Rolly filed a complaint with the Punong

Barangay of St. Peter I, Dasmariñas, Cavite for conciliation
purposes but no settlement was reached therein. Thus, he
filed the instant case for unlawful detainer or ejectment
against Emma.

ISSUES
 I. Whether the Plaintiff has cause of action against the
Defendants.

II. Whether the Plaintiff has a valid title and right of possession
over the subject property.

III. Whether the Defendants occupation is by mere tolerance.

IV. Whether the Defendants are builders in good faith.

ARGUMENTS

I. The plaintiff has no cause of action against the defendant on

the following grounds:
a. The Plaintiff failed to establish a valid title and right of
possession over the subject property.
b. The Plaintiff has no evidence that the Defendant’s
occupation is by mere tolerance.
II. The Defendants are builders in good faith.

DISCUSSION.
NATURE OF AN ACTION FOR EJECTMENT

Section 1, Rule 70 of the Rules of Court provides:

Section 1. Who may institute proceedings, and when.-

Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the
possession of any land or building is withheld after the
expiration or termination of the right to hold possession, by
virtue of any contract, expressed or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one (1) year
after such unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court against
the person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming under them,
for the restitution of such possession, together with damages
and costs.

An accion interdictal or summary ejectment case, as outlined in

Rule 70 of the Rules of Court, can be classified either as an
unlawful detainer or a forcible entry suit. These proceedings aim
to promptly return physical possession of land or a building to
the rightful owner who has been unlawfully or forcefully
deprived of it.

In Rivera vs. Velasco,1 the Court expounded on the rationale of the

action under the aforementioned rule by citing Drilon v. Gaurana, to
wit:

It must be stated that the purpose of an action of forcible

entry and detainer is that, regardless of the actual
condition of the title to the property, the party in
peaceable quiet possession shall not be turned out by
strong hand, violence or terror. In affording this remedy
of restitution the object of the statute is to prevent breaches
of the peace and criminal disorder which would ensue from
the withdrawal of the remedy, and the reasonable hope
such withdrawal would create that some advantage must
accrue to those persons who, believing themselves entitled
to the possession of property, resort to force to gain
possession rather than to some appropriate action in the
courts to assert their claims. This is the philosophy at the
foundation of all these actions of forcible entry and detainer
which are designed to compel the party out of possession to
respect and resort to the law alone to obtain what he claims
is his.

Case law poses the burden upon the Plaintiff to establish with
preponderance of evidence his case and in the present case, Rolly
has the burden of proving that he is entitled to possession and that
he was illegally deprived of said possession of the property which is
the subject of the instant case. In this regard, he has failed to
discharge the burden.

I. The Plaintiff has no cause of

action against the Defendant.

The Rules of Civil Procedure, as amended provides, under Section

2, Rule 2 for the definition of a cause of action, to wit:

Sec. 2. Cause of action, defined. – A cause of action is the

act or omission by which a party violates a right of another.

Its essential elements are as follows:

(1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created;
(2) an obligation on the part of the named defendant to respect
or not to violate such right; and
(3) an act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a breach of
the obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or other
appropriate relief.

1
G.R. No. 242837, October 5, 2022.
A complaint sufficiently alleges a cause of action for unlawful
detainer 2 if it states the following:

(a) Initially, the possession of the property by the defendant

was by contract with or by tolerance of the plaintiff;

(b) Eventually, such possession became illegal upon notice by

the plaintiff to the defendant about the termination of the
latter's right of possession;

(c) Thereafter, the defendant remained in possession of the

property and deprived the plaintiff of its enjoyment; and

(d) Within one year from the making of the last demand to
vacate the property on the defendant, the plaintiff instituted
the complaint for ejectment.

The requirement in establishing a valid cause of action in the

instant case as the Court held in several cases, is that the basis for
the lawful possession must be established with preponderance of
evidence and in the same manner, such possession has become
unlawful.

a. The Plaintiff failed to establish a valid

title and right of possession over the
subject property.

In the instant case, the Plaintiff basis his right of possession over
the subject property in a Deed of Sale dated 23 March 2004
allegedly executed between him and the original owners, the
Spouses Leonardo V. Cuevas and Pilar Antonio and that by mere
act of tolerance and owing to Emma’s relationship with his father,
he allowed them to reside in the subject lot.

However, a careful perusal of the said document reveals several

irregularities therein such as:
1. There are no names and signatures of the witnesses;
2. The competent evidence of identity of the parties were not
indicated by the notary public; and
3. There appears no mark of the notary public’s dry seal on the
deed of sale.

Aside from the defective Deed of Sale, Rolly failed to adduce

evidence of his right to possession over the subject property and
even assuming arguendo that the same is valid, possession de facto
must still be proved. Additionally, Emma cannot be bound by the
contents of the documents as she is not a party to the purported

2
De Guzman-Fuerte v. Spouses Estomo, G.R. No. 223399, April 23, 2018.
Deed of Sale. Section 51 of P. D. 1529, otherwise known as the
“Property Registration Decree” which states:

Section 51. Conveyance and other dealings by registered

owner.
xxx But no deed, xxx shall take effect as a conveyance
or bind the land, but shall operate only as a contract
between the parties and as evidence of authority to the
Register of Deeds to make registration.

The act of registration shall be the operative act to

convey or affect the land insofar as third persons are
concerned, and in all cases under this Decree, the
registration shall be made in the office of the Register of
Deeds for the province or city where the land lies.

As a rule, a claim of ownership cannot be invoked with respect to

third persons who is not a party to the contract. Neither can Emma
be bound by said deed as she has no sufficient personal knowledge
to attest to its genuineness and due execution being a third person
not privy to such agreement. Thus, there being no valid and binding
deed in this case, Rolly has no right of possession over the subject
property and ergo no right to exclude Emma from possession of the
same nor does he have right to demand that she vacate the subject
property.

b. The Plaintiff has no evidence that the

Defendant’s occupation is by mere
tolerance.

Allegations that the defendant’s occupation of the subject property

is merely by act of tolerance of the Plaintiff being an essential
element of the case for unlawful detainer or ejectment, warrants
that the same be established by preponderance of evidence.

As a rule, permission or tolerance must be present at the outset or

at the beginning of the possession. Likewise, they must be proven
with certainty as bare allegations of tolerance will not suffice. The
plaintiff must, at least, show overt acts indicative of his or his
predecessor's permission to occupy the subject property.3

In the case of Sarona v. Villegas, 4 the Court, citing the opinion of

Professor Tolentino defined tolerance as:

Acts merely tolerated are "those which by reason

of neighborliness or familiarity, the owner of
property allows his neighbor or another person
to do on the property; they are generally those
3
Carbonilla v. Abiera, G.R. No. 177637, July 26, 2010.
4
G.R. No. L-22984, March 27, 1968.
 particular services or benefits which one's
property can give to another without material
injury or prejudice to the owner who permits
them out of friendship or courtesy."

He adds that:"[t]hey are acts of little disturbances

which a person, in the interest of neighborliness or
friendly relations, permits others to do on his
property, such as passing over the land, tying a
horse therein, or getting some water from a well."

And, Tolentino continues, even though "this is

continued for a long time, no right will be acquired
by prescription." Further expounding on the
concept, Tolentino writes: "There is tacit consent
of the possessor to the acts which are merely
tolerated. Thus, not every case of knowledge
and silence on the part of the possessor can be
considered mere tolerance. By virtue of
tolerance that is considered as an
authorization, permission or license, acts of
possession are realized or performed. The
question reduces itself to the existence or non-
existence of the permission.”

From the foregoing, acts of tolerance are those which are not merely
inaction nor silence on the part of the persons asserting them but
positive overt acts constituting permission for the acts of the
persons in possession of the property. Likewise, acts of tolerance
must be proved exhibited by the plaintiff must be alleged with
specificity and adduced with evidence.

In the case Perez v. Rasaceña, 5 the Court held that:

Case law introduced the concept of possession by tolerance in

ejectment cases as follows — upon failure of the tenant to pay the stipulated
rents, the landlord might consider the contract broken and demand
immediate possession of the rented property, thus, converting a legal
possession into illegal possession. However, the landlord might choose to
give the tenant credit for the payment of the rents and allow him to continue
indefinitely in the possession of the property, such that during that period,
the tenant would not be in illegal possession of the property and the
landlord could not maintain an action of desahucio until after the latter had
taken steps to convert the legal possession into illegal possession.
As held in Canaynay v. Sarmiento:
. . . There is no legal obstacle for the owner to allow a defaulting
tenant to remain in the rented property one month, one year,
several years, or even decades. That consent, no matter how
long it may last, makes lawful tenant's possession. Only when
that consent is withdrawn and the owner demands tenant to

5
G.R. No. 211539, October 17, 2016.
 leave the property is the owner's right of possession asserted
and the tenant's refusal or failure to move out makes his
possession unlawful, because it is violative of the owner's
preferential right of possession.
We further elucidated the concept of possession by mere tolerance
in Calubayan, et al. v. Pascual, thus:

. . . 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 defendant's
possession and use of the premises. It has been held that a
person who occupies the land of another at the latter's 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. . . . .
xxx xxx xxx
Even assuming, for the sake of argument, that the
various notifications for defendant to see the plaintiffs could be
construed as demands upon the defendant to vacate, the
length of time that defendant detained the premises is to
be reckoned with from the date of the last demand.
Plaintiffs' failure to file an action in court shortly after
defendant had ignored their previous notices is to be
considered as a waiver on their part to eject the defendant
in the meantime.
xxx xxx xxx.

The Court rejected as an act of tolerance the silence and inaction of

the plaintiff after signing a Waiver of Transfer of Possessory Rights
in favor of the defendant over the disputed property, contending
that the silence and inaction were acts of negligence instead of
tolerance in this case. 6 In another case, an unsubstantiated claim
of consent to construct a bodega with light materials in the lot
owned by his father by reason of his friendship with the possessor
was likewise rejected by the Court as an act of tolerance. 7 Lack of
knowledge on the part of the plaintiff that the defendant was
occupying the property and built a house therein likewise was
rejected by the Court as the same could be contrary to human
experience as it is impossible to see a house on a land a person
supposedly owns and not questions its existence. 8

The Court provided that such acts of tolerance must precede the
possession of the defendant of the subject property, to wit: 9

A careful scrutiny of the records revealed that herein

respondent miserably failed to prove his claim that
petitioners' possession of the subject building was by mere

6
Lozano v. Fernandez, G.R. No. 212979, February 18, 2019.
7
Galacgac v. Bautista, G.R. No. 221384 (Resolution), November 9, 2020.
8
Go, Jr. v. Court of Appeals, G.R. No. 142276, August 14, 2001.

9
Carbonilla v. Abiera, supra.
 tolerance as alleged in the complaint. Tolerance must be
[present] right from the start of possession sought to be
recovered to be within the purview of unlawful detainer.
Mere tolerance always carries with it "permission" and not
merely silence or inaction for silence or inaction is
negligence, not tolerance.

In the instant case, there is practically no averment as to when and

how possession by tolerance of the defendants began nor where
there any allegation of the facts constitutive of the acts of tolerance
exhibited by Rolly. In his complaint, Rolly only made a general
claim with no evidence that he and Emma agreed that the latter’s
stay in the subject property after the death of his father is tolerated
under the condition that she help her redeem the property from the
mortgage encumbering it.

Additionally, there was no contract to speak of, whether expressed

or implied, between the Emma and Rolly nor are there any between
the original owner, the Spouses Cuevas and Emma which would be
evidence that her possession of the land was valid and therefore
qualifies the case for unlawful detainer. Neither did the Rolly allege
that Emma and his father took possession of the land through
force, intimidation, threat, strategy or stealth to make out a case of
forcible entry. Clearly, Rolly’s evidence is inadequate to substantiate
his claim against the Emma and therefore must fail.

II. The Defendant is a builder in “good

faith”.

When Emma constituted their family home in the subject property,

she was under the honest belief that the same was owned by her
partner, Aniano Bautista and over the course of them living in the
said property, she has introduced repair and improvements therein.

As provided in Article 527 of the Civil Code, good faith is always

presumed and it is incumbent upon the person who alleges bad
faith to prove the same with clear and convincing evidence. Anent to
this, the Court in the case of Sps. Espinoza vs. Sps. Mayandoc, 10
explained that to be deemed a builder in good faith, it is
essential that a person asserts title to the land on which he
builds, i.e., that he be a possessor in the concept of owner, and
that he be unaware that there exists in his title or mode of
acquisition any flaw which invalidates it.

Likewise, even assuming that Rolly has a valid title and right if
possession over the subject property, she cannot be ejected therein
without indemnity for the improvements she has introduced. This
contention finds it reliance under Article 448 of the Civil Code
which provides:

10
G.R. No. 211170, July 3, 2017.
 Article 448. The owner of the land on which anything has
been built, sown or planted in good faith, shall have the
right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided for in
Articles 546 and 548, or to oblige the one who built or planted
to pay the price of the land, and the one who sowed, the proper
rent. However, the builder or planter cannot be obliged to buy
the land if its value is considerably more than that of the
building or trees. In such case, he shall pay reasonable rent, if
the owner of the land does not choose to appropriate the
building or trees after proper indemnity. The parties shall agree
upon the terms of the lease and in case of disagreement, the
court shall fix the terms thereof.

In this case, Emma genuinely believed that the subject property

belonged to Aniano Bautista, partner and if indeed Rolly was the
true owner of the said property, he did not prevent them from
renovating and improving the property but instead was silent as
these renovations, were done gradually and visibly by Emma. It is
unlikely that he would have noticed such improvements as he lived
nearby. When Emma and her partner Aniano Bautista and their 18-
year-old child, Mariel Bautista, moved in around 2012, they
considered the property their family home and made investments
for its maintenance and improvement.

Therefore, as a good-faith builder, the Emma claims her right to

reimbursement and/or retention under the relevant articles of the
Civil Code.

PRAYER

WHEREFORE, on the basis of all the foregoing, it is

respectfully prayed that this position paper be given due
consideration in the resolution of this case and that judgment be
rendered in favor of the defendants by DISMISSING the complaint
for lack of cause of action and on the basis that the defendant is
a builder in good faith.

Other reliefs that are just and equitable under the premises
are likewise prayed for.

General Trias City, Cavite, March 16, 2024.

LYCEUM OFFICE OF THE LEGAL AID

Counsel for the Defendants
Ground Floor, JPL Building, Legal Aid, Lyceum of the Philippines
University, Governor’s Drive, Manggahan,
Gen. Trias City, Cavite
Contact Number/s: 0919-321-4148 | 0945-268-0061
Email Address: [email protected]
 By:

AILYN B. AÑANO
Law Student Practitioner
Lyceum of the Philippines University
DCA Luz-IV-2023-501
Contact Number: 0955-078-3441
Email Address: [email protected]

Under the supervision of:

ATTY. JAY DE GUZMAN

Blk 7 Lot 2, Russet St., Auburn Place,
Tabon I, Las Piñas City
Contact Number: 0915-639-4924
Email Address: [email protected]
Roll No.: 56050
PTR No.: 12699509J, Las Piñas, 01/31/2024
IBP No.: 354357, RSM, 07/07/2023
MCLE Compliance No.: VII-0028740, Valid until 04/14/2025

Copy Furnish:

ROLLY A. BAUTISTA
Block 12 Lot 10,
St. Peter I, Dasmariñas, Cavite

ATTY. ROI ANDREI S. GALANG

IBP - Cavite Chapter Office of Legal Aid
Block 81 Lot 9B Phase 3, Cityhomes Resortville I,
Langkaan II, Dasmarinas, Cavite
Republic of the Philippines )
Province of Cavite ) S.S.
City of __________________ )

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, EMMA BAUSTISTA, of legal age, Filipino citizen, with

residence and postal address at Block 5 Lot 2, St. Peter I,
Dasmariñas, Cavite after having duly sworn to in accordance with
law hereby depose and state:
1. That I am the Defendant in the above-entitled case;
2. That I caused the preparation of the foregoing pleading, and
the contents thereof are true and correct of my own
personal knowledge and based on authentic documents in
my possession;
3. That this complaint is not filed to harass or intimidate, cause
unnecessary delay, or needlessly increase the cost of
litigation;
4. And that I have not commenced any action or filed any claim
involving the same issues or matter in any court, tribunal
or quasi-judicial agency, and to the best of my knowledge,
no such action or claim is pending therein. Should it come
to my knowledge that a similar action is filed and pending
with the said courts, agency, or tribunal, I hereby
undertake to inform this Honorable Court within five (5)
days from knowledge of such fact.

IN WITNESS WHEREOF, I have hereunto affixed my signature

this March ___, 2024 at _____________________.

EMMA BAUTISTA
Affiant

SUBSCRIBED AND SWORN TO BEFORE ME this ___ day of

________ 2024, at _________________.

NOTARY PUBLIC
Doc. No.: ____;
Page No.: ____;
Book No.: ____;
Series of 2024.