Duano.accionPubliciana.complaint (1)

REPUBLIC OF THE PHILIPPINES National Capital Judicial Region REGIONAL TRIAL COURT Valenzuela City Branch ______ SPOUSES GREGORIO and TIFFANY DUANO, Plaintiffs,

-versus-

CIVIL CASE NO.______ For: Recovery of Possession with Damages

KMI Kapisanan Ng Mamamayang Ipit, AND ALL OTHER PERSONS CLAIMING POSSESSION UNDER IT, Defendants. x-----------------------------------------x COMPLAINT PLAINTIFFS SPOUSES GREGORIO AND TIFFANY DUANO (Plaintiffs Spouses for brevity), by counsel and unto this Honorable Court, most respectfully state, that: 1. Plaintiffs Spouses are both Filipinos, married, of legal ages and with residence and postal address at No. 423 Yakal Street, Midtown Executive Homes, United Nations Avenue, City of Manila, where they may be served with notices and other processes of the Court; 2. Defendant KMI Kapisanan ng Mamayang Ipit Inc. (defendant association for brevity), is a domestic association, duly organized and existing under and by virtue of the laws of the Philippines with principal 1

office at East Service Road, Lawang Bato, Valenzuela City (Subject Property for brevity), where it may be served with summons, notices and other processes of the Court; 3. Plaintiff Spouses are the legal and absolute owners of the aforesaid subject property, consisting of a total area of 3, 426.60 square meters, more or less, covered and described in Transfer Certificate of Title No. V-961841, having purchased the same from Metropolitan Bank & Trust Company on April 13, 2012, as evidenced by a duly executed and notarized Deed of Absolute Sale2. The assessed value of the property is TWO MILLION FIVE HUNDRED SIXTY NINE THOUSAND NINE HUNDRED FIFTY PESOS (P 2,569,000.00), copy of the Certified True Copy of Tax Declaration is hereto attached. 4. Recognizing further Plaintiff Spouses’ ownership with concomitant right of possession over the Subject Property, Metropolitan Bank & Trust Company issued a Turn-Over letter dated April 16, 20123 in the former’s favor over the said Subject Property; 5. In April 2012, or immediately after the transfer of the Subject Property to plaintiffs Spouses, the latter discovered, upon ocular inspection thereon, that the same was being occupied by the herein named defendant association and is using the same as their principal office. In fact, members of the defendant association have built houses on the subject property and are using the same as their residence. At that instance, Plaintiff Spouses informed said defendants that they are the new owners of the Subject Property;

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Copy is hereto attached as “ANNEXES A to A-1”

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Copy is hereto attached as “ANNEXES B, B-1, B-2”

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Copy is hereto attached as “ANNEX C” 2

6. On 26 September 2012 Plaintiffs Spouses apprised said defendants that they will have to repossess the Subject Property as they are in dire need to utilize the same for the benefit of their family, thus they demanded defendant to turn-over possession of the same. Defendant, however, chose to ignore Plaintiffs Spouses; 7. Thus, on 26 September 2012, Plaintiffs Spouses initiated a complaint against said defendants before Purok 1, Zone 3, Barangay 12, Lawang Bato, Valenzuela City. There being no amicable settlement having been arrived at during the Barangay conciliation despite series of hearings thereon, a Pagpapatunay Upang Makapagsampa Ng Usapin4 was issued on 06 November 2012; 8. Plaintiffs Spouses also sent Defendant a Letter dated 01 December 20125, addressed to its President Irene Manalangkay and to the members of the Defendant which was duly received on 11 December 20126 formally demanding them in writing to vacate the Subject Property. Despite due receipt of said Notice the Defendant unlawfully refused and still continuously refuse to immediately vacate and peacefully turn-over possession of the Subject Property to Plaintiffs Spouses, to the latter’s continuing detriment and prejudice; 9. The controversy reached the City Government of Valenzuela and prevailed upon the parties to further explore the possibility of an amicable settlement on the matter. Exploratory discussions have had between the parties upon the intervention of the City Government of Valenzuela, through the Office of the City Mayor, but 4

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Copy is hereto attached as “ANNEX D”

Copy is hereto attached as “ANNEX E.”

Copies of the Registry Receipt dated 03 December 2012 and the front and dorsal portions of the Registry Return Card are hereto attached as “ANNEX F” and “ANNEXES G to G-1, respectively 6

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which discussions, settlement;

ultimately

resulted

to

failed

10. Consequently, District 1, Zone 3, Barangay 12, Lawang Bato, Valenzuela, issued a Certification7, attesting to the failed settlement between the parties, the interventions of the City Government of Valenzuela for the parties to amicably settle the controversy and the renewal and reconfirmation of the authority to file action in court; 11. Hence, this Complaint; CAUSES OF ACTION A. ACCION PUBLICIANA

13. In the case of Vda. De Aguilar vs. Spouses Alfaro8, the Supreme Court discussed the nature and purpose of accion publiciana, thus: “Also known as accion plenaria de possession, accion publiciana is an ordinary civil proceeding to determine the better right of possession of realty independently of title. It refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. 14. “Accion Publiciana is the plenary action to recover the right of possession which should be brought when the dispossession lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of realty independently of title. In other words, if at the time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of possession or defendant’s 7

8

Copy is hereto attached as “ANNEX E” G.R. No. 164402 July 5, 2010

4

possession had become illegal, the action will be, not one of forcible entry or illegal detainer, but an accion publiciana.”9 1. Defendants’ possession by way of tolerance terminated when Plaintiffs Spouses apprised them of the latter’s need to repossess the Subject Property and demanded that they should accordingly turnover possession thereof to Plaintiffs Spouses: 14. Defendant’s possession of the Subject Property was initially tolerated by Plaintiffs Spouses, when, upon the latter’s inspection thereof in April 2012, immediately after its transfer of ownership to them by Metropolitan Bank & Trust Company, the Plaintiffs Spouses discovered that the same was being occupied by the herein defendant association and its members, as in fact, they have built structures and improvements thereon, and accordingly, introduced themselves as new owners thereof; 15. At that instance and for several months thereafter, said defendant enjoyed possession over the subject property by mere tolerance;

16. However, such possession by way of tolerance terminated when on 26 September 2012, Plaintiffs Spouses apprised them of their dire need to repossess the Subject Property and demanded that they should accordingly peacefully turn-over possession thereof to Plaintiff Spouses;

9

Civil Procedure (A Restatement for the Bar) Riano, p. 720. Citing the case of Valdez vs. Court of Appeals, G.R. No. 132424, May 2, 2006.

5

17.

In point is Roxas v. Court of Appeals, et.al. 10, viz: “It bears stressing that possession by tolerance is lawful but such possession becomes unlawful when the possessor by tolerance refuses to vacate upon demand made by the owner.”

18. Plaintiffs Spouses, being the true and absolute owners of the Subject Property, are clothed with rights to demand defendant to vacate the same; 19. Thus, said defendant’s possession by tolerance ceased to be as such and lawful when it unreasonably refused to vacate the same despite Plaintiffs Spouses’ demand in 26 September 2012 for it to immediately turnover possession thereof to them; 2. Notice is given to defendants to surrender possession of the Subject Property: 20. Plaintiffs Spouses sent defendant a Letter dated 01 December 201211, which it duly received on 11 December 2012,12 thru its President Irene Manalangkay demanding them to vacate the Subject Property; 21. Instead of heeding this lawful demand, and even after failed settlement during the mandatory Barangay conciliation proceedings and in the conferences at the City Government of Valenzuela, through the Office of the Mayor, defendant held on to the Subject Property. Hence, Plaintiffs Spouses were constrained to send another formal Notice of Final Demand to Vacate dated 05 September 2013.13 10

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G.R. No. 138955, October 29, 2002 Copy is hereto attached as “ANNEX E”

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Defendant duly received its respective copy of said Notice on 07 September 2013 thru its President Irene Manalangkay; 22. Despite repeated demands, however, defendant continued in their unlawful and unjustified deprivation of Plaintiffs Spouses’ possession of the Subject Property to the latter’s continuing damage and detriment; 3. Dispossession has lasted for more than one (1) year from the accrual of the cause of action or from the unlawful withholding of realty. 23. “Accion publiciana is the plenary action to recover the right of possession when dispossession has lasted for more than one year.”14 24. In the case of Vda. De Aguilar vs. Alfaro15, it was held that: “Also known as accion plenaria de possession, Accion Publiciana is an ordinary civil proceeding to determine the better right of possession of realty independently of title. It refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty.”

13

14

Heirs of Fernando Vinzons vs. Court of Appeals, et.al G.R. No. 111915, September 30, 1999 15

G.R. Mo. 164402, July 5, 2010.

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25. Applying the foregoing jurisprudential pronouncements in this case, the defendant’s possession of the subject property became unlawful when they received from Plaintiffs Spouses their formal letter of last demand to vacate the Subject Property and pay reasonable rental fees on 07 September 2013 and still refused and continues to refuse up until the filing of this complaint, to vacate the Subject Property and turn it over peacefully to the Plaintiffs Spouses. 26. Prescinding from above, the above-named defendant and all other persons claiming possession under it, should be ordered to peacefully, voluntarily and immediately VACATE the Subject Property and TURN-OVER the possession thereof to Plaintiffs Spouses; B. RENTAL FEES, INTERESTS, ATTORNEY’S FEES AND COSTS OF SUIT 27. Due to defendant’s obstinate and unlawful refusal to vacate the Subject Property, Plaintiffs Spouses have suffered and shall continue to suffer actual losses resulting from undue deprivation of the use and enjoyment of the economic viability of the property; 28. As such, the above-named defendant and all other persons claiming possession under it should be ordered to pay Plaintiff Spouses monthly rental fee in the amount of Three Thousand Pesos (Php 3,000.00) with interest at the prevailing legal rate, for the reasonable use of said property, to be computed from April 2012, until the above-named defendant and all persons claiming possession under them, peacefully vacate the Subject Property; 29. Since Plaintiffs Spouses were compelled to engage the services of a counsel to protect their interests and enforce their rights over the Subject Property, defendants should be adjudged to pay Plaintiffs Spouses attorney’s fees in the amount of TWENTY THOUSAND PESOS 8

(Php 20,000.00), appearance fee in the amount of THREE THOUSAND PESOS (Php 3,000.00) per hearing, plus costs of suit and litigation. PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that judgment be rendered in favor of Plaintiffs Spouses, as follows: 1. Ordering defendant and all persons claiming possession under it, to peacefully, voluntarily and immediately VACATE the Subject Property and TURNOVER possession thereof to Plaintiffs Spouses; 2. Ordering EACH defendant to pay Plaintiffs Spouses monthly rental fee in the amount of Three Thousand Pesos (Php 3,000.00), with interest at the prevailing legal rate, from April 2012, until the above-named defendant and all persons claiming possession under them to peacefully vacate the Subject Property; 3. Ordering defendants to pay Plaintiffs Spouses the amount of TWENTY THOUSAND PESOS (Php 20,000.00) as attorney’s fees and THREE THOUSAND PESOS (Php 3,000.00), as appearance fee per hearing; 4. Ordering defendants to pay Plaintiffs Spouses cost of suit and other litigation expenses. Other reliefs as are just and equitable under the premises are equally prayed for. Respectfully submitted. ____ day of ______ 2014, Valenzuela City, Philippines. CALOCHAN & ASSOCIATES (Counsel for the Spouses Plaintiffs) No.35 MacArthur Highway, Marulas, Valenzuela City

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By: ALFREDO B. CALOCHAN PTR No. VC 2744138; 17 Jan 14; Valenzuela City IBP 949747; 02 Jan14; Manila III MCLE Compliance No. IV-0011388 Roll No. 11746

REPUBLIC OF THE PHILIPPINES) CITY OF ____________________ ) S.S. VERIFICATION & CERTIFICATION OF NON-FORUM HOPPING WE, SPOUSES GREGORIO and TIFFANY DUANO, Filipinos, of legal age, with address located at No. 423 Yakal Street, Midtown Executive Homes, United Nations Avenue, City of Manila, after having been sworn to in accordance with law, hereby depose and state, that: 1. We are the Complainants in the above captioned case; 2 We have caused the filing and preparation of the foregoing Complaint which we have fully read and understood; 3. We hereby affirm that the factual allegations contained in the foregoing Complaint are true and correct based on my own personal knowledge and based on authentic documents and records; 4. That we have not commenced heretofore any other action or proceeding, or filed any claim involving the same issues in the Supreme Court, Court of Appeals, or any division thereof, or in any court, tribunal or agency. To the best of our knowledge, no such other action, proceeding, or claim is pending before the Supreme Court, Court of Appeals, or any division thereof, or in any court, tribunal, or agency; 5. If we should hereafter learn that a similar action, proceeding or claim has been filed or is pending before the Supreme Court, Court of Appeals, or any division thereof, or in any court, tribunal, or agency, I undertake to promptly inform this Honorable Court of the fact within five [5] days from notice thereof. Affiant further sayeth naught. 10

DONE THIS ____ day of___________________, in _________________, Philippines. GREGORIO DUANO Affiant

TIFFANY DUANO Affiant

SUBSCRIBED AND SWORN TO before me this ______ day of ______ , by affiants, who are both personally known to the undersigned and exhibited to me their competent proofs of identity written below their respective names.

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