Carbonilla vs. Abiera

An action for unlawful detainer based on mere tolerance requires proof that such tolerance was present from the very start of the defendant's possession; a bare allegation of tolerance without evidence of overt acts of permission is insufficient to establish jurisdiction.

Petitioner Dioscoro Carbonilla is the registered owner of a parcel of land in Maasin City, originally titled in his father's name. Respondents Marcelo Abiera and Maricris Abiera Paredes occupy a residential building on the land, claiming ownership by inheritance from their predecessors who possessed it since 1960 and remodeled it in 1977. Carbonilla demanded they vacate, claiming he acquired the building through a Deed of Extrajudicial Settlement from the Garcianos and that respondents' possession was by mere tolerance of the previous owners.

• Ownership of the Land: Petitioner is the registered owner of Lot No. 1781-B-P-3-B-2-B PSD-08-8452-D, Maasin Cadastre, covered by Transfer Certificate of Title (TCT) No. T-3784. The land was originally registered in 1968 in the name of petitioner's father under Original Certificate of Title No. 185.
• Claim over the Building: Petitioner claims ownership of the residential building on the land via a Deed of Extrajudicial Settlement of Estate (Residential Building) with Waiver and Quitclaim of Ownership executed by the heirs of Jovita Yanto Garciano on November 10, 2002.
• Respondents' Possession: Respondents occupy the building, asserting ownership by inheritance from Alfredo Abiera and Teodorica Capistrano—respondent Marcelo's parents and respondent Maricris' grandparents. Respondents maintained that their predecessors possessed the building since 1960 and remodeled it in 1977, securing a building permit from the Municipality of Maasin. Respondents also claimed inheritance of the land from Francisco Plasabas, supported by tax declarations predating World War II.
• Demand to Vacate: Petitioner sent a demand letter on November 20, 2002, requiring respondents to leave within 15 days so he could use the property as his residence. Respondents refused, and barangay conciliation failed.

• Right to Recover Possession: Petitioner argued that he sufficiently established his ownership of the subject properties and, consequently, the right to recover possession thereof from respondents.

• Ownership of the Building: Respondents countered that they occupied the building as owners, having inherited it from their predecessors who possessed it since 1960 and remodeled it in 1977.
• Ownership of the Land: Respondents claimed inheritance of the land from Francisco Plasabas, supported by a series of tax declarations.
• Non-Impleading of Necessary Parties: Respondents contended that the case should be dismissed for failure to implead respondent Marcelo's siblings, who are co-heirs of the subject properties.

• Unlawful Detainer: Whether petitioner is entitled to recover possession of the property via an action for unlawful detainer based on mere tolerance.
• Sufficiency of Evidence of Tolerance: Whether petitioner sufficiently proved that respondents' possession was by mere tolerance from the start.

• Unlawful Detainer: The complaint for unlawful detainer cannot prosper because the jurisdictional requirement of initially lawful possession by tolerance was not proven. While a registered owner is entitled to possession, the owner cannot simply wrest possession from actual occupants without resorting to the proper judicial remedy and satisfying its specific conditions. An ejectment case will not necessarily be decided in favor of a party with proof of ownership if the jurisdictional facts constitutive of the particular ejectment action are not averred and proven.
• Sufficiency of Evidence of Tolerance: Tolerance was not proved. The Deed of Extrajudicial Settlement from the Garcianos did not establish that the Garcianos owned the building or had the right to tolerate respondents' entry. No affidavits or overt acts of permission by petitioner or his predecessors were presented. Tolerance must be present from the very start of possession; mere silence or inaction constitutes negligence, not tolerance. Because the unlawful nature of the possession did not arise from the expiration of a tolerated right, the action for unlawful detainer was improper.

• Unlawful Detainer Based on Tolerance — In an unlawful detainer case based on tolerance, the plaintiff must prove that the defendant's possession was initially lawful and by tolerance of the plaintiff or predecessors-in-interest. Tolerance must be present from the start of possession; mere silence or inaction constitutes negligence, not tolerance. A bare allegation of tolerance without evidence of overt acts indicative of permission is insufficient to establish the action.
• Possession de facto vs. Possession de jure in Ejectment — Ejectment proceedings resolve only the issue of who is entitled to physical possession (possession de facto), not possession de jure. Proof of ownership does not automatically guarantee a favorable judgment in ejectment if the jurisdictional facts constitutive of the specific ejectment action are not averred and proven.

• "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."
• "Without a doubt, the registered owner of real property is entitled to its possession. However, the owner cannot simply wrest possession thereof from whoever is in actual occupation of the property. To recover possession, he must resort to the proper judicial remedy and, once he chooses what action to file, he is required to satisfy the conditions necessary for such action to prosper."

• Ten Forty Realty and Development Corporation v. Cruz — Cited by the CA and affirmed in categorizing the complaint as one for forcible entry or unlawful detainer.
• Go, Jr. v. Court of Appeals — Followed for the definition of ejectment cases as summary proceedings designed to protect actual possession or the right to possession.
• David v. Cordova — Followed for the rule that ejectment resolves only possession de facto and not de jure, and that questionable title does not necessarily preclude ejectment.
• Republic v. Luriz — Followed for the definition of unlawful detainer as the withholding of possession after the expiration or termination of the former's right to hold possession.
• Spouses Macasaet v. Spouses Macasaet — Followed for the requisite that possession in unlawful detainer must be originally lawful, and such possession turns unlawful only upon expiration of the right to possess.
• Valdez, Jr. v. Court of Appeals — Followed for the rule that tolerance must be present from the start of possession; otherwise, unlawful detainer is an improper remedy.
• Asis v. Asis Vda. de Guevarra — Followed for the principle that a pronouncement on ownership in an ejectment case is merely provisional and does not bar or prejudice an action between the same parties involving title.

• Art. 546, Civil Code — Allows the possessor in good faith to retain the property until reimbursed for necessary expenses. Applied by the MTCC to declare respondents as possessors in good faith entitled to retain the building.
• Art. 445, Civil Code — Provides that whatever is built, planted, or sown on the land of another belongs to the owner of the land. Applied by the RTC to theorize that petitioner, as landowner, would own the building standing thereon, but ultimately did not overcome the jurisdictional defect of the ejectment suit.

Antonio T. Carpio (Chairperson), Diosdado M. Peralta, Roberto A. Abad, Jose Catral Mendoza.