Dayandayan vs. Spouses Rojas

In an action for unlawful detainer based on tolerance, the plaintiff must clearly and distinctly prove by a preponderance of evidence an overt act signifying permission or tolerance, which must precede the defendant's entry into the property; a bare claim of tolerance is insufficient.

Spouses Eduardo P. Rojas and Enriquita A. Rojas acquired Lot No. 635 in Marvel Isabel, Leyte, from Generoso and Julieta Pinar through a Deed of Sale executed on March 9, 1997. Petitioners Teresita Dayandayan, Clara Talle, and their relatives had built houses in the area, claiming they had been residing there since 1983 and 1984, and that the municipal government relocated some of their structures to the area in 1990. The respondents claimed they allowed the petitioners to stay out of compassion, with the promise that they would vacate upon demand.

Spouses Eduardo P. Rojas and Enriquita A. Rojas acquired Lot No. 635 in Marvel Isabel, Leyte, from Generoso and Julieta Pinar through a Deed of Sale executed on March 9, 1997. According to the respondents, petitioners Clara Talle and Teresita Dayandayan asked permission to construct their houses on a portion of the property, promising to vacate upon demand. Out of compassion, the respondents allowed them to stay rent-free. Eventually, Talle's and Dayandayan's relatives, Yolly Laguna, the Spouses Rios, and the Spouses Bignay, also stayed on the property.

In January 2009, the respondents asked the petitioners to vacate, and reiterated the demand on February 8, 2009. When the petitioners refused, the respondents filed a Complaint for Unlawful Detainer before the Municipal Circuit Trial Court (MCTC) on April 17, 2009.

The petitioners countered that their houses stood on government property outside the respondents' lot, pointing out that Pinar's lot was only 306 square meters. They claimed that Talle and her husband built a house in the foreshore area in 1983, while Dayandayan and her late husband built a house along the pier in 1984. In 1990, the municipal government reclaimed the foreshore area and relocated Dayandayan's house near Talle's at the back of the public market. The petitioners' affidavits and those of disinterested persons confirmed they had been residing in the area since 1983 and 1984, well before the respondents purchased the property in 1997.

The MCTC ruled in favor of the respondents, but the RTC reversed, finding it improbable that the petitioners asked permission from the respondents to construct their houses in 1997, given that they had been residing there earlier. The RTC clarified that the dismissal was for lack of evidence of tolerance. The CA, however, reversed the RTC and reinstated the MCTC decision, prompting the petitioners to elevate the case to the Supreme Court.

• Failure to Prove Tolerance: Petitioners argued that respondents failed to prove the fact of tolerance, maintaining that it was impossible for respondents to have tolerated their stay since they had been residing there long before respondents purchased the property in 1997.
• No Contract: Petitioners maintained that they did not have any contract, express or implied, with the respondents or the latter's predecessors-in-interest.
• Self-Serving Claim: Petitioners argued that respondents' claim of tolerance was merely based on a self-serving affidavit, and respondents failed to present a joint affidavit from the Pinar spouses.
• Proper Party: Alternatively, petitioners urged that the Municipality of Isabel, Leyte, was the proper party, as it ordered their relocation to the subject lot.

• Due Process: Respondents argued that the issue of tolerance was not raised before the MCTC but was belatedly raised on appeal, and ruling on it would violate their right to due process.
• Sufficient Proof of Tolerance: Respondents asserted that they sufficiently proved the fact of tolerance.
• Ownership of the Area: Respondents insisted that the area where the petitioners' shanties were built belonged to them, not the municipality, citing the Commissioner's Report and Tax Declaration classifying the lot as residential.
• Entitlement to Possession: Respondents maintained that as the owners of the subject property, they are entitled to its possession.
• Failure to Prove Prior Possession: Respondents averred that the petitioners failed to prove their claim that their houses existed on the property prior to the respondents' acquisition.

• Tolerance in Unlawful Detainer: Whether the respondents sufficiently alleged and proved the fact of tolerance to sustain an action for unlawful detainer.
• Timeliness of the Issue: Whether the failure to raise the issue of tolerance before the MCTC bars the court from ruling on the matter.

• Tolerance in Unlawful Detainer: No. The respondents failed to prove by a preponderance of evidence an overt act signifying tolerance of the petitioners' stay, as the petitioners had been residing in the property long before the respondents acquired it.
• Timeliness of the Issue: No. The failure to raise the issue of tolerance earlier does not bar the court from ruling on it, as tolerance is a key jurisdictional fact in unlawful detainer that the court must resolve.

• Tolerance in Unlawful Detainer: In an action for unlawful detainer, the fact of permission or tolerance is a key jurisdictional element that must be alleged and proven. The respondents' claim of tolerance was based on vague, self-serving statements without specific details on how and when the petitioners entered the property or when permission was given. The respondents' own Deed of Sale showed they acquired the property on March 9, 1997, while the petitioners' evidence, including affidavits of disinterested persons, confirmed they had been residing in the area since 1983 and 1984. Because the petitioners' entry preceded the respondents' acquisition, it negated the respondents' claim that the petitioners asked permission to build a house and that their stay was tolerated. A bare claim of tolerance is insufficient; there must be clear proof of an overt act signifying permission that preceded the deforciant's entry.
• Timeliness of the Issue: The respondents themselves introduced the fact of tolerance in their complaint before the MCTC, stating they tolerated the petitioners' stay out of compassion. Thus, they cannot dodge an issue they themselves introduced. Furthermore, tolerance is a key jurisdictional fact in an action for unlawful detainer, such that the case cannot be resolved without passing upon it, regardless of when the issue was explicitly raised.

• Unlawful Detainer Based on Tolerance — In an action for unlawful detainer, the plaintiff must allege and prove that: (i) initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff; (ii) eventually, such possession became illegal upon notice by the plaintiff to the defendant of the termination of the latter's right of possession; (iii) thereafter, the defendant remained in possession and deprived the plaintiff of enjoyment thereof; and (iv) within one year from the last demand, the plaintiff instituted the complaint. Tolerance must be present at the outset of the possession and must be proven clearly and distinctly through positive acts, not merely silence or inaction. A bare claim of tolerance will not suffice.
• Right of Owner to Recover Possession — While the right to possession is an attribute of ownership, ownership alone does not grant the owner an unbridled authority to wrest possession from a lawful occupant through a summary action for ejectment. The owner must avail of the proper judicial remedy (accion reivindicatoria, accion publiciana, or accion interdictal) and satisfy all necessary conditions.

• "In all actions for unlawful detainer, the fact of permission or tolerance serves as a key jurisdictional element." — This establishes the necessity of proving tolerance as a jurisdictional fact in unlawful detainer cases.
• "Tolerance always carries with it 'permission' and not merely silence or inaction for silence or inaction is negligence, not tolerance." — This defines the concept of tolerance, distinguishing it from mere passivity or neglect to file an action.
• "Allegations are not evidence and without evidence, bare allegations do not prove facts." — This underscores the evidentiary burden on the plaintiff to prove tolerance by a preponderance of evidence, not just by self-serving assertions.

• Sarona vs. Villegas — Defined "tolerance" and established the rule that tolerance must be present right from the start of possession to categorize a cause of action as unlawful detainer.
• Javelosa vs. Tapus — Emphasized that an owner cannot conveniently usurp possession without availing of the proper remedy and proving the essential requisites of unlawful detainer, particularly tolerance.
• Jose vs. Alfuerto — Held that the failure to raise the issue of tolerance earlier does not bar the court from ruling on it, as it is a jurisdictional fact.
• Sabellina vs. Buray — Rejected the plaintiff's general and self-serving averments of tolerance, affirming that allegations are not evidence.

• Article 428, Civil Code — Grants the owner of real property the right to enjoy and dispose of a thing, and to file an action against the holder and possessor to recover it. The Court noted that while this gives the owner the right to recover possession, it does not allow wresting possession from a lawful occupant without the proper judicial remedy.

Leonen (Chairperson), Gesmundo, Carandang, and Zalameda, JJ., concur.