Court: Claimant of lots ‘tolerated’ occupants-A A +A
Friday, March 7, 2014
THE Municipal Trial Court in Cities (MTCC) Branch 6 ruled that Aletha Suico-Magat “tolerated” the families occupying the lots in Barangay Apas, Cebu City where a demolition is being conducted.
This act of tolerance on the part of Magat was the basis for MTCC Branch 6 Judge Pamela Baring-Uy to rule 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.”
If the residents fail to heed the demand to vacate the lot, the owner can resort to filing an ejectment case, Uy said in her September 2013 order.
An ejectment case is a summary procedure where the court will only require parties to the case to submit affidavits.
But lawyer Benjamin Military, counsel of the more than 30 families who are the subject of court’s demolition order, said there was no evidence of Magat’s
Magat filed an ejectment case against 157 families occupying lots 942 and 947 in Sitio San Miguel, Barangay Apas.
The Supreme Court ordered the Mactan Cebu International Airport Authority in 2011 to return the lots to Magat’s family (the Suicos) as it was no longer used as an aviation facility. The lots were expropriated to be used for the Lahug Airport.
Militar said that the MTCC “just concluded that it (tolerance) existed without citing proof or why.”
For tolerance to be validated, he said, the residents must know the owner. The owner must also tell the residents to vacate if she wants to use her property.
Uy said Magat and her predecessors-in-interest “substantiated” their allegation that they tolerated the occupants.
“(Magat) allowed and tolerated defendants to stay in the said properties, free of rentals, as she and her other co-owners are not yet in need of the use of the said properties,” said Uy.
Uy also ruled that the nature of the ejectment case filed by Magat is “one for unlawful detainer and not forcible entry.”
Unlawful detainer is the act of retaining possession of property without legal right.
Militar said that most of the residents who have occupied lots 942 and 947 for more than 50 years did not know the owner.
“They don't know who is the owner from the beginning of their residency,” he said in an interview.
Militar cited a Supreme Court decision that states: “To justify an action for unlawful detainer, it is essential that the plaintiff’s (the claimant) supposed acts of tolerance must have been present right from the start of the possession, which is later sought to be recovered. Otherwise, if the possession was unlawful from the start, an action for unlawful detainer would be an improper remedy.”
In his motion to suspend the writ of demolition, Militar said Uy's decision was “worse because it merely accepted the fact of tolerance without proof.”
Militar also said MTCC Branch 6 has no jurisdiction over the case because the families have been occupying the lots for more than 50 years. He added that the claimant should have made a move against the families within one year of their occupancy.
A plenary action for possession should have been filed by Magat before the Regional Trial Court (RTC), he said.
Militar also filed a motion before RTC Branch 9, asking Judge Alexander Acosta to reconsider his order denying a motion to prevent MTCC Branch 6 sheriff Edilberto Suarin from implementing the writ of demolition.
The judge ruled he did not have jurisdiction over the MTCC sheriff.
But Militar said the RTC has jurisdiction over Suarin because the case is on appeal. (KAL/Sun.Star Cebu)
Published in the Sun.Star Cebu newspaper on March 07, 2014.