Prescription Distinguished From Laches Prescription Laches
Prescription Distinguished From Laches Prescription Laches
Prescription Distinguished From Laches Prescription Laches
PRESCRIPTION LACHES
PRESCRIPTION, GENERALLY.
By prescription, one acquires
ownership and other real rights
through the lapse of time in the manner and under the action laid
down by law
All things within the commerce of men are susceptible of
prescription, unless otherwise
provided
Acquisitive prescription—ordinary or extraordinary
and with just title for the time fixed by law; possession of 10
years
Extraordinar prescription—
y uninterrupted adverse possession
whom he received the thing was the owner thereof, and he could
transmit his ownership
HOMESTEAD
PATENT
the Public Land Act governs dispositio
Chapter 4 of the n of
alienable public lands through
homestead
Any citizen of the Philippines over the age of 18 years, or the
head
of a family, may enter a homestead of not exceeding 12
hectares
of agricultural land of the public
domain
The applicant must have cultivated and improved at least
1/5 of
the land continuously since the approval of the application
and
resided for at least 1 year in the municipality in which the
land is
located, or in a municipality in which the land is located, or
in a
municipality adjacent to the same, and then, upon payment
of the
required fee, he shall be entitled to a
patent
FREE PATENT
Any natural born citizen of the Philippines who is the owner of
more than 12 hectares and who, for at least 30 years prior to the
effectivity of this amendatory Act, has continuously occupied and
cultivated, either by himself or through his predecessors-in-
interest a tract or tracts of agricultural public lands subject to
disposition, who shall have paid the real estate tax thereon while
the same hasn’t been occupied by any person shall be entitled,
under the provisions of this Chapter, to have a free patent issued
to him for such tract or tracts of such land not to exceed 12
hectares
PD 1073—apply only to A and D lands of the public domain which
have been in open, continuous, exclusive, and notorious
possession and occupation by the applicant himself or thru his
predecessors-in-interest, under a bona fide claim of
ownership
FORECLOSURE
> Remedy available to the mortgagee by which he subjects the mortgaged property to the
satisfaction of the obligation to secure which the mortgage was given
> Denotes a procedure adopted by the mortgagee to terminate the rights of the mortgagor on the
property and includes the sale itself
> The right to foreclose the mortgage and to have the property seized and sold with a view
to applying the proceeds to the payment of the principal obligation
> A mortgage contract may contain an acceleration clause—on occasion of the mortgagor’s
default, the whole sum remaining unpaid automatically becomes due and payable
> Essence of mortgage contract—property has been identified and separated from a
mass of the property of the mortgagor to secure the payment of a principal obligation
> Once the proceeds have been applied to the payment of the principal obligation, the
debtor cannot anymore be asked to pay unless there is deficiency
KINDS OF FORECLOSURE
1. Judicial
2. Extrajudicial
Section 1. Any provision of law to the contrary notwithstanding, private real property
may be mortgaged in favor of any individual, corporation, or association, but the mortgagee or his
successor in interest, if disqualified to acquire or hold lands of the public domain in the
Philippines, shall not take possession of the mortgaged property during the existence of the
mortgage and shall not
take possession of the mortgaged property except after default and for the sole
purpose of foreclosure, receivership, enforcement or other proceedings and in no case for a
period of more than 5 years from actual possession and shall not bid or take part in any sale of
such real property in case of foreclosure: Provided, that said mortgagee or successor in interest
may take possession of said property after default in accordance with the prescribed
judicial procedures for foreclosure and receivership and in no case exceeding 5 years
from actual
possession.
Section 2. All laws, orders, or regulations, or parts thereof inconsistent with the provisions of this
Act, are repealed or modified accordingly.
1. You can mortgage to a foreigner. RA 133 sanctions this. Ownership is not equivalent to
mortgage. Nonetheless, he can only institute judicial proceedings and not extrajudicially
foreclose the mortgage. Furthermore, he cannot bid or take part in the sale of the real property.
2. The foreigner may not take possession of the property during the mortgage. He could only
possess the same as a lessee.
3. The foreigner may only take possession of the mortgaged property after default, and for
the sole purpose of foreclosure, enforcement or other proceedings. This should not exceed
the period of 5 years from actual possession.
1. The mortgagee should file a petition for judicial foreclosure in the court which has jurisdiction over
the area where the property is situated
2. The court will conduct a trial. If, after trial, the court finds merit in the petition, it will render
judgment ordering the mortgagor/debtor to pay the obligation within a period not less than 90 nor
more than 120 days from the finality of judgment.
3. Within this 90 to 120 day period, the mortgagor has the chance to pay the obligation to
prevent his property from being sold. This is called the EQUITY OF REDEMPTION PERIOD.
4. If mortgagor fails to pay within the 90-120 days given to him by the court, the property shall be
sold to the highest bidder at public auction to satisfy the judgment.
5. There will be a judicial confirmation of the sale. After the confirmation of the sale, the purchaser
shall be entitled to the possession of the property, and all the rights of the mortgagor with
respect to the property are severed or terminated. The equity of redemption period actually
extends until the sale is confirmed. Even after the lapse of the 90 to 120 day period, the mortgagor
can still redeem the property, so long as there has been no confirmation of the sale yet. Therefore,
the equity of redemption can be
considered as the right of the mortgagor to redeem the property BEFORE the confirmation of
the sale.
a. After the confirmation of the sale, the mortgagor does not have a right to redeem the
property anymore. This is the general rule in judicial foreclosures – there is no right of
redemption after the sale is confirmed.
1. Judicial foreclosure is costly, since the parties would need to hire lawyers. But then again, the
present rules provide that court fees are needed to be paid in extrajudicial proceedings also.
2. The parties have very little control over the sale because there is court intervention.
3. More susceptible to stalling/dilatory tactics by the mortgagor, since he can file all sorts of
motions in court to prevent the sale.
4. It is more efficient to have extrajudicial proceedings since for judicial proceedings, there is a
minimum lapse of time of 6 years.
EXTRAJUDICIAL FORECLOSURE
> Sale cannot be made legally outside the city or province wherein the property sold is
situated. In case the place has been stipulated, it shall be made in the municipal building of
the said place
NOTICE OF THE SALE
1. POSTING of the notices of the sale FOR NOT LESS THAN 20 DAYS in at least 3 public
places of the municipality or city where the property is situated
2. IF THE PROPERTY IS WORTH MORE THAN P400, such notice shall also be published once
a week at least 3 consecutive weeks in a newspaper of general circulation in the municipality or
city. (You don't need to count 6 days between publications.)
NOTE: there is jurisprudence, which held that there is sufficient notice when there is
publication.
PUBLIC AUCTION/SALE
1. Time shall be between 9AM and 4PM. It shall be made in the direction of the sheriff of the
province, the justice or auxiliary justice of the peace of the municipality, or of the notary public
of the municipality, who shall be compensated with P5 for each day of actual work or
performance in addition to his expenses.
2. Anyone may bid at the sale, unless there are stipulations in the agreement.
POSSESSION
> Upon foreclosure, if the mortgagor is in possession of the property, he will retain possession
during the redemption period—1 year from the date of sale
> If the winning bidder wants possession during the redemption period, he may execute a
bond in the amount equivalent to the use of the property for 12 months, to indemnify the
debtor in case it be shown that the sale was made without violating the mortgage or without
complying with the requirements of the Act. Upon approval, a writ of possession will be issued in his
favor.
> If the winning bidder is able to secure possession, the mortgagor may petition that the sale
is set aside and the writ of possession be cancelled on the ground that he wasn't in default
or that the sale wasn't made in accordance with Act 3135. This must be filed within 30
days from issuance of the writ of possession.
RIGHT OF REDEMPTION
> The debtor, his successors-in-interest, or any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property subsequent to the mortgage or deed of trust
under which the property is sold, may redeem the same at any time WITHIN THE TERM OF
1 YEAR FROM AND AFTER THE DATE OF THE SALE and such will be governed by the Rules of Court
> When the property is redeemed after the purchaser has been given possession, the redeemer
is entitled to deduct from the price of redemption any rentals that said purchaser may have
collected in case the property or any part thereof was rented. If the property was used as his own
dwelling, it being town property, or used it gainfully, it being rural property, the redeemer may
deduct from the
price the interest of 1% per month provided in the Rules of Court.
RULES OF COURT, RULE 39, SECTIONS 29 TO 31, AND 35
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on redemption made. If the judgment obligor redeems,
he must make the same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be allowed and he is restored to his
estate. The person to whom the
redemption payment is made must execute and deliver to him a certificate of redemption
acknowledged before a notary public or other officer authorized to take acknowledgments of
conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of
the place in which the property is situated, and the registrar of deeds must note the record thereof on
the margin of the record of the certificate of sale. The payments mentioned in this and the last
preceding sections may be made to the purchaser r redemptioner, or for him to the officer who made
the sale.
Sec. 47. Foreclosure of Real Estate Mortgage. - In the event of foreclosure, whether judicially
or extra-judicially, of any mortgage on real estate which is security for any loan or other
credit accommodation granted, the mortgagor or debtor whose real property has been sold
for the full or partial payment of his obligation shall have the right within one year after the sale
of the real estate, to redeem the property by paying the amount due under the mortgage deed,
with interest thereon at rate specified in the mortgage, and all the costs and expenses incurred by the
bank or institution from the sale and custody of said property less the income derived therefrom.
However, the purchaser at the auction sale concerned whether in a judicial or extra-judicial
foreclosure shall have the right to enter upon and take possession of such property
immediately after the date of the confirmation of the auction sale and administer the same in
accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure
proceedings instituted pursuant to this provision shall be given due
course only upon the filing by the petitioner of a bond in an amount fixed by the court
conditioned that he will pay all the damages which the bank may suffer by the enjoining or
the
restraint of the foreclosure proceeding.
Notwithstanding Act 3135, juridical persons whose property is being sold pursuant to an
extrajudicial foreclosure, shall have the right to redeem the property in accordance with this
provision
until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of
Deeds which in no case shall be more than three (3) months after foreclosure, whichever is earlier.
Owners of property that has been sold in a foreclosure sale prior to the effectivity of this Act shall
retain their redemption rights until their expiration.
NOTES:
1. For judicial foreclosure, the redemption period is within one year. For extrajudicial, its
90 days from sale or registration.
2. The purpose is to give concession to the banks. Banks cannot get properties mortgaged
by those in financial distress.
3. The redemption price would be the mortgaged obligation plus the interest as stipulated in
the original obligation. Compare this with judicial foreclosure wherein the redemption price
is the original price. In this case, you have to pay more when redeeming from a bank.
4. There is immediate possession
5. A motion to enjoin would not be entertained unless secured by a bond.
6. Court will fix the amount of the bond. Normally, this would be the liability of the bank
plus costs. This remedied the loopholes in Act 3135—protect the bank during foreclosures.
This makes it hard to secure injunctions and it shortens the redemption period.
The action to quiet title, or remove clouds from title, to real estate, is a well-established remedy in
American law. It has for its purpose the quieting of title or removal of a cloud therefrom when there is
an apparently valid or effective instrument or other claim which in reality is void, ineffective, voidable
or unenforceable.[1]
In the Philippines, Article 476 of the New Civil Code provides the substantive law on the matter, while
Rule 63 of the Rules of Court provides for the procedure in bringing an action to quiet title, or to
claim over a property? And, can one, in the same quiet title suit, ask for reconveyance of title, or, for
settlement of a boundary?
A quiet title action, or an action to remove cloud on title, is a remedy which originated in the courts of
equity. Such proceedings have for their purpose an adjudication that a claim of title to or an interest
in property, adverse to that of the claimant, is invalid, with the result that the claimant and those
claiming under him may forever be free from danger of the hostile claim.[2]
The basis of equitable relief for removal of a cloud in title is the principle that, because of the
inadequacy of the remedy at law, a deed or other instrument or proceedings constituting the cloud
may not be used injuriously or vexatiously to embarrass or affect the title of a plaintiff in
possession.[3] Stated differently, such remedy was developed by courts of equity, to prevent
invasion of property rights. Suits to quiet or remove a cloud from title developed from what were
anciently termed “bills quia timet” or “bills of peace”, remedies which originated in and appertained to
Article 476 and 478 of the New Civil Code provide that, “whenever there is a cloud on title to real
property or any interest therein, by reason of any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective,
voidable, or unenforceable,” or “has been extinguished or has terminated, or has been barred by
extinctive prescription”, “and may be prejudicial to said title, an action may be brought to remove
Article 477 of the same Code provides that, the party who may bring an action to quiet title “must
have legal or equitable title to, or interest in the real property which is the subject matter of the
action.”
Thus, for an action to quiet title to prosper, two (2) indispensable requisites must concur, namely: (1)
the plaintiff or complainant has a legal or an equitable title to or interest in the real property subject of
action, and (2) the deed, claim, encumbrance or proceeding claimed to be casting cloud on his title
must be shown to be in fact invalid or inoperative despite its prima facie appearance of validity or
legal efficacy.
To reiterate, the ground or reason for filing a complaint for quieting of title must be “an instrument,
record, claim, encumbrance or proceeding.” Thus, under recent laws and rules, and pursuant to the
maxim expresio mius est exclusio alterius, these grounds are EXCLUSIVE so that other reasons
outside of the purview of these reasons may not be considered valid for the same action.[5]
At present, the rule is, a quieting title action cannot be availed of for settling boundary disputes.[6]
Thus, in a situation where a party files an action against current possessors of a property he is
claiming, the proper action to be filed is not a quieting title action, but an action for ejectment.
Indeed, there is no instrument, record, claim, encumbrance or proceeding the existence of which
clouds the title of the landowner over the accretion or alluvion.[7] The subject matter in this situation
is merely the physical or material possession or possession de facto over the property.[8]
But, can the landowner seek a declaration of his ownership over the property in the same ejectment
case? The answer, of course, is, he cannot, as, after all, in ejectment cases, the questions to be
resolved simply are these: First, who had actual possession over the piece of real property? Second,
was the possessor ousted therefrom within one year from the filing of the complaint by force, threat,
strategy, or stealth? And lastly, does he ask for the restoration of his possession? Any controversy
over ownership rights should be settled after the party who had the prior, peaceful and actual
Now, if the situation is, the party wants to file an action against current possessors and/or registered
owners of the property he is claiming, an ejectment case will of course not suffice. There must be a
separate action for him to be able to enforce his legal title over the property.
But then again, is an action for reconveyance the proper remedy, and not a quieting title action? And,
in a situation where the person already filed an action to quiet title, is there a need for him to
An action for reconveyance is one that seeks to transfer property, wrongfully registered by another, to
its rightful and legal owner. Reconveyance is an action distinct from an action for quieting of title,
which is filed whenever there is a cloud on title to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is
in truth and in fact, invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title
To be sure, in several cases, the Supreme Court has allowed the treatment or characterization of an
action for reconveyance as an action to quiet title.[11] The question, however, is, in like manner, can
an action to quiet title be treated or characterized as an action for reconveyance, or even an action to
settle boundary disputes, so as to eliminate the need to file another action to enforce ownership or
It is the considered view that, the higher and nobler purpose of avoiding multiplicity of suits and
prevention of litigation must be taken into account in resolving this issue. After all, such purpose is,
in fact, one of the reasons for which equity interferes to remove a cloud on title.[12] Thus, it was held,
“equity will interfere in actions to quiet title to prevent multiplicity of suits where ample and perfect
justice can be done, or, as otherwise stated, it will interpose, in a proper case, to prevent a
Verily, multiplicity of suits may be avoided when a court taking cognizance of a quieting title case will
no longer be precluded from adjudicating the issue of transferring the title of the subject property to
As held under American jurisprudence, “if a multiplicity of suits is inherent in a reference of the parties
to their legal remedies, a court of equity may take jurisdiction to determine confused boundaries.”[14]
Indeed, for as long as it can be shown that, there is an “instrument, record, claim, encumbrance or
proceeding” which constitutes a cloud on one’s title, the ancillary issue of disputed boundaries, which
is necessarily produced as an offshoot of such existence of a cloud, the same court where the action to
quiet title was instituted may likewise settle the issue of boundaries, or reconvey title to the rightful
owner.
Thus, in a scenario where a party, for example, institutes a special civil action for quieting of title,
because of the existence of another certificate of title over his property, which on its face is valid, but
which is in truth and in fact, invalid and prejudicial to his legal or equitable title, he may seek the
declaration of nullity of such title, and in the same case, seek settlement of the boundary dispute
between him and the registered owner, and even the reconveyance of the title to his name.