Two Types of Ejectment

1. Introduction

There can be some confusion about the type of ejectment case that should be filed against a person who is unlawfully possessing a property from the owner or its legal possessor. But what is ejectment? In this guide the different types of ejectment will be discussed, including the procedure and requirements for each type.

2. Definition of Ejectment

Ejectment is a summary procedure that determines who has a better right to possess a property. It is a summary procedure because it is designed to quickly determine the issue of possession in order to maintain the peace in the community. Ejectment cases are filed with the Municipal Trial Courts, Metropolitan Trial Courts, and Municipal Circuit Trial Courts.

In ejectment cases, the issue of ownership can only be provisionally resolved for the purpose of determining who has the better right of possession. "Provisionally resolved" means that the resolution of the issue of who owns the property is not final and is only determined for the purpose of determining right of physical possession.

There are 2 types of ejectment proceedings namely Unlawful Detainer and Forcible Entry.

3. Unlawful Detainer

Unlawful detainer is the legal proceeding that should be taken if the person possessing the property (the "possessor") initially had a legal right to possess the property and the possession had become illegal for one reason or another. In other words, the possessor's possession started out as legal but it became illegal.

If an unlawful detainer is filed before a court of law, the following are the general requirements in the complaint:

Initially, the possession of the property by the defendant was by contract with or by tolerance of the plaintiff;
Eventually, such possession became illegal upon notice by the plaintiff to the defendant about the termination of the latter's right of possession;
Thereafter, the defendant remained in possession of the property and deprived the plaintiff of its enjoyment; and
Within one year from making the last demand to vacate the property on the defendant, the plaintiff instituted the complaint for ejectment."

The "plaintiff" is usually the person who owns the property while the "defendant" is the person who is possessing the property.

3.1 Requisites for complaint for unlawful detainer

Below is an explanation of each of the factors that should be present in order to file a complaint for unlawful detention:

3.1.1 Initial legal possession

Initial legal possession means that the possessor started out with a legal right to possess the property such as (1) a contract, such as a residential lease or sublease agreement or a commercial lease agreement, wherein the possessor pays a consideration (such as money) to stay in the property or (2) the owner allowed the possessor to stay in the property for free (without consideration). In the second case, there is an implied promise that the possessor will vacate the property when the owner demands that the possessor vacate the property.

3.1.2 Conversion of legal possession to an illegal possession

The possession of the property by the possessor becomes illegal when the possessor refuses to leave the property despite the fact that they no longer have a right to possess it. If the possession was based on a contract, the contract may have been terminated and the possessor refuses to leave the property. On the other hand, if the possession was based on the consent or tolerance of the owner, then the owner may have withdrawn their consent or tolerance and yet the possessor refuses to leave the property. In either case, the owner should inform the possessor that the latter no longer has the right to possess the property and demand that the possessor leave the same.

3.1.3 Retention of the property

There is a retention of the property if the possessor refuses to leave and continues to keep the property despite the fact that the owner (1) has informed them that the legal possession has been terminated and (2) has made a written demand that the possessor leave the property.

3.1.4 The period for filing a complaint for unlawful detainer

The complaint for unlawful detainer must be filed within one (1) year from the last demand to vacate the property otherwise the owner must file an ordinary civil action called accion publiciana which is generally a longer and more expensive legal action.

There must always be a written demand to vacate the property before a complaint for unlawful detainer can be filed.

4. Forcible Entry

Forcible entry is the legal proceeding that should be taken if the possessor took possession of the property by force, intimidation, threat, strategy, or stealth. To file a complaint for forcible entry, the possessor's possession of the property was illegal from the start.

If a forcible entry complaint is filed before a court of law, the following are the general requirements in the complaint:

that plaintiff must have prior physical possession of the property;
that plaintiff was deprived of possession either by force, intimidation, threat, strategy, or stealth;
that the complaint was filed within one (1) year from the time the owners or legal possessors learned of their deprivation of the physical possession of the property.

4.1 Requisites for complaint for forcible entry

Below is an explanation of each of the requirements in order for the owner to file a case for forcible entry. To avoid confusion, the term "owner" would include the owner and legal possessors, such as a lessee, and the term "possessor" would mean the person who is illegally possessing the property.

4.1.1 Prior physical possession

In forcible entry, physical possession refers to the physical possession of the owner or legal possessor of the property. Prior physical possession means that the owner or legal possessor of the property had physical possession of the property before the illegal possessor entered the property and deprived the former of the physical possession.

Prior physical possession in forcible entry does not only mean a person has to have his feet on every square meter of the property before it can be said that they are in possession of the property. It is sufficient that the property is subject to the will of the person with the right to possess or by proper acts and legal formalities established for acquiring such right such as acts of donation, inheritance, etc.

4.1.2 Deprivation of physical possession of the property

The owner is deprived of property under forcible entry only if the possessor entered the property through force, intimidation, threat, strategy, or stealth. This means that the owner did not allow the possessor to enter the property, and, because of the actions of the possessor, the owner was deprived of the physical possession property.

4.1.3 The period for filing a complaint for forcible entry

The complaint for forcible entry must be filed within one (1) year from the time the owners discovered the unlawful possession of the property otherwise the owner must file an ordinary civil action called accion publiciana which is generally a longer and more expensive legal action.

5. Proper Action to File

Simply put, the test for which action to file is the manner of entry of the possessor. Generally, if the possessor entered the property legally, then a complaint for unlawful detainer would be proper. On the other hand, the general rule is that if the possessor entered the property illegally, then a complaint for forcible entry would be the better course of action.

Either way, the complaint must be filed within one (1) year from the last demand to vacate the property for unlawful detainer or one (1) year from the discovery of the illegal possession for forcible entry.