Forcible Entry vs Unlawful Detainer
Studying in the Lib
Highlights of FE and UD
- Demand is not necessary; the defendant has occupied the premises illegally from the beginning; but there is one instance when jurisprudence requires a demand: if the occupation of the premises was effected by stealth; there should be a demand upon discovery; because stealth is somewhat clandestine, this is the only instance in jurisprudence where demand is necessary in a forcible entry case, otherwise demand is not necessary.
- There must be an allegation in the complaint that the plaintiff was in prior actual physical possession. That’s a part of the statement of the cause of action. He was actually in possession of the premises, NOT de jure possession. And such actual possession was taken away from him by force, or intimidation, or by threat, or by strategy, or by stealth.
- File within the 1 year period from the accrual of the cause of action.
From what point do you count the 1 year period? From the actual entry. Except for stealth, where it will be counted from the time of demand or notice to vacate.
If filed beyond the 1 year period, you cannot file it as a FE case anymore; but an ordinary action that is not summary may not be verified (action interdictal).
- Petition must be verified
- No permissive counterclaim allowed.
- Demand is required as a rule unless there is stipulation to the contrary because 1169 of the Civil code where although demand is required, one exception is where there is stipulation to the contrary. Second instance is when the ground is expiration of the lease. But remember this, as found in past examinations, where the ground for unlawful detainer is non-payment of rentals, or non-compliance of the conditions of the lease, your allegations must contain a demand to vacate.
- NB: in Legal forms exams, you may be asked to write an unlawful detainer complaint; put a demand to vacate.
- Such an allegation of prior actual physical possession is not required in unlawful detainer. Why? Because the plaintiff is not in possession. The one in possession is the lessee or the person tolerated to occupy the premises. What makes his detention or holding of the property unlawful or illegal? It is the demand to vacate and the failure to vacate which transforms his legal possession into an unlawful possession.
How should the demand be made? Rule 70 Section 2. Not every demand to vacate is a correct demand giving rise to an action of UD. If the nature of the demand is wrong, it may not give rise into an UD case. Non-payment of rentals. Non-compliance with the conditions of lease. The demand should be to pay and to vacate or to vacate and to pay. Demands to comply and to vacate are conditions of unlawful detainer.
In Barazona vs. City of Baguio (April 27, 2006) àrentals in arrears was 900k, after the demand went unheeded, an action was filed in the RTC entitled “an action to collect a sum of money”; but the allegation in the complaint was to pay and to vacate (a nature of UD); defendant filed motion to dismiss on the ground of lack of jurisdiction because “to pay and to vacate” are is not characteristic of collection of a sum of money but for UD cognizable by the MTC; denied; defendant went directly to the SC on the ground that the RTC’s denial was patently null and void; SC agreed with him.
To convert the action to recovery of a sum of money, just change “and” to OR; to pay or to vacate.
If demand is to comply with the conditions of the lease OR to vacate, no longer UD but an action for specific performance incapable of pecuniary estimation; go to RTC.
- Filed within the 1 year period from the accrual of the cause of action.
From what point do you count the 1 year period? From the last demand to vacate or the notice to quit. If ground is expiration of the lease, from the point of expiration of the lease because there is no need to demand.
- If filed beyond the 1 year period, you cannot file it as UD case anymore; but an ordinary action that is not summary
- Petition must be verified.
- No permissive counterclaim allowed.