Dear PAO,
The condominium unit which I bought was mortgaged by the developer and eventually foreclosed extrajudicially. I only knew of the foreclosure when a representative of the buyer knocked on my door and was surprised that I was occupying the unit. He informed me that he will apply for a writ of possession, considering that the redemption period had already lapsed. I relayed my opposition as I have already fully paid the unit but failed to facilitate the transfer of the title in my name. I informed him that I will challenge his application for possession but the buyer’s representative uttered that I cannot do anything because the issuance of the writ of possession is ministerial. Is this correct?
Ziggur

Dear Ziggur,
With the passage of Presidential Decree (PD) 957, otherwise known as the “Subdivision and Condominium Buyer’s Protective Decree,” as amended, condominium or subdivision buyers are now protected from the fraudulent acts perpetrated by developers or sellers. Clearly, your lack of knowledge on the apparent mortgage executed by the developer over your unit is in violation of Section 18 of the said law which provides that:

“No mortgage on any unit or lot shall be made by the owner or developer without prior written approval of the Authority. Such approval shall not be granted unless it is shown that the proceeds of the mortgage loan shall be used for the development of the condominium or subdivision project and effective measures have been provided to ensure such utilization. The loan value of each lot or unit covered by the mortgage shall be determined and the buyer thereof, if any, shall be notified before the release of the loan. The buyer may, at his option, pay his installment for the lot or unit directly to the mortgagee who shall apply the payments to the corresponding mortgage indebtedness secured by the particular lot or unit being paid for, with a view to enabling said buyer to obtain title over the lot or unit promptly after full payment thereto.” (Emphasis supplied)
On the other hand, and assuming that the foreclosure happened without violating the abovementioned law and the debtor failed to redeem the property, the rule that needs to be observed in the application of a writ of possession is found under Section 33, Rule 39, of the 1997 Rules of Court, as amended, which states that:

“If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it.
“Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party adversely to the judgment obligor.”

A cursory reading of the mentioned provision implies that the issuance of writ of possession is ministerial. However, the same is not absolute. One exception was illustrated in Spouses Rosario vs Government Service Insurance System, GR 200991, March 18, 2021, where the Supreme Court, speaking through Honorable Associate Justice Rodil V. Zalameda, stated that:
“Thus, in keeping with the avowed purpose of PD No. 957, the rule should now be that the issuance of a writ of possession ceases to be ministerial if a condominium unit or subdivision lot buyer intervenes to protect their rights against a mortgagee bank or financial institution. The court must order a hearing to determine the nature and source of the buyer’s supposed right to the foreclosed property. Should the judge be satisfied that the oppositors to the issuance of the writ are bona fide condominium or subdivision buyers who are in actual possession of the property, the writ should thus be issued excluding the aforesaid buyers from its implementation. It should, however, be clarified that exclusion of such buyers is without prejudice to the outcome of cases concerning the validity of the mortgage between the developer and the mortgagee financial institution or bank under Section 18 of PD No. 957.”

Applying the above-quoted decision in your situation, the claim of the representative of the buyer that the issuance of a writ of possession is ministerial is correct, but not without exception. One exclusion is when a condominium owner who is in possession of the property will be prejudiced as in your case. You cannot be summarily evicted from your unit by the ministerial of a writ of possession. Instead a hearing should be held to determine the nature and source of your right.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]