Dear PAO,

The only proof that I bought a house and lot from a subdivision developer is an unnotarized deed of sale. The developer mortgaged the property. The same was foreclosed extra-judicially because of non-payment of debt and sold in public auction. The buyer is now applying for a writ of possession. My friend told me that I am a third party possessor and, therefore, a writ of possession cannot be issued against me. Is he correct? Please enlighten me on this matter.

Zinouris

Dear Zinouris,

Under the provisions of Section 33, Rule 39 of the 1997 Rules of Court, as amended, the issuance of a writ of possession is ministerial unless a third party holds the property by adverse title.

This concept of a third party possessor was fully explained in the case of Integrated Credit and Cooperative Services, Co. vs. Labrador and Philippians Academy of Parañaque City, G. R. No. 233127, July 10, 2023, penned by Chief Justice Alexander G. Gesmundo, where it was stated that:

“To be clear, for the second exception of the trial court’s ministerial issuance of an ex parte writ of possession to apply, a third party should hold possession of the property adversely to the judgment obligor. In Madriaga, Jr. v. China Banking Corp., the Court discussed the meaning of a ‘third party who is actually holding the property adversely to the judgment obligor,’ thus: The exception provided under Section 33 of Rule 39 of the Revised Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property. (Emphasis supplied)

Indeed, to be considered in adverse possession, the third party possessor must have done so in his own right and not as a mere successor or transferee of the debtor or mortgagor. Only in such instance shall the trial court’s duty to issue a writ of possession in favor of the purchaser, who has consolidated ownership, not be considered as ministerial.”

Still, raising the third party adverse possessor concept for purposes of opposing the ministerial issuance of writ of possession will not automatically result to a favorable outcome. The claim must be substantiated. This is exactly the pronouncement of the Supreme Court in Gopiao vs. Metropolitan Bank and Trust Co, G.R. No. 188931, July 28, 2014, penned by Chief Justice Diosdado M. Peralta:

“All told, we observe that there is nothing that would indicate that the lower court acted without or in excess ofjurisdiction or with grave abuse of discretion in denying petitioner’s intervention. Had petitioner properly substantiated his claim of possession with sufficient evidence, the lower court could have applied the exception instead of the general rule, permitted his intervention, and prevented the implementation of the subject writ of possession. Yet, as previously mentioned, not only did petitioner present an un-notarized and unregistered Deed of Absolute Sale but there exists no trace of petitioner’s claim of ownership on the titles of the subject properties. Verily, the exception cannot be made to apply in the instant case as petitioner failed to establish his actual possession of the same. Measured against established parameters, the rejection by the lower court of petitioner’s intervention was not without basis and, hence, could not have been arrived at capriciously, whimsically, arbitrarily or despotically.”

Applying the above-quoted decision in your situation, it is necessary that your claim of ownership or possession adverse to the debtor or mortgagor must be substantiated with sufficient evidence. The unnotarized or unregistered deed of sale that you hold is not sufficient evidence of ownership or possession adverse to the debtor. You must show evidence of ownership, like possession of the property in the concept of an owner. Only then may you invoke the third party adverse possessor concept to stop the issuance of a writ of possession against your property.

We hope that we were 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]