REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL
COURT
SEVENTH JUDICIAL REGION
Branch __
_______ CITY
|
AAAAAA &
BBBBBBB,
Plaintiffs
-Versus-
CCCCCCC,
Defendant.
X----------------------------------------
|
CIVIL
CASE NO. ____________
For:
JUDICIAL PARTITION
|
MEMORANDUM ON THE MERITS
PLAINTIFFS,
through counsel, most respectfully submit this Memorandum.
FACTS OF THE CASE
Spouses DDDDD and EEEEEE were married on May 23, 1954. Out of that
union, three children were born, namely, AAAAA and BBBBBB (hereinafter
referred to as Plaintiffs) and CCCCCC (hereinafter referred
to as Defendant). In their lifetime, the couple are the absolute owners of
a parcel of land covered by Transfer Certificate of
Title No. T-______________ – marked as Exhibit
– “P”, thru a Deed of Extrajudicial Settlement and Absolute Sale dated
________________ – marked as Exhibit – “A”.
The couple then built a house on the
said lot and over the years, renovated and remodeled the said house with the
combination of their pensions and the joint financial contribution from their
three grown-up children. When the spouses died on _______________ and on __________________, they left behind the said house and lot in the possession of the siblings
without dividing the said property.
Trouble ensued when one of the siblings
– the herein defendant appropriate the whole property to himself, leaving the
sisters with nothing and even kicking them out. Feeling hopeless and despondent
because for all the hard work and sacrifice they have invested in the said
property, the Plaintiffs seek help from the barangay, which was largely ignored
by Defendant. To add to their woes, Plaintiffs also found out that the tax
declaration has been transferred in the name of Defendant without their
knowledge and consent. Hence, this Complaint.
ISSUE
1. Are the AAAAA and BBBBBB are entitled to judicial partition of Lot No. ________ and the house built on Lot
No. ___________?
DISCUSSION
There
are several pertinent provisions set forth in the New Civil Code that would
serve as the guiding posts, with focus on the rules of co-ownership and
partition, to wit:
Art.
486. Each co-owner may use the thing owned in common, provided he does so in
accordance with the purpose for which it is intended and in such a way as not
to injure the interest of the co-ownership or prevent the other co-owners from
using it according to their rights.The purpose of the co-ownership may be
changed by agreement, express or implied.
Art.
1085. In the partition of the estate, equality shall be observed as far as
possible, dividing the property into lots, or assigning to each of the co-heirs
things of the same nature, quality and kind. (1061)
Art.
1086. Should a thing be indivisible, or would be much impaired by its being
divided, it may be adjudicated to one of the heirs, provided he shall pay the
others the excess in cash.
Nevertheless,
if any of the heirs should demand that the thing be sold at public auction and
that strangers be allowed to bid, this must be done. (1062)
Art.
1087. In the partition the co-heirs shall reimburse one another for the income
and fruits which each one of them may have received from any property of the
estate, for any useful and necessary expenses made upon such property, and for
any damage thereto through malice or neglect. (1063)
Plaintiffs
and defendant are co-owners of the subject property.
Co-ownership exists when the ownership
of an undivided thing or a right belongs to different persons. Sources of
co-ownership come from law, contract, chance, occupation or occupancy, or by
will and succession.
On the case at hand, plaintiffs and
defendant, being the heirs of their parents naturally become co-owners of the
property upon the death of their parents DDDDDDD and EEEEEEEEEEEE by operation of law, as provided for in Article 777 of the New
Civil Code wherein the rights of succession are transmitted from the moment of
death of the decedent as evidenced by the Death Certificates of DDDDDDD and
EEEEEEEEE – marked as Exhibits “B”
and “C” and the birth
certificates of the Plaintiffs – marked as Exhibits
“D” and “E”, to prove their
filial relationship and right as heirs of DDDDDDDDD and EEEEEEEE.
Plaintiffs
entitled to judicial partition of the property.
As a general rule, co-ownership is frowned upon
except when there is an expressed intent of the testator that forbids the
division of said property. In the case at bar, no such prohibition existed
because both parents died without leaving any will.
As
can be gleaned in the following provisions:
Art.
494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner
may demand at any time the partition of the thing owned in common, insofar as
his share is concerned.
Nevertheless,
an agreement to keep the thing undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may be extended by a new
agreement.
A
donor or testator may prohibit partition for a period which shall not exceed
twenty years.
Neither
shall there be any partition when it is prohibited by law.
Art.
498. Whenever the thing is essentially indivisible and the co-owners cannot
agree that it be allotted to one of them who shall indemnify the others, it
shall be sold and its proceeds distributed. (404)
In accordance with law and jurisprudence,
Plaintiffs are entitled to their pro-indiviso shares in the property covered by
Transfer Certificate of Title No. T-_____ being the legitimate heirs of their
parents. Should division be impossible, the Plaintiffs are entitled to the cash
equivalent of their share from the proceeds of the sale of such property.
Such was not the case. They were forcefully kicked
out of the property and deprived of their right as co-owners. They were forced
to rent instead of being able to enjoy the property that they themselves have
contributed financial help in renovating and remodeling the house. This should not be tolerated.
Defendant has no right to appropriate
property to himself.
One of the sources of the hurt and
disappointment of the Plaintiffs was the discovery that the Defendant had
transferred the tax declaration in his name without the knowledge and consent
of the Plaintiffs, absent any documents that can support the transfer.
Granting arguendo that tax declarations,
coupled with possession and occupation, are the best indices for ownership,
this cannot hold sway as no such repudiation has been carried out by Plaintiffs
in the aforesaid property.
The Supreme Court elucidated in the case of Paz
Galvez, Carlos Tam, and Tycoon Properties, Inc.
vs. Hon. Court Of Appeals And Porfirio Galvez, G.R. No. 157954. March
24, 2006.
It is a fundamental principle that a co-owner
cannot acquire by prescription the share of the other co-owners, absent any
clear repudiation of the co-ownership. In Santos v. Santos, citing
the earlier case of Adille v. Court of Appeals, this Court
found occasion to rule that:
“Prescription, as a mode of terminating a relation
of co-ownership, must have been preceded by repudiation (of the
co-ownership). The act of repudiation, in turn, is subject to certain
conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of repudiation
is clearly made known to the other co-owners; (3) the evidence thereon is clear and
conclusive; and (4) he has
been in possession through open, continuous, exclusive, and notorious
possession of the property for the period required by law.
For title to prescribe in favor of a co-owner
there must be a clear showing that he has repudiated the claims of the other
co-owners and the latter has been categorically advised of the exclusive claim
he is making to the property in question. The rule requires a clear
repudiation of the co-ownership duly communicated to the other co-owners.
It is only when such unequivocal notice has been given that the period of
prescription will begin to run against the other co-owners and ultimately
divest them of their own title if they do not seasonably defend it.
To sustain a plea of prescription, it must always
clearly appear that one who was originally a joint owner has repudiated the
claims of his co-owners, and that his co-owners were apprised or should have
been apprised of his claim of adverse and exclusive ownership before the
alleged prescriptive period began to run.
Prescription only sets in when there is a clear
repudiation of the co-owner of his share. On the case at hand, there is no such
repudiation by Plaintiffs. In fact, they are fighting tooth and nail to be able
to be restored and gain possession of the property of which they are clearly
co-owners.”
Moreover, as testified by the Plaintiffs, witness
– _____________, and the City Engineer of __________, subsequently proven by the
Building Permit Application – marked as Exhibit
“R” and the Certification – marked as Exhibit
“O”, that there was an existing house built thereon in view of the fact the
permit was just a renovation and not for new building. ___________ - the
carpenter and the witness of the Defendant, also said in his testimony that
before he started working on the disputed land, there was already an existing
house thereon.
Moreover, the previous three (3) tax declaration
for the improvements on Lot No. ________, namely: Tax Declaration No. ___________-
marked as Exhibit “F”, Tax
Declaration No. ____________ - marked as Exhibit
“G”, and Tax Declaration No. ______________ - marked as Exhibit “H”, are all under the name of
DDDDDD and EEEEEEEEEEEEEE. It was only in the Tax Declaration No.
____________ effective for the year 2001 – marked as Exhibit “I” and Tax Declaration No. _____________ effective for
the year 2014 – marked as Exhibit – “J”,
that the names of CCCCCCCCC and FFFFFF were mentioned.
Thus, since there was an existing house thereon. A
document or deed conveying house is needed to support the Defendant’s claim
that he owned the house exclusively. But during the testimony of the City
Assessor of __________, she categorically stated that there was no any deed of
conveyance submitted to their office by the Defendant. Clearly, the said house
constructed thereon is owned by the siblings in common and not owned
exclusively by the Defendant.
PRAYER
WHEREFORE,
premises considered, it is most respectfully prayed of this Honorable Court
that:
1.
Render judgment that the herein
Plaintiffs be ordered to acquire back their possession, thus, to exercise their
right to use and enjoy the property subject of this case;
2.
That the aforementioned property owned
in common by the herein Plaintiffs and Defendant be partitioned judicially;
3.
That the Defendant be held liable for
attorney's fees, damages, costs and other expenses of this case;
4.
Plaintiffs pray for such other
reliefs, just and, equitable in the foregoing premises;
Respectfully
submitted, August 31, 2023.
ATTY. XXXXXX
Counsel for the Plaintiffs
Roll No. ___
PTR. No. ____- 01/09/2023
IBP No. ___ - 01/20/2023
MCLE No. VII-____ until 4/14/2025
_____ City,
___________, Philippines
Copy
furnished:
Atty.
____________
__________ Office
___________ City
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