Undelivered

The execution of a Deed of Absolute Sale of land constitutes a constructive or symbolic delivery of possession of said land to the buyer. But this is only a prima facie presumption which is destroyed when delivery of actual possession is not effected because of a legal impediment. This is illustrated in this case between Manny and Linda.

By virtue of a contract to sell executed by a bank (BOC) on September 6, 1995 in favor of Mario, the latter acquired possession of a land located at No. 6 Guerrero Street, Xavierville Subdivision (Lot 25, Block 6). The land was acquired by BOC from Xavierville Estate way back on September 8, 1967 for which TCT No. 265907 was issued in its name on December 5, 1979. Based on the contract to sell, BOC turned over possession of the property to Manny who started construction of his house thereon.

When Linda learned that Manny was constructing a house on the property, he sued Manny for Forcible Entry with Injunction and Urgent Prayer for a Temporary Restraining Order. Linda claimed that she is the owner of the subject land and had been in actual possession thereof since June 7, 1993 when the same was sold to her by Tina as evidenced by a Deed of Absolute Sale executed by the latter on said date. She alleged that Manny commenced construction of a house on the property without her consent and despite demands Manny refused to stop the construction and vacate the premises.

For his defense Manny insisted that actual possession of the property was turned over to him by BOC under the said contract to sell dated September 6, 1995; and that BOC had acquired the same from Xavierville Estate and had been in possession thereof for 43 years.

On the other hand, Linda insisted that she had prior possession of the property through ostensible ownership based on the Deed of Absolute Sale executed by Tina on an earlier date (June 7, 1993) by virtue of which TCT No. 87569 was issued in her name on June 8, 1993 derived from Tina’s TCT No. 80618. Linda maintained that from the time she acquired the property she visited the property regularly for about five times until she filed the case three years later upon discovering that Manny had started construction of a house thereon. So, according to Linda since she had prior physical possession of the property, she had the right to eject Manny from the premises when the latter started construction of a house thereon. Was Linda correct?

No. While it may be true that the Deed of Absolute Sale of real estate between Linda and Tina was executed on June 7, 1993 prior to the Contract to Sell between Manny and BOC on September 6, 1995, the execution of the Deed of Absolute Sale is merely a prima facie presumption of delivery of possession of the property which may be negated by the failure of the vendee (Linda) to take actual possession of the property sold. In this case, Linda never occupied the property from the time it was allegedly sold to her on June 7, 1993 or at any time thereafter. Her "regular" visits are not unequivocal proof of her actual or physical possession. In a span of three years, i.e. from the time she bought the property up to the time she filed the case, Linda visited the property only five times. This is not the kind of regular visits that is evidence of actual or physical possession similar to visiting the property on weekends and holidays. Neither did she construct any improvements or fence on the property. In fact she does not even know the road number on which the property is situated given that she visited the place only five times. Her infrequent visits do not constitute possession, specially considering that these were not coupled with actual exercise of dominion over the property.

In contrast, Manny was able to establish his actual physical possession over the property, having started construction of a house thereon soon after the property was turned over to him by virtue of the September 6, 1995 Contract to Sell.

So Linda’s complaint for forcible entry against Manny cannot prosper and must be dismissed (Copuyoc vs. De Sola, G.R. 151322, October 11, 2006).

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