REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT

FOURTH JUDICIAL REGION
BRANCH 00, DASMARIAS, CAVITE

MARIA THELMA C. MAGBANUA

Plaintiffs,

-versus- Civil Case No. 00-000

For: Unlawful Detainer

KENNETH C. SUBARAN
Defendants,
x-----------------------------------------------x

POSITION PAPER
(for the PLAINTIFF)

Plaintiff, by and through undersigned counsel, unto this Honorable Court most
respectfully submit this POSITION PAPER and aver as follows:

I
TIMELINESS OF THIS POSITION PAPER

On December 1, 2016, the undersigned counsel for the plaintiff received the
Order, dated November 25, 2016, of this Honorable Court, ordering the parties to file
their respective Position Papers within 10 days from receipt of the Pre-Trial order. The
mailing of this Position Paper is within the above-dated required period.

II

THE PARTIES

Plaintiffs - MARIA THELMA C. MAGBANUA of legal age, Filipino citizen with

residence and postal address at No. 325 Mabuhay Street, Phase 4, Grand Parkplace
Executive Village, Brgy. Niog, Bacoor, Cavite

Defendants KENNETH C. SUBARAN of legal age, Filipino citizen with a

residence and postal address at No. 0140 E Left Mercury Street, Villa Verde Subdivision,
Brgy. Anabu V, Dasmarias, Cavite.

III

FACTS INVOLVED

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 On September 25, 2014, Plaintiff and Defendant entered into Lease
Agreement over the House and lot property covered by TCT No. 161129 for a
period of one (1) year. As per agreement of the parties the monthly rental is
Fifteen Thousand pesos (Php 15,000.00). Copy of the Lease Contract was
attached to the Complaint as Annex A.

The said real property rented by the Defendant is in the name of the
Plaintiff Maria Thelma C. Magbanua (the lessee for brevity). Faithful
reproduction of the said title duly compared with the original and the same
was attached to the Complaint as Annex A and Annex C.

On May 15, 2015, Plaintiff, after entering into the lease contract with
the Defendant, was informed that Defendants son occupies and constructed a
house within the landholding of the property but separate from the house
where Defendant currently inhabiting. Plaintiff demands additional rent for
the actions of Defendants son for occupying and building a house on the said
premises. However, upon arriving at the place certain Engr. Manuel De Luna
(Defendant for brevity) barred them to enter. It was reasoned out by the
Defendant that he owns the same.

On October 31, 2016, Plaintiff personally brought the Demand Letter,

due to the unyielding action of the defendant to vacate the rented premises
and settle the rental amount from May 25, 2015 to October 25, 2016
(18months) which act was a clear violation of the terms and condition of
lease contract, with his lawyer again tried to re-possess the said premises and
demanded that he vacate the premises and settle the aggregate amount of Php
540,000.00. Unfortunately, defendant has failed and refused to vacate the
premises and pay the rental arrears. A copy of the demand letter dated
October 31, 2016 was attached to the Complaint as Annex C thereof.

Defendant cannot deny the fact that he is the one occupying the said
house lot as he use it as his residential place and utilizes portion of the
property as stockpile for the equipment and materials necessary for his
business. It is the defendant who actually refuses to vacate the place since he
use the property as his residential place and portion of the property for hs
business. Many of his equipments and materials necessary for his business
would be displaced.

IV

ISSUES

(A)

WHETHER OR NOT DEFENDANT IS UNLAWFULLY DETAINING THE SUBJECT

PROPERTY.

(B)

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 WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO THE RELIEF PRAYED
FOR.

ARGUMENTS/DISCUSSIONS

(A)
WHETHER OR NOT DEFENDANT IS
UNLAWFULLY DETAINING THE SUBJECT
REAL PROPERTY.

There is unlawful detainer in the instant case.

Plaintiff was granted extension of the term of the leased contract by the lessor
until he could be properly place and occupies the subject property free from any restraint.
This is imperative as the plaintiff has not occupied the subject premises since the time he
actually leased and demands possession from the defendant. Likewise, plaintiff is
continuously paying the stipulated rent for the said premises.

In the instant case, Defendant was already in default in the payment of rent of the
premises in question at the time Defendants son flagrantly build a house and occupy
portion of the subject leased property and until now Defendant refused to vacate the
same. Even assuming without admitting that his son who was the one occupying the said
portion of the property was tolerated and allowed by Defendant, the same amounts to
unlawful detainer. So from the nature of defendants possession from its inception is valid
and subsequently becomes illegal as defendant failed to vacate the premises upon being
demanded to.

Defendants son had been occupying portion of the land which he believes he is
entitled to because his father is leasing the place hence, defendant has no right
whatsoever to stay and refused to vacate such property because of its failure to inform the
plaintiff about the changes made by defendants son is also tantamount to breach of
contract.

Evidently, the one who will suffer the most in vacating the leased premises is the
defendant as he would lose his residential place, parking lot and depot. Not to mention

3
the fact that his son flagrantly building a house without the knowledge of the plaintiff,
occupancy of the subject premises is without any rental fees being paid. So, plaintiff has
the reason to ask defendant and his son to vacate the premises.

Assuming without conceding, that at the inception the occupancy of the defendant
on the leased premises is valid but the same becomes unlawful upon his failure to inform
the plaintiff about the changes made by his son and vacate the same upon the demand of
the owner of lot or lessee, the Plaintiff for breach of contract.

Section 1, Rule 70 on forcible entry and unlawful detainer of the 1997 Rules of
Civil Procedure, as amended, reads:

Section 1. Who may institute proceedings, and when. Subject to

the provisions of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat, strategy,
or stealth, or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of
any contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee or other person may, at any
time within one (1) year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of possession, or
any person or persons claiming under them, for the restitution of such
possession, together with damages and costs.(Emphasis Ours)

In the case of Roxas vs. Court of Appeals1 which is applicable in the instant case
A person who occupies the land of another at the latters tolerance or permission,
without any contract between them, is necessarily bound by an implied promise that he
will vacate upon demand, failing which, a summary action for ejectment is the proper
remedy against him.

Considering that defendant is occupying the said land without any contract
whatsoever then he is bound to return and turn-over the subject lot upon demand by the
owner or those who hold legitimate right over the same by virtue of contract. In the event
that defendant refuses, the proper remedy is ejectment in order to put the Plaintiff in
possession of the subject lot in view of the fact that the Plaintiff still had an existing
contract of lease with the lessor up to this time as their previous contract was extended.
1

4
 (B)
WHETHER OR NOT THE PLAINTIFF
IS ENTITLED TO THE RELIEF
PRAYED FOR.

Perusal of the discussions above, plaintiff would have been in peaceful possession
of the property where it not for the unjustified refusal of the defendant to vacate the
subject premises.

Plaintiff from the time of entering into leased agreement until now, due to the
extension of the term and undertaking of the lessor, is paying the stipulated rental fees in
the amount of Php 15,000.00 then additional Php 15,000.00 for the Defendants son
occupying also the said premises the total Php 30,000.00 per month or in the total
aggregate amount of Php 540,000.00 for seventeen (18) months from May 25, 2016 to
October 25, 2016.

Likewise, due to the unjustified refusal of the defendant to vacate the leased
premises, plaintiff was forced to engage the legal services of a lawyer to assert his right
over the leased property.

Considering that Defendant failed and refused to vacate the subject premises,
Plaintiff was not able to utilized the income that the said property can provide and
accordingly bringing sleepless night and serious anxiety upon the plaintiff as he has to
find ways on how he could cope up with the growing demands of his and his family
needs.

Plaintiff is entitled to the amount of the rental payments plus legal interest from
the time of demand, Moral damages, Exemplary damages, Attorneys fees and costs of
suit.

In the instant case, plaintiffs allegations sufficiently present a case of unlawful

detainer. Plaintiff avers that (1) he leased a real property covered by TCT No. 161129
which pertain to the lot occupied by the defendant as his residential place (2) the lessor

5
tolerated the defendants son to construct a house thereon as there is no contract, express
or implied; (3) the defendant withdrew his tolerance by entering into leased agreement
with the plaintiff warranting possession thereof; (4) defendant refused to heed to the
demand to vacate the property made by the plaintiff who obtain some right over the same
by virtue of a leased agreement; and (5) plaintiff filed the instant case (November 4,
2016) within one year from the date of his demand which was made on October 31,
2016. So, the cause of action for unlawful detainer between the parties springs from the
failure of the defendant to vacate the lot upon lawful demand of the plaintiff. Hence
when defendant refused to vacate the lot after plaintiffs demand, the former continued
possession became unlawful.

Therefore, the complaint for ejectment against defendant, to put it simply, is not
without sufficient basis thus, plaintiff is entitled to relief prayed for.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the Defendant be ordered to:

a) Vacate the subject premises;

b) Pay the Plaintiff the amount of Five Hundred Forty Thousand pesos (Php
540,000.00) for nineteen (18) months representing the reasonable compensation
for the use of the property from May 25, 2015 to October 25, 2016 plus Fifteen
Thousand pesos (Php 15,000.00) every month as Plaintiff continue to suffer
further damages for Defendants continued unlawful detention of the premises
until Defendant shall have fully vacated the same ;

c) Pay the Plaintiff the amount of Php 30,000.00 as moral damages;

d) Pay the Plaintiff the amount of Php 20,000.00 as exemplary damages;

e) Pay the Plaintiff the amount of Php 50,000.00 Attorneys fees plus Php 2,500.00
per diem per hearing; and

f) Pay the cost of the suit.

Such other reliefs and remedies as are just and equitable under the foregoing premises are
equally prayed for.

December 4, 2016. Taguig City for Dasmarias, Cavite

THE LAW FIRM OF EBUEN AND ASSOCIATES

Counsel for the Plaintiff
Suite 1003, Penthouse

6
 Union Square Condominium
No. 145 15th Bonifacio Global City, Taguig
Tel Nos. 877-3900 / 421-0000 (Telefax)

by:

JAYA P. EBUEN
IBP Lifetime No. 61000 / Q.C.
PTR No. 8450000/ 01-03-07 / Q.C.
Roll No. 46000

VERIFICATION

I, MARIA THELMA C. MAGBANUA, of legal age, Filipino citizen with postal

address at No. 325 Mabuhay St. Phaase 4, Grand Parkplace Executive Village, Brgy.
Niog, Bacoor, Cavite, after having been duly sworn to in accordance with law, hereby
depose and state, That:

1. I am the Plaintiff in the above-entitled case.

2. I have caused the preparation of the foregoing Position Paper.

3. I have read and understood the contents, and the said contents thereof and
hereby affirm that the same are true and correct as of my own personal
knowledge, belief and based on official or authentic records.

IN WITNESS WHEREOF, I have affixed my signature below this ___ day of

December 2016 at Taguig City, Philippines.

MARIA THELMA C. MAGBANUA

Plaintiff

SUBSCRIBED AND SWORN TO before me this ___ day of December 2016 at

Taguig City, Philippines. Affiant, MARIA THELMA C. MAGBANUA, personally
appeared and exhibited to me her Identification Card No. SS No. 33-8183334-6 issued by
Social Security System.

Doc. No. ______; Notary Public

Page No. _____;
Book No. ______;

7
Series of 2016

Copy Furnished:

ATTY. RAQUEL FETALINO

Counsel for the Defendant ________________________
RM. 437, Arrietta Tower II ________________________
0722 Matalino Street
Quezon City

EXPLANATION AS TO MODE OF SERVICE

Due to distance and lack of manpower at this time, the original copy of this Position of
Paper and a copy thereof were sent to this Honorable Court and to the counsel for
defendant by LBC courier respectively instead of personal delivery because of the
distance.

JAYA P. EBUEN