Dear Sir:
This serves as my report on whether complainant Hector E. Fajardo’s application for
notice of lis pendens should be granted on the ground that the criminal case for estafa
involves the sale of a parcel of land situated in Baguio City, covered by Transfer
Certificate of Title No. T-29417.
NOTICE OF LIS PENDENS UNDER THE RULES OF COURT
The notice of lis pendens is an announcement to the whole world that a particular real
property is in litigation, and serves as a warning that one who acquires an interest over
said property does so at his own risk, or that he gambles on the result of the litigation
over said property. The registration of a notice of lis pendens is governed by Section 24,
Rule 14 of the Rules of Court:
Sec. 24. Notice of lis pendens. In an action affecting the title or the right of
possession of real property, the plaintiff, at the time of filing the
complaint, and the defendant, at the time of filing his answer, when
affirmative relief is claimed in such answer, or at any time afterwards,
may record in the office of the registrar of deeds of province in which the
property is situated a notice of the pendency of the action, containing the
names of the parties and the object of the action or defense, and a
description of the property in that province affected thereby. From the
time only of filing such notice for record shall a purchaser, or
incumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action, and only of its
pendency against parties designated by their real names.
NOTICE OF LIS PENDENS IS ONLY PROPER OF THE FOLLOWING CASES
In Magdalena Homeowners Association, Inc. vs. Court of Appeals, this Court enumerated
the cases where a notice of lis pendens is proper:
According to Section 24, Rule 14 of the Rules of Court and Section 76 of
Presidential Decree No. 1529, a notice of lis pendens is proper in the
following cases, viz.:
a) An action to recover possession of real estate;
b) An action to quiet title thereto;
c) An action to remove clouds thereon;
d) An action for partition; and
e) Any other proceedings of any kind in Court directly affecting the title
to the land or the use or occupation thereof or the buildings thereon.
THE ELEMENTS TO ANNOTATE NOTICE OF LIS PENDENS
To annotate a notice of lis pendens, the following elements must be present:
(a) the property must be of such character as to be subject to the rule;
(b) the court must have jurisdiction both over the person and the res; and
(c) the property or res involved must be sufficiently described in the
pleadings.
RELEVANT JURISPRUDENCE
In Villanueva v. Court of Appeals1, the Supreme Court explained on whether it is
necessary for the applicant of the notice of lis pendens to prove his ownership or
interest over the property, thus:
“We stress that although it is not necessary for the applicant to prove his
ownership or interest over the property sought to be affected by lis
pendens, the applicant must, in the complaint or answer filed in the
subject litigation, assert a claim of possession or title over the subject
property in order to give due course to his application. As settled, lis
pendens may be annotated only where there is an action or proceeding in
court which affects the title to, or possession of, real property.“
Likewise, in Tan v. Benolirao2, the Supreme Court reiterated that the lis pendens
annotation is not proper in personal actions, to wit:
The litigation subject of the notice of lis pendens must directly
involve a specific property which is necessarily affected by the judgment.
Tan’s complaint prayed for either the rescission or the reformation
of the Deed of Conditional Sale. While the Deed does have real property
for its object, we find that Tan’s complaint is an in personam action, as
Tan asked the court to compel the respondents to do something – either
to rescind the contract and return the down payment, or to reform the
1 G.R. No. 117108, November 5, 1997
2 G.R. No. 153820, October 16, 2009
contract by extending the period given to pay the remaining balance of
the purchase price. Either way, Tan wants to enforce his personal rights
against the respondents, not against the property subject of the Deed. As
we explained in Domagas v. Jensen:
The settled rule is that the aim and object of an action determine
its character. Whether a proceeding is in rem, or in personam, or quasi in
rem for that matter, is determined by its nature and purpose, and by
these only. A proceeding in personam is a proceeding to enforce personal
rights and obligations brought against the person and is based on the
jurisdiction of the person, although it may involve his right to, or the
exercise of ownership of, specific property, or seek to compel him to
control or dispose of it in accordance with the mandate of the court. The
purpose of a proceeding in personam is to impose, through the judgment
of a court, some responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant to
specifically perform some act or actions to fasten a pecuniary liability on
him.
Furthermore, as will be explained in detail below, the contract
between the parties was merely a contract to sell where the vendors
retained title and ownership to the property until Tan had fully paid the
purchase price. Since Tan had no claim of ownership or title to the
property yet, he obviously had no right to ask for the annotation of a lis
pendens notice on the title of the property.”
APPLICABILITY OF NOTICE OF LIS PENDENS IN THE INSTANT ESTAFA CASE
- NOT PROPER
In the instant case, Complainant Hector Fajardo sought to annotate in the TCT No.
018-2018001651 (former TCT No. T-29417) that the aforesaid parcel of land is the
subject matter of the criminal case of estafa.
However, perusal of the affidavit-complaint of herein Complainant would show that
the subject matter of the estafa case is not the aforesaid parcel of land, rather, it is the
false and fraudulent act of the accused of selling the aforesaid parcel of land covered
by TCT No. 018-2018001651 (former TCT No. T-29417) to the Complainant.
Clearly, the judgment in the estafa case will not have an effect on the subject
property. In fact, what the complainant sought as prayed in the complaint-affidavit
is to declare the accused guilty of the crime of estafa, which is purely personal
against the accused. Further, Complainant does not even assert a claim of possession
or title over the subject property in order for his application for lis pendens be
granted.
Lastly, considering that the contract of sale of the land between the complainant and
the accused are conditional and hence, merely a contract to sell, the vendor/accused
retained title and ownership to the property until complainant had fully paid the
purchase price. Since complainant had no claim of ownership or title to the property
yet, complainant had no right to ask for annotation of a lis pendens notice on the
title of the property.
