G.R. No. 173021, 20 October 2010

This case involves a conflict of ownership and possession over an untitled parcel of land in Baguio City. While petitioners are the actual occupants of Lot No. 1 of said land, respondent is claiming ownership thereof and is seeking to recover its possession from petitioners.

According to respondent Margarita Semon Dong-E (Margarita), her family’s ownership and occupation of Lot No. 1 can be traced as far back as 1922 to her late grandfather, Ap-ap. Upon Ap-aps death, the property was inherited by his children, who obtained a survey plan in 1964 which included Lot No. 1. On the same year, they declared the property for taxation purposes in the name of The Heirs of Ap-ap.  The heirs of Ap-ap then executed a Deed of Quitclaim on February 26, 1964 in favor of their brother Gilbert Semon (Margaritas father).

Sometime between 1976 and 1978, Gilbert Semon together with his wife Mary Lamsis, allowed his in-laws Manolo Lamsis and Nancy Lamsis-Kitma, to stay on a portion of Lot No. 1 together with their respective families. They were allowed to erect their houses, introduce improvements, and plant trees thereon. When Manolo Lamsis and Nancy Lamsis-Kitma died sometime in the 1980s, their children, petitioners Delfin Lamsis (Delfin) and Agustin Kitma (Agustin), took possession of certain portions of Lot No. 1. Delfin possessed 4,000 square meters of Lot No. 1, while Agustin occupied 5,000 square meters thereof. Nevertheless, the heirs of Gilbert Semon tolerated the acts of their first cousins.

When Gilbert Semon died in 1983, his children extrajudicially partitioned the property among themselves and allotted Lot No. 1 thereof in favor of Margarita. Since then, Margarita allegedly paid the realty tax over Lot No. 1 and occupied and improved the property together with her husband; while at the same time, tolerating her first cousins occupation of portions of the same lot.

This state of affairs changed when petitioners Delfin and Agustin allegedly began expanding their occupation on the subject property and selling portions thereof. Delfin allegedly sold a 400-square meter portion of Lot No. 1 to petitioner Maynard Mondiguing (Maynard) while Agustin sold another portion to petitioner Jose Valdez (Jose).

With such developments, Margarita filed a complaint for recovery of ownership, possession, reconveyance and damages against all four occupants of Lot No. 1 before the Regional Trial Court (RTC) of Baguio City. The complaint prayed for the annulment of the sales to Maynard and Jose and for petitioners to vacate the portions of the property which exceed the areas allowed to them by Margarita. Margarita claimed that, as they are her first cousins, she is willing to donate to Delfin and Agustin a portion of Lot No. 1, provided that she retains the power to choose such portion.

Whether petitioners, through long-term possession, have acquired the property by prescription.

No. Petitioners admitted that they had occupied the property by tolerance of the owner thereof. Having made this admission, they cannot claim that they have acquired the property by prescription unless they can prove acts of repudiation.

It is settled that possession, in order to ripen into ownership, must be in the concept of an owner, public, peaceful and uninterrupted. Possession not in the concept of owner, such as the one claimed by petitioners, cannot ripen into ownership by acquisitive prescription, unless the juridical relation is first expressly repudiated and such repudiation has been communicated to the other party.

Acts of possessory character executed due to license or by mere tolerance of the owner are inadequate for purposes of acquisitive prescription. Possession by tolerance is not adverse and such possessory acts, no matter how long performed, do not start the running of the period of prescription.

In the instant case, petitioners made no effort to allege much less prove any act of repudiation sufficient for the reckoning of the acquisitive prescription. At most, we can find on record the sale by petitioners Delfin and Agustin of parts of the property to petitioners Maynard and Jose; but the same was done only in 1998, shortly before respondent filed a case against them. Hence, the 30-year period necessary for the operation of acquisitve prescription had yet to be attained.

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