mail to the sender after 10 days if not delivered
SECTION 13 - Proof of service.—Proof of personal service shall
consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof of the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. (10a)
Proof of Service
1. Proof of personal service shall consist of: a. A written admission of the party served b. Or the official return of the server c. Or the affidavit of the party serving
Contains a full statement of the date, place, and manner of service
2. Proof of service by ordinary mail shall consist of:
a. An affidavit of the person mailing of facts showing compliance with Sec. 7
3. Proof of service by registered mail shall consist of: a. Affidavit and the registry receipt issued by the
mailing office
Registry return card shall be filed immediately upon its receipt by sender
Or, in lieu thereof the unclaimed letter together with the certified or sworn copy of the postmaster to the addressee
SECTION 14 - Notice of lis pendens.—In an action affecting the
title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.
The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (24a, R14)
Breakdown of Provision
A. A Notice of pendency of action may be filed
1. In an action affecting the title or the right of possession of real property
2. By the plaintiff and the defendant (when affirmative relief is claimed in his answer)
3. In the office of the registry of deeds of the province in which the property is situated
B. Notice shall contain: 1. Names of the parties
2. The object of the action or defense
3. Description of the property in that province affected
C. Only from the filing of such notice for record:
1. Shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action
2. And only of its pendency against the parties designated by their real names
D. Notice of lis pendens may be cancelled 1. Only upon order of the court 2. After proper showing:
a. That the notice is for the purpose of molesting adverse party
b. Or that it is not necessary to protect the rights of the party who caused it to be recorded
Lis Pendens
- Literally means a pending suit
- Refers to the jurisdiction, power or control which a court acquires over property involved in a suit, pending the continuance of the action, and until final judgment - The annotation of lis pendens is an announcement to the
whole world that a particular real property is in litigation’ serving as a warning that one who acquires an interest over said property does so at its own risk
- A notice of lis pendens may involve actions that deal not only with the title or possession of property, but also with the use or occupation of property
The litigation must directly involve a specific property which is necessarily affected by the judgment
Purpose of Lis Pendens
1. To protect the rights of the party causing the registration of the lis pendens
2. To advise third persons who purchase or contract on the subject property that they do so at their peril and subject to the result of the pending litigation
Two-fold Effect of Filing a Notice of Lis Pendens
1. It keeps the subject matter of the litigation within the power of the court until the entry of final judgment to prevent the defeat of the final judgment by successive alienations
2. It bins a purchaser, bona fide or not, of the land subject of the litigation to the judgment or decree that the court will promulgate subsequently
Transfer Does Not Affect the Merits of the Case
- A transferee pendente lite of the property involved in litigation stands exactly in the shoes of his predecessor in interest, and as such transferee, he is bound by the proceeding in the case
- Without a notice of lis pendens, a third party who acquires the property after relying only on the certificate of title is a purchaser in good faith
Against such 3rd party, the supposed rights of a
litigant cannot prevail
The former is not bound by the property owner’s undertakings not annotated in the TCT
Actions where Notice of Lis Pendens is Allowed – according to Rule 13:
1. An action to recover possession of real estate 2. An action to quiet title thereto
3. An action to remove clouds thereon 4. An action for partition; and
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5. Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereto or the buildings thereon
Note: To put the property under the coverage of the rule on lis pendens, all a party has to do is to assert a claim of possession or title over the subject property. It is not necessary that ownership or interest over the property is involved
Lis pendens is not, however, allowed in an action for collection of unpaid installments on the purchase price of the property, as the action is in personam.
Actions where Notice of Lis Pendens has No Application – as held in
Tongohan v. CA
1. Preliminary attachments
2. Proceedings for the probate of wills 3. Levies on execution
4. Proceedings for administration of estate or deceased persons
5. Proceedings in which the only object is the recovery of a money judgment
Requirements – As decreed by Sec. 76, PD 1529; a notice of lis pendens should contain:
1. A statement of the institution of an action or proceeding 2. The court where the same is pending
3. Date of its institution 4. It should also contain:
a. A reference to the number of the certificate of title b. An adequate description of the land affected c. And its registered owner
Cancellation of Lis Pendens – The trial court’s inherent power to cancel a notice of lis pendens is exercised only under exceptional circumstances, such as: (Eduardo Fernandez, et al. v. CA)
1. Where such circumstances are imputable to the party who caused the annotation
2. Where the litigation was unduly prolonged to the prejudice of the other party because several continuances procured by petitioner
3. Where the case which is the basis of lis pendens notation was dismissed for non-prosequitur on the part of the plaintiff; or
4. Where judgment was rendered against the party who caused such a notation
Notes:
- Notice of lis pendens cannot be cancelled ex-parte - Neither can it be ordered cancelled upon the mere filing of
a bond
- Cancellation cannot be ordered where appeal is perfected (since the trial court already has lost jurisdiction) Effect of Order of Cancellation – where at the time of the purchase there was already an order for the cancellation of the notice of lis pendens, the buyer may not be considered as purchasers in bad faith Other Principles Laid Down by Jurisprudence
1. The party who had the notice annotated and who won the litigation over the property has the better right as against one who bought it with such annotation (Heirs of Maria
Marasigan v. IAC)
2. Where the notice of lis pendens is limited to a one-half undivided interest in the property in litigation, the owner of the other half has the right to sell his undivided pro indiviso share (Mercado v. Viardo)