Cancellation Of Lis Pendens 1053l

CANCELLATION OF LIS PENDENS > Ordinarily a notice which has been filed in a proper case cannot be cancelled while the action is pending and undetermined, except in cases expressly provided for by statute > It may be cancelled upon order by the court or upon action by the of Deeds at the instance of the party who caused the registration of the notice > While the trial court has ch power is exercised under o If the annotation was for rty o When the annotation isn t it to be recorded

inherent power to cancel a notice of lis pendens, su express provisions of law the purpose of molesting the title of the adverse pa necessary to protect the title of the party who caused

Section 77. Cancellation of lis pendens. Before final judgment, a notice of lis pendens may be canceled upon order of the court, after proper showing that the n otice is for the purpose of molesting the adverse party, or that it is not neces sary to protect the rights of the party who caused it to be ed. It may a lso be canceled by the of Deeds upon verified petition of the party who caused the registration thereof. At any time after final judgment in favor of the defendant, or other disposition of the action such as to terminate finally all rights of the plaintiff in and t o the land and/or buildings involved, in any case in which a memorandum or notic e of lis pendens has been ed as provided in the preceding section, the n otice of lis pendens shall be deemed canceled upon the registration of a certifi cate of the clerk of court in which the action or proceeding was pending stating the manner of disposal thereof. NATURE, MEANING AND PURPOSE- NOTICE OF LIS PENDENS Section 76. Notice of lis pendens. No action to recover possession of real estat e, or to quiet title thereto, or to remove clouds upon the title thereof, or for partition, or other proceedings of any kind in court directly affecting the tit le to land or the use or occupation thereof or the buildings thereon, and no jud gment, and no proceeding to vacate or reverse any judgment, shall have any effec t upon ed land as against persons other than the parties thereto, unless a memorandum or notice stating the institution of such action or proceeding and the court wherein the same is pending, as well as the date of the institution t hereof, together with a reference to the number of the certificate of title, and an adequate description of the land affected and the ed owner thereof, shall have been filed and ed. NATURE AND PURPOSE OF LIS PENDENS > Lis pendens literally means a pending suit > Doctrine that refers to the jurisdiction, power or control which a court acqui res over a property involved in a suit, pending the continuance of the action, u ntil final judgment The purpose of lis pendens o To protect the rights of the party causing the registration of the lis pendens o 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 > May involve actions that deal not only with title or possession of a property but also with the use and occupation of a property

> The litigation must directly involve a specific property which is necessarily affected by the judgment > The notice of lis pendens is a notice to the whole world that a particular rea l property is in litigation. The inscription serves as a warning that one who ac quires interest over litigated property does so at his own risk, or that he gamb les on the result of the litigation over the property > A purchaser who buys ed land with full notice of the fact that it is i n litigation between the vendor and third party stands in the shoes of his vendo r and his title is subject to the incidents and results of the pending litigatio n The filing of lis pendens in effect o Keeps the subject matter of litigation within the power of the court until ent ry of final judgment so as to prevent the defeat of the latter by successive ali enations o Binds the purchaser of the land subject of the litigation to the judgment or d ecree that will be promulgated thereon whether such purchaser is a bona fide pur chaser or not o Doesn t create a non-existent right or lien > Purpose of this rule is founded on public policy and necessity EFFECT OF SUCH NOTICE 1. It keeps the subject matter of the litigation within the power of the court u ntil the entry of final judgment so as to prevent the defeat of the latter by su ccessive alienations 2. It binds the purchaser of the land subject of the litigation to the judgment or decree that will be promulgated thereon whether such purchaser is a bona fide purchaser or not > It is not correct to speak of it as part of the doctrine of notice, the purcha ser pendent elite is affected not by notice but because the law doesn t litigating parties to give to others, pending the litigation, rights to the property in di spute so as to prejudice the other party NOTICE IS ONLY AN INCIDENT IN THE MAIN CASE; MERITS THEREOF UNAFFECTED > A notice of lis pendens is ordinarily recorded without the intervention of the court where the action is pending > It is but an incident in an action, an extrajudicial one. It doesn t affect the merits thereof. NOTICE NEED NOT BE ANNOTATED ON THE OWNER S COPY > Annotation at the back of the original copy of the certificate of title on fil e with the RD is sufficient to constitute constructive notice to purchasers or o ther persons subsequently dealing with the same property > One who deals with property subject of a notice of lis pendens cannot invoke t he right of a purchaser in good faith neither can he acquire the rights better tha n those of his predecessor-ininterest NOTICE OF LIS PENDENS WHEN APPROPRIATE 1. Action to recover possession of real property 2. Action to quiet title thereto

3. Action to remove cloud thereon 4. Action for partition 5. Any other proceedings of any kind in court directly affecting the title to th e land or the use or occupation thereof or the buildings thereon NOTICE NOT PROPER IN THE FOLLOWING 1. Preliminary attachments 2. Proceedings for the probates of wills 3. Levies on execution 4. Proceedings for the istration of estate of deceased persons 5. Proceedings in which the only subject is the recovery of a money judgment CONTENTS OF NOTICE OF LIS PENDENS 1. A statement of the institution of an action or proceedings 2. The court where the same is pending 3. The date of its institution 4. A reference to the number of certificate of title of the land 5. An adequate description of the land affected and its ed owner PRINCIPLE OF PRIMUS TEMPORE, POTIOR JURE; EFFECT OF LIS PENDENS > The principle of primus tempore, potior jure gains greater significance in the law on double sale of immovable property > Reliance on the principle of constructive notice operates only such upon the r egistration of the notice of lis pendens > More fundamentally, a notice of lis pendens is only a warning to the prospecti ve purchaser or incumbrancer that the particular property is in litigation and t hat he should keep his hands off the same, unless he intends to gamble on the re sults of the litigation CARRY OVER OF NOTICE ON SUBSEQUENT TITLES > In case of subsequent transfers or sales, the RD is duty bound to carry over t he notice of lis pendens on all titles to be issued > Act of RD in erasing notice of lis pendens is in plain violation of his constitutes misfeasance in the performance of his duties for which he may d civilly and even criminally liable for any prejudice caused to innocent persons and cannot affect those who are protected by the notice inscribed original title

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INVOLUNTARY DEALINGS- Adverse Claim Section 70. Adverse claim. Whoever claims any part or interest in ed lan d adverse to the ed owner, arising subsequent to the date of the origina l registration, may, if no other provision is made in this Decree for in g the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of the cert ificate of title of theed owner, the name of the ed owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimant 's residence, and a place at which all notices may be served upon him. This stat ement shall be entitled to registration as an adverse claim on the certificate o f title. The adverse claim shall be effective for a period of thirty days from t he date of registration. After the lapse of said period, the annotation of adver se claim may be canceled upon filing of a verified petition therefor by the part y in interest: Provided, however, that after cancellation, no second adverse cla im based on the same ground shall beed by the same claimant.

Before the lapse of thirty days aforesaid, any party in interest may file a peti tion in the Court of First Instance where the land is situated for the cancellat ion of the adverse claim, and the court shall grant a speedy hearing upon the qu estion of the validity of such adverse claim, and shall render judgment as may b e just and equitable. If the adverse claim is adjudged to be invalid, the regist ration thereof shall be ordered canceled. If, in any case, the court, after noti ce and hearing, shall find that the adverse claim thused was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, th e claimant may withdraw his adverse claim by filing with the of Deeds a sworn petition to that effect ADVERSE CLAIM, PURPOSE > Purpose of annotating the adverse claim on the title of the disputed land is t o apprise third persons that there is a controversy over the ownership of the la nd and to preserve and protect the right of the adverse claimant during the pend ency of the controversy > Notice to third persons that any transaction regarding the disputed land is su bject to the outcome of the dispute > Such is ed by filing a sworn statement with the RD of the province whe re the property is located, setting forth the basis of the claimed right togethe r with other data pertinent thereto. The registration of an adverse claim is exp ressly recognized under Section 70. Where the notice of adverse claim is suffici ent in law and drawn up in accordance with existing requirements, it becomes the ministerial duty of the RD to the instrument without unnecessary delay > While the act of registration is the operative act which conveys or affects th e land insofar as third persons are concerned, the subsequent sale of property c overed by a certificate of title CANNOT PREVAIL OVER AN ADVERSE CLAIM, duly swor n to and annotated on the certificate of title previous the sale > Section 70 is divided into two parts first refers to the petition of the party w ho claims any part or interest in the ed land, arising subsequent to the date of the original registration, for the registration of his adverse claim, w hich is a ministerial function of the ofDeeds absent any defect on the face of the instrument. The second refers to the petition filed in court by a pa rty in interest for the cancellation of the adverse claim upon showing the same is invalid. REGISTRATION OF ADVERSE CLAIM > A lease over a parcel of land for a 10-year period, which could not be registe red because the owner s duplicate of title wasn t surrendered, could be ed a s an adverse claim and the owner couldn t be compelled to surrender the owner s dupl icate of the title to that adverse claim could be annotated thereon > If the adverse claim turns out to be invalid, the owner could ask for its canc ellation and, if found to be frivolous or vexatious, then costs may be adjudged against the adverse claimant. > The claim of a person that she has hereditary rights in the land fraudulently ed in his sister s name, because the land belonged to their mother whose e state is pending settlement in a special proceeding, is registrable as an advers e claim\ > Where a guardianship proceeding is pending in court, it is proper to annotate on the title of the land in question the pendency of such a proceeding by means

of a notice of lis pendens for the purpose of alerting anyone who might wish to buy the land that his purchase may be questioned later on. Since an adverse clai m and a notice of lis pendens have the same purpose, there would be no need of m aintaining the adverse claim. But a notice of levy cannot prevail over an existing adverse claim inscribed in the certificate of ti tle > The annotation of an adverse claim is a measure designed to protect the intere st of a person over a piece of real property where the registration of such inte rest or right isn t otherwise provided for by PD1529, and serves as a notice and w arning to third persons dealing with said property that someone is claiming an i nterest on the same or a better right than theed owner thereof > FOR THE SPECIAL REMEDY OF ADVERSE CLAIM TO BE AVAILED OF, IT MUST BE SHOWN THA T THERE IS NO OTHER PROVISION IN THE LAW FOR REGISTRATION OF THE CLAIMANT S ALLEGE D RIGHT IN THE PROPERTY. > An adverse claim of ownership over a parcel of land ed under the Torre ns system based on prescription and adverse possession cannot be ed as a n adverse claim no title to ed land in derogation of the title of the regi stered owner shall be acquired by prescription or adverse possession. Hence, the registration of such adverse claim will serve no useful purpose and cannot vali dly and legally affect the parcel of land in question. REQUISITES OF AN ADVERSE CLAIM 1. a. b. c. d.

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adverse claimant must state the following in writing alleged right or interest and under whom such alleged right or interest is acquired description of the land in which the riht or interest is claimed number of the certificate of title

2. The statement must be signed and sworn to before a notary public or other off icer authorized to ister oath 3. The claimant should state his residence or the place to which all notices may be served upon him REGISTRATION COURT MAY DETERMINE THE VALIDITY OF ADVERSE CLAIM > An adverse claim may be cancelled only after the claim is adjudged invalid and unmeritorious by the court while pason a case where the land involved is subject of the interest or right being secured by the adverse claim. ADVERSE CLAIM NOT IPSO JURE CANCELLED AFTER 30 DAYS; HEARING NECESSARY. > Sajonas v. CA > of Deeds cannot unilaterally cancel the adverse claim. There must be a court hearing for the purpose. The reason for this is to afford the adverse claimant an opportunity to be heard, providing a venue where the proprie ty of his claimed interest can be established or revoked, all for the purpose of determining at least the existence of any encumbrance on the title arising from such adverse claim. PURCHASER NOT BOUND BY ANY LIEN NOT ENTERED IN THE CERTIFICATE OF TITLE FORECLOS URE SALE RETROACTS TO REGISTRATION OF MORTGAGE > The settled doctrine is that the effects of a foreclosure sale retroact to the date of registration of the mortgage. > Hence, if the adverse claim is ed only after the annotation of the mor tgage at the back of the certificate of title, the adverse claim could not effec t the rights of the mortgagee; and the fact that the foreclosure ofthe mortgage and the consequent public auction sale have been effected long after the annotat

ion of the adverse claim is of no moment, because theforeclosure sale retroacts to the date of registration of the mortgage. REGISTRATION OF JUDGMENTS; ORDERS; PARTITIONS Section 78. Judgment for Plaintiff. Whenever in any action to recover possession or ownership of real estate or any interest therein affecting ed land j udgment is entered for the plaintiff, such judgment shall be entitled to registr ation on presentation of a certificate of the entry thereof from the clerk of co urt where the action is pending to the of Deeds for the province or cit y where the land lies, who shall enter a memorandum upon the certificate of titl e of the land to which such judgment relates. If the judgment does not apply to all the land described in the certificate of title, the certificate of the clerk of the court where the action is pending and the memorandum entered by the Regi ster ofDeeds shall contain a description of the land affected by the judgment. Section 79. Judgment adjudicating ownership. When in any action to recover the o wnership of real estate or an interest therein execution has been issued in favo r of the plaintiff, the latter shall be entitled to the entry of a new certifica te of title and to the cancellation of the original certificate and owner's dupl icate of the formered owner. If the ed owner neglects or refuses within a reasonable time after request of the plaintiff to produce his duplicat e certificate in order that the same may be canceled, the court shall, on applic ation and after notice, enter an order to the owner to produce his certificate a t the time and place designated, and may enforce the order by suitable process. Section 80. Execution of deed by virtue of judgment. Every court rendering judgm ent in favor of the plaintiff affecting ed land shall, upon petition of said plaintiff, order and parties before it to execute for registration any deed or instrument necessary to give effect to the judgment, and shall require the r egistered owner to deliver his duplicate certificate to the plaintiff or to the of Deeds to be canceled or to have a memorandum annotated upon it. In c ase the person required to execute any deed or other instrument necessary to giv e effect to the judgment is absent from the Philippines, or is a minor, or insan e, or for any reason not amenable to the process of the court rendering the judg ment, said court may appoint a suitable person as trustee to execute such instru ment which, when executed, shall be entitled to registration. REGISTRATION OF JUDGMENT- Recovery of Possession or Ownership > A judgment for the plaintiff in an action for the recovery of possession or ow nership affecting ed land shall be entitled to registration upon present ation of a certificate of entry from the clerk of court to the RD who shall ente r a memorandum upon the certificate of title covering the land subject of the ac tion > If only a portion of the land described in the certificate is affected by the judgment, the certificate of the clerk of court shall contain a description of t he portion involved > Registration is important to apprise third persons of the status of the land a ffected by the judgment REGISTRATION OF JUDGMENT ADJUDICATING OWNERSHIP > When in an action for recovery of possession judgment has been rendered in fav or of the plaintiff, the judgment shall likewise beed and the adjudicate e shall be entitled to the issuance of a new certificate of title upon cancellat ion of the title of the preceding owner EXECUTION OF DEED PURSUANT TO A JUDGMENT > The court, in all cases where it renders judgment affecting ed propert

y or any interest therein, shall direct parties to execute the requisite deed or instrument as may be necessary to give effect to the judgment of registration, and when required by the of the judgment, direct theed owner to su rrender his owner s duplicate certificate for cancellation or entry of the appropr iate memorandum thereon.

DISSOLUTION OF ATTACHMENTS OR LIENS AND REGISTRATION THEREOF > Where an attachment or lien is maintained, or discharged or dissolved by any m ethod provided by law, the certificate or instrument for the purpose shall be re gistered to give effect thereof > If the attachment or lien is maintained, discharged or dissolved by the order of the court, a certificate of the Clerk of Court as to the entry of such order shall also be ed PURPOSE OF REGISTRATION > Purpose is to notify third persons who may be affected in their dealings with respect to such property > The RD may properly deny the inscription of an order of attachment or levy of execution where the title to the property is not in the name of the judgment deb tor but of another person, and no evidence has been submitted that he has any in terest in the property Section 72. Dissolution, etc. of attachments, etc. Attachments and liens of ever y description upon ed land shall be continued, reduced, discharged and d issolved by any method sufficient in law, and to give effect to the continuance, reduction, discharge or dissolution thereof the certificate or other instrument for that purpose shall be ed with the of Deeds. Section 73. Re gistration of orders of court, etc. If an attachment is continued, reduced, diss olved, or otherwise affected by an order, decision or judgment of the court wher e the action or proceedings in which said attachment was made is pending or by a n order of a court having jurisdiction thereof, a certificate of the entry of su ch order, decision or judgment from theclerk of court or the judge by which such decision, order or judgment has been rendered and under the seal of the court, shall be entitled to be ed upon presentation to the ofDeeds.