Академический Документы
Профессиональный Документы
Культура Документы
Section 76. Notice of lis pendens. No action to recover possession of real estate, 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 title to land or the use or occupation thereof or the buildings
thereon, and no judgment, and no proceeding to vacate or reverse any judgment, shall have any
effect upon registered 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 thereof, together with a reference to
the number of the certificate of title, and an adequate description of the land affected and the
registered owner thereof, shall have been filed and registered.
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 acquires over a property
involved in a suit, pending the continuance of the action, until 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 real property is in
litigation. The inscription serves as a warning that one who acquires interest over litigated
property does so at his own risk, or that he gambles on the result of the litigation over the
property
> A purchaser who buys registered land with full notice of the fact that it is in litigation between
the vendor and third party stands in the shoes of his vendor and his title is subject to the
incidents and results of the pending litigation
The filing of lis pendens in effect
o Keeps the subject matter of litigation within the power of the court until entry of final judgment
so as to prevent the defeat of the latter by successive alienations
o 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
o Doesnt 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 until the entry of final
judgment so as to prevent the defeat of the latter by successive 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 purchaser pendent elite is
affected not by notice but because the law doesnt allow litigating parties to give to others,
pending the litigation, rights to the property in dispute 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 doesnt affect the merits thereof.
NOTICE NEED NOT BE ANNOTATED ON THE OWNERS COPY
> Annotation at the back of the original copy of the certificate of title on file with the RD is
sufficient to constitute constructive notice to purchasers or other persons subsequently dealing
with the same property
> One who deals with property subject of a notice of lis pendens cannot invoke the right of a
purchaser in good faithneither can he acquire the rights better than those of his predecessorininterest
NOTICE OF LIS PENDENSWHEN 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 the land or the use or
occupation thereof or the buildings thereon
NOTICE NOT PROPER IN THE FOLLOWING
1.
2.
3.
4.
5.
Preliminary attachments
Proceedings for the probates of wills
Levies on execution
Proceedings for the administration of estate of deceased persons
Proceedings in which the only subject is the recovery of a money judgment
> 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 registration of the
notice of lis pendens
> More fundamentally, a notice of lis pendens is only a warning to the prospective purchaser or
incumbrancer that the particular property is in litigation and that he should keep his hands off
the same, unless he intends to gamble on the results 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 the 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 duty, constitutes
misfeasance in the performance of his duties for which he may be held civilly and even criminally
liable for any prejudice caused to innocent third persons and cannot affect those who are
protected by the notice inscribed in the original title
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 Register of Deeds at the
instance of the party who caused the registration of the notice
> While the trial court has inherent power to cancel a notice of lis pendens, such power is
exercised under express provisions of law If the annotation was for the purpose of molesting
the
title
of
the
adverse
party
o When the annotation isnt necessary to protect the title of the party who caused it to be
recorded
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 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 registered. It may also be canceled by the Register 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 to the land and/or buildings involved, in any
case in which a memorandum or notice of lis pendens has been registered as provided in the
preceding section, the notice of lis pendens shall be deemed canceled upon the registration of a
certificate of the clerk of court in which the action or proceeding was pending
stating the manner of disposal thereof.
How to cancel a notice of lis pendens? Or a notice of lis pendens annotated on the a
landtitle?
Ordinarily a notice of lis pendens 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.
The plaintiff in the case at bar filed a MR which is still pending to date; thus, under normal
circumstances the notice of lis pendens cannot be cancelled. However, it may be cancelled if
anyof these circumstances is present:
If the annotation was for the purpose of molesting the title of the adverse party
When the annotation isnt necessary to protect the title of the party who caused it to be
recorded. It may be cancelled only upon order by the court or upon action by the Register of
Deeds at the instance of the party who caused the registration of the notice.
As stated in Sec. 77 of PD 1529, before final judgment, a notice of lis pendens may be canceled
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 tobe
registered
. It may also be canceled by the Register of Deeds upon verified petition of the party who caused
the registration thereof. In the case of Magdalena Homeowners vs. CA
(G.R. No. L-60323), the Court ruled that a notice of lis pendens is ordinarily recorded without the
intervention of the court where the action is pending. The notice is but an
incident in an action, an extra judicial one, and does not affect the merits thereof. It is intended
merely to constructively advise all people who deal with the property that they so deal with it at
their own risk, and whatever rights they may acquire in the property in any voluntary transaction
are subject to the results of the action, and may well be inferior and subordinate to those which
may be finally determined and laid down therein.
Thus, as applied in the case at bar, the dismissal of the action for the dismissal of the
defendants titledoes not entail the dismissal of the notice of lis pendens. The continuance or
removal of the notice of lis pendens is not contingent on the existence of a final judgment in the
action, and ordinarily has no effect on the merits thereof. Likewise in the case of Roxas vs.
Spouses Dy (G.R. No. 101728), the Court ruled thatcancellation of a notice of lis pendens, being a
mere incident to an action, may be ordered at any given time by the court having jurisdiction
over it. As the case at bar had properly come within the appellate jurisdiction of the Court of
Appeals because of the perfection of the plaintiffs appeal, it therefore had power to deal with
and resolve any incident in connection with the action subject of the appeal, even before final
judgment.
In short, it is the Court of Appeals which has the jurisdiction to hear the issue of cancellation of
notices of lis pendens.
April 4, 2001
To be sure, petitioner is not altogether precluded from pursuing a specific remedy, only
that
the
suitable
course
of
action
legally
available
is
not
judicial
but
rather
administrative. Section 77 of P.D. No. 1529 provides the appropriate measure to have a notice
of lis pendens cancelled out from the title, that is by presenting to the Register of Deeds, after
finality of the judgment rendered in the main action, a certificate executed by the clerk of court
before which the main action was pending to the effect that the case has already been finally
decided by the court, stating the manner of the disposal thereof. Section 77 materially states:
SEC. 77. Cancellation of lis pendens. Before final judgment, a notice of lis
pendens may be cancelled 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 registered. It may also be
cancelled by the Register 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 to the land and/or buildings involved, in any case in which
a memorandum or notice of lis pendens has been registered as provided in
the preceding section, the notice of lis pendens shall be deemed cancelled
upon the registration of a certificate of the clerk of court in which the
action or proceeding was pending stating the manner of disposal
thereof. [42]
No. The doctrine of lis pendens refers to the jurisdiction, power or control which a court acquires over a property involved
in a suit, pending the continuance of the action, and until final judgment. Its purposes are (1) to protect the rights of the
party causing the registration of the lis pendens, and (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. A notice of lis pendens is proper in
the following cases: (a) an action to recover possession of real estate; (b) an action to quiet title thereto; (c) an action to
remove clouds thereon; (d) and action for partition; and (e) and 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 (Magdalena etc. vs. CAS, 184 SCRA
325).
The notice of lis pendens should contain a statement of the institution of an action or proceeding, the court where the
same is pending, and the date of its institution. It should also contain a reference to the number of the certificate of title of
the land, an adequate description of the land affected and its registered owner (Section 76, PD 1526). In this case, the
heirs have not complied with the requisites. They are mere movants, not parties to an action contemplated by Section 76
of PD 1529; they failed to present the requisite original petition or complaint upon which the Register of Deeds will base its
action to annotate the lis pendens. A notice of lis pendens based on a motion filed in LRC Case no. 18887 to declare the
OCTs void is not registrable. Only a party to a case has the legal personality to file a notice of lis pendens relative to the
pending case. This motion is insufficient to give them standing in the land registration proceedings or purposes of filing an
application of a notice of lis pendens. It was filed only on November 25, 1998 long after the decision in LRC Case No.
18887 became final and executory. The decision of the Land Registration Court granting the application for registration of
title was dated May 31, 1966 and a certificate of its finality was issued on March 8, 1991.
Whatever persuasiveness might have been carried by the ruling on the issue of the learned Trial
Judge in 1961, the fact is that the nature of R.A. No. 1379 as penal was in 1962 clearly and
categorically pronounced by this Court in Cabal v. Kapunan, Jr. 14 Citing voluminous authorities,
the Court in that case declared that "forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his salary as such ... and his other lawful
income and the income from legitimately acquired property ... has been held ... to partake of the
nature of a penalty"; and that "proceedings for forfeiture of property although technically civil in
form are deemed criminal or penal, and, hence, the exemption of defendants in criminal cases
from the obligation to be witnesses against, themselves is applicable thereto. 15 The doctrine
was reaffirmed and reiterated in 1971 in republic v. Agoncillo. 16 And germane is the 1977 ruling
of the Court in de la Cruz v. Better Living, Inc. 17 involving among others the issue of the validity
and enforceability of a written agreement alleged to be in violation of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices-Act to the effect that "the provisions of
said law cannot be given retro active effect."
The forfeiture of property provided for in Republic Act No. 1379 being in the nature of a penalty;
and it being axiomatic that a law is ex-post facto which inter alia "makes criminal an act done
before the passage of the law and which was innocent when done, and punishes such an act," or,
"assuming to regulate civil rights and remedies only, in effect imposes a penalty or deprivation of
a right for something which when done was lawful," it follows that penalty of forfeiture prescribed
by R.A. No. 1379 cannot be applied to acquisitions made prior to its passage without running
afoul of the Constitutional provision condemning ex post facto laws or bills of attainder. 18 But
this is precisely what has been done in the case of the Katigbaks. The Trial Court declared certain
of their acquisitions in 1953, 1954 and 1955 to be illegal under R.A. No. 1379 although made
prior to the enactment of the law, and imposed a lien thereon "in favor of the Government in the
sum of P100,000.00." Such a disposition is, quite obviously, constitutionally impermissible.
As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena, should be made
answerable for damages because the filing of the forfeiture proceedings, Civil Case No. 31080,
resulted from a preliminary investigation which was allegedly conducted by Fiscal Lucena in an
arbitrary and highhanded manner, suffice it to state that the trial court found no proof of any
intention to persecute or other ill motive underlying the institution of Civil Case No. 31080. The
trial court further found that during the preliminary investigation by Fiscal Lucena on September
13, 19, 24, 25 and 26, 1956, Alejandro Katigbak was assisted by reputable and competent
counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere fact that the preliminary
investigation was terminated against the objection of Katigbak's counsel, does not necessarily
signify that he was denied the right to such an investigation. What is more, the Trial Court's
factual conclusion that no malice or bad faith attended the acts of public respondents
complained of, and consequently no award of damages is proper, cannot under established rule
be reviewed by this Court absent any showing of the existence of some recognized exception
thereto.