Discussion and conclusions - METRIC-AFFINE GAUGE THEORIES OF GRAVITY Foundations and new insigh

“and other similar remedies”:

~Reformation of instrument

~Quieting of title

~Consolidation of title

Although in the same Rule, they are governed by different procedures.

DECLARATORY RELIEF RULE 63

The obvious nature of declaratory relief, which makes it a special civil action, is that the petition must be filed before a breach or violation of a right. (If we would follow ordinary rules of procedure, the complaint would have been dismissed outright because of lack of a cause of action.) There is no allegation that there is a right violated by another. If there is such an allegation, then the action ceases to be a special civil action for declaratory relief, it becomes an ordinary action.

Declarative relief is a preventive mechanism to prevent parties from getting involved in an ordinary civil case. In Declarative relief , the petitioner does not allege he has a right, or if he has, it has not been violated, and therefore, there is really no cause of action. The petitioner seeks from the court a determination of what his rights are. Petitioner is not absolutely certain if he has rights under a certain instrument, so he asks the court to declare what his rights are. The actual remedy is that the court declares what his rights are.

If the remedy is the declaration of the rights of the petitioner, then a prayer for damages in declaratory relief negates the nature of such special civil action. Damages connote the fact that a breach or violation of a right has occurred.

There is an enumeration under Rule 63 (Section 1) as to the instruments which could be subjects of a petition for

declaratory relief; “deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation.”

With respect to statute or ordinance, the same principle applies, we cannot apply for a petition for declaratory relief if there is already a violation. If there is a violation already, the petition will not be proper. Declaratory relief must be had before such ordinance or statute has become effective. This is one of the reasons of the 30 day period (date of effectivity;

after publication) before a law that has been enacted by Congress has effect. The said time before such statute or

ordinance takes effect is the time for it to be subject to petition for declaratory relief, determining whether that statute or ordinance is constitutional or unconstitutional.

You will meet decisions of the SC concerning declaratory relief to the effect that you cannot file a motion for execution in order to carry out the declaratory judgment (the judgment in a case for declaratory relief), in order to differentiate it from what the court usually renders after a judgment has been entered in order to clarify the judgment. The latter is what we a clarificatory judgment. In a clarificatory judgment, that is where a judgment that has become final and executory but has certain ambiguities with that judgment. The remedy of the interested party is to file a motion for the rendition of a clarificatory judgment. This clarificatory judgment is different from a declaratory judgment. In declaratory judgment the court will only tell the petitioner what his rights and duties are under a certain will or contract. But in the case of a statute or ordinance, the court will tell the petitioner whether or not the statute or ordinance is unconstitutional or not. So after the court has done its duty, there is no more need for the prevailing party to return to the court in order to move for the execution. We do not apply Rule 39 to a petition for declaratory relief.

So, that is the nature of a declaratory relief that makes it a special civil action. There is really no cause of action as contemplated in ordinary civil actions where there is a right violated by the defendant.

Distinguish declaratory judgment from ordinary judgment.

DECLARATORY JUDGMENT ORDINARY JUDGMENT

Declaratory judgment stands by itself and no executory process follows

Ordinary judgment involves executor or coercive relief

Intended to determine any question of construction or validity prior to breach or violation

Intended to remedy or compensate injuries already suffered

What are the requisites of an action for declaratory relief?

1. Filing of Petition before there is a breach or violation

2. Subject matter is a deed, will, contract, written instrument, statute, executive order, regulation or ordinance

Note: The enumeration of the subject matter is exclusive, hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. (Riano, Civil Procedure: A Restatement for the Bar, p. 613, 2009 ed.)

3. There is justiciable controversy

4. Issue is ripe for judicial determination (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005), i.e. litigation is imminent and inevitable (Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951)

5. Adequate relief is not available through other means or other forms of action or proceedings (Ollada v. Central Bank, G.R.

No. L-11357, May 31, 1962)

6. The controversy is between persons whose interests are adverse.

Q: When may an action for declaratory relief be converted into an ordinary action?

A: After filing of petition for declaratory relief but before the final termination of the case or rendition of judgment, a breach or violation of an instrument, statute, executive order, regulation or ordinance takes place. (Sec. 6, Rule 63)

Q: Distinguish Ordinary Civil Action from Special Civil Action for Declaratory Relief.

1. Ordinary civil action – plaintiff alleges that his right has been violated by the defendant; judgment rendered is coercive in character; a writ of execution may be executed against the defeated party.

2. Special civil action of declaratory relief – an impending violation is sufficient to file a declaratory relief; no execution may be issued; the court merely makes a declaration.

The second procedural rule that we apply to declaratory relief which is not followed in other special civil actions or in other ordinary civil actions is the authority of the court not to entertain a petition for declaratory relief. The court can refuse to make a declaration of the rights of petitioner and respondents on a deed or a contract on the ground that the judgment will not bind the parties not impleaded in the petition for declaratory relief. This shows that declaratory relief is not in rem. It is purely a petition in personam. It cannot bind other parties who had not been impleaded, although these parties not so impleaded may be parties to the contract or matter under litigation.

When may a court refuse to make a judicial declaration?

A: Court may motu propio or upon motion refuse based on the following grounds:

1. A decision will not terminate the uncertainty or controversy which gave rise to the action 2. Declaration or construction is not necessary and proper under the circumstances

Note: Discretion to refuse does not extend to actions for reformation of an instrument quiet title or remove clouds or to consolidated ownership in a pacto de retro sale. (Regalado, Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)

Q: Can the court exercise discretion in application for declaratory relief?

1. In declaratory relief, the court is given the discretion to act or not to act on the petition. It may therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actually the functional equivalent of the dismissal of the petition.

2. On the other hand, the court does not have the discretion to refuse to act with respect to actions described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to consolidate ownership, the court cannot refuse to render a judgment (Sec. 5, Rule 63).

Q: Is a third-party complaint proper in an action for declaratory relief?

A: No. Because in a third-party complaint, such person seeks to obtain contribution, indemnity, subrogation or other reliefs and a declaratory relief is confined merely to the interpretation of the terms of a contract. (Commission of Customs v.

Cloribel, G.R. No. 21036, June 30, 1977).

Q: What are the instances wherein a declaratory relief is unavailable?

1. To obtain judicial declaration of citizenship;

2. To establish illegitimate filiation and determine hereditary rights;

3. The subject of the action is a court decision;

4. Actions to resolve political questions;

5. Those determinative of the issues rather than a construction of definite status, rights and relations;

6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;

7. In a petition to seek relief from a moot and academic question;

8. Where the contract or statute on which action is based has been breached;

9. When the petition is based on the happening of a contingent event;

10. When the petitioner is not the real party in interest; and

11. Where the administrative remedies have not yet been exhausted.

What is the competent court in a petition for declaratory relief?

Petition for declaratory relief is an action incapable of pecuniary estimation; hence RTC is the proper venue. However, as to who is the competent court in “other similar remedies”, take into account the provisions under BP 129:

~Reformation of instrument is cognizable solely by RTC as it is incapable of pecuniary estimation.

~Quieting of Title is not necessarily under the RTC. Actions involving title to property will depend on the value of the property. Under BP 129, actions involving title to or possession of the property may be cognizable by an RTC or MTC depending upon the assessed value of the property involved.

~Consolidation of title involves real property, hence, assessed value must be alleged to vest jurisdiction.

Q: What is an action for quieting title to real property?

A: This action is brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where the instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code).

Q: Is it required that the plaintiff be in the possession of the property before an action is brought?

A: The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code).

Why do we need to file a special civil action for consolidation of title?

In execution of judgment under Rule 39, if a real property is sold at public auction by virtue of a levy on execution, the highest bidder will not automatically get a title in his own name, merely a certificate of sale from the sheriff, which bidder must register such encumbrance in the RoD for annotation to the title of the property. He must wait one year. If there is no redemption after one year from registration in the RoD, the sheriff will issue a final deed of sale to the highest bidder and the highest bidder will have the final deed of sale recorded in the RoD. The RoD will determine whether the 1-year period has been met, and if there is no redemption, the highest bidder will naturally be interested in securing the title to the property in his name. The old title (still in the name of the judgment debtor) will be cancelled, and a new title will be issued in the name of the highest bidder. The highest bidder does not have to file an action for consolidation of title. The highest bidder will only secure from the sheriff the final deed of sale. The RoD will simply cancel the old title and issue a new title in the name of the highest bidder. So, in Rule 39, there is no such thing as consolidation of title as a special civil action.

This is also the procedure that is followed when a mortgage is foreclosed. Once the mortgage is foreclosed, the property is sold under auction to the highest bidder. The sheriff will issue a certificate of sale to be registered in the RoD, and then wait for the 1-year redemption period to expire. If there is no redemption, the sheriff will again issue a final deed of sale. And on the basis of that final deed of sale, the RoD will cancel the title of the judgment mortgagor and issue a new title in the name of the highest bidder.

So you will notice that under Rule 39 and even in the Mortgage Law, in order to consolidate title, we do not require a special civil action to consolidate title to be filed in court. The only public officer who is going to deal with the interested party is the RoD, who has the ministerial duty to issue a title if the papers are in order, in this case a final deed of sale.

Why do we require an action to consolidate under Article 1607 of the NCC?

NCC Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard.

NCC Art. 1616. The vendor cannot avail himself of the right of repurchase without returning to the vendee the price of the sale, and in addition:

(1) The expenses of the contract, and any other legitimate payments made by reason of the sale;

(2) The necessary and useful expenses made on the thing sold.

This is to obtain an order from the court for the RoD to consolidate the title of a property subject to sale with right to redeem, although the factual antecedents are the same. In the NCC Art. 1607, if there is a right to redemption, it is called conventional redemption, not a legal redemption as that in Rule 39 and in foreclosure of mortgage. It is that classification of redemption to conventional that makes the difference.

A conventional redemption has also a period for 1 year. When the 1-year period expires, the buyer of the property cannot deal directly with the RoD. The reason why there is a need to go to court in conventional redemption is that there is a provision in the NCC requiring it. It is explicitly stated in the NCC that sale with the right to redeem is not a sale but an equitable mortgage. So, insofar as the courts are concerned, if the contract entered by the parties is a sale with right to redeem by way of conventional redemption, the NCC assumes (a disputable presumption) that the real agreement between the parties is not really a sale but an equitable mortgage. Insofar as the NCC is concerned, the seller is not a genuine seller, only a mortgagor, and the buyer is the mortgagee of the property, notwithstanding the clear tone of the deed of sale with right of redemption. Even the RoD will have to observe the disputable presumption given by the NCC that the deed of sale with right of redemption is one of an equitable mortgage. So if we go to the RoD for consolidation of title, the RoD will simply tell the buyer of the property that the contract is one of equitable mortgage, not of sale, so there is a need to get a decision from the court declaring that contract is really a genuine contract of sale with right of redemption. That is the only purpose of this special civil action of consolidating of title under Art. 1607 NCC, to give to the buyer in sale with right of redemption a chance to present evidence to defeat that disputable presumption contained in the NCC. If he is able to convince the court that the sale is a genuine sale, the court will issue an order directing the RoD to cancel the title of the seller and issue a new title in the name of the buyer.

But if the petitioner/buyer fails to defeat the disputable presumption that the contract is one of equitable mortgage, he can still obtain a title, but he must file another special civil action. This time, the buyer must file an action for judicial

foreclosure of mortgage. Even if he is not able to obtain a decision under Rule 63 in order to consolidate title under Article

1607 NCC, that is not the end insofar as the buyer is concerned since he is an equitable mortgagee, so he still has the right to foreclose the property. The only means where he can foreclose the property is by availing of another special civil action, which is called foreclosure of real estate mortgage under Rule 68. But the procedure for judicial foreclosure of mortgage is quite lengthy, requiring 3 final orders of the foreclosure court, a sale via public auction for the property, and even if we assume that the mortgagee will become the highest bidder, he will get the title in his own name only after the confirmation by the foreclosure court of the sale in his favor is duly entered. As we will see later, judicial foreclosure of mortgage, as a complement to a special civil action for consolidation of title, is a 3-stage special civil action. Meaning to say, that the foreclosure court is expected to make three decisions/orders before the mortgagee can obtain a title in his name.

Q: What is the purpose of an action brought to consolidate ownership?

A: The action brought to consolidate ownership is not for the purpose of consolidating the ownership of the property in the person of the vendee or buyer but for the registration of the property. The lapse of the redemption period without the seller a retro exercising his right of redemption consolidates ownership or title upon the person of the vendee by operation of law. Art. 1607 requires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without judicial order (Cruz vs. Leis, 327 SCRA 570).

Note: The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished either by legal redemption (Art. 1619) or

conventional redemption (Art. 1601). Legal redemption (retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a co-owner of a property may exercise the right of redemption in case the shares of all the other co-owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall have the right of redemption when a piece of rural land with a size of one hectare or less is alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated by the statute but one which takes place because of the stipulation of the parties to the sale. The period of redemption may be fixed by the parties in which case the period cannot exceed ten (10)

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