What is Writ of Possession ?
here’s an issue that can take a long period of time to be prescribed by the court due to several unclear issues but hopefully with the cases noted below, all concerned parties can be guided accordingly and the uncertainty of the issue is then clearly identified to avoid any delays. take note that the “writ of possession” comes after a foreclosure and a redemption period of one year, both of which are the easy part of the case, it’s the writ of possession ( otherwise known as the time to evict ) that’s the difficult part !
A writ of possession is a writ of execution commanding the sheriff to enter the land and give possession thereof to the person entitled under the judgment. [Moreno, Phil. Law Dictionary (3rd Ed. 1988) 1014] It issues under the following circumstances: (1) land registration proceedings under Sec. 17 of Act No. 496; (2) judicial foreclosure provided the debtor is in possession of the mortgaged property and no third person, not a party to the foreclosure suit, had intervened; and (3) extrajudicial foreclosure of a real estate mortgage under Sec. 7 of Act No. 3135, as amended. The case at bar falls under the second cited instance.
In De Gracia v. San Jose, [94 Phil. 623 (1954), cited in Ong v. Court of Appeals, 333 SCRA 189 (2000)] we held that under Section 7 of Act No. 3135, as amended, the order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the court. Any and all questions regarding the regularity and validity of the sale is left to be determined in a subsequent proceeding and such questions may not be raised as a justification for opposing the issuance of a writ of possession.
In Navarra v. Court of Appeals,[ G.R. No. 86237, December 17, 1991, 204 SCRA 850] we ruled that the purchaser at an extrajudicial foreclosure sale has a right to the possession of the property even during the one-year period of redemption provided that he files an indemnity bond. After the lapse of said period with no redemption having been made, the right becomes absolute and may be demanded without the posting of a bond. Then inVaca v. Court of Appeals, [G.R. No. 109672, July 14, 1994, 234 SCRA 146] we reaffirmed our ruling in Navarra.
It is thus clear that during and after the period of redemption, the purchaser at a foreclosure sale is entitled as of right to a writ of possession. Thus, in Kho v. Court of Appeals, [G.R. No. 83498, October 22, 1991, 203 SCRA 160] we ruled that an injunction to prohibit the issuance of a writ of possession is utterly out of place. And once the writ of possession has been issued, the court has no alternative but to enforce the said writ without delay.
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Robert G. Sarmiento Properties
Professional Affiliation :
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Member, City of Taguig Real Estate Board 2016, 2017
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President, Greenhills Chapter 2008, 2009
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