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Demand in unlawful detainer cases


Section 2. Lessor to proceed against lessee only after demand. — Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings. (Rule 70, Rules of Court)


Manner of demand required

1. Where the suit is based on the defendant's failure to pay the rentals agreed upon, the proper demand should be "to pay and to vacate" and not "to pay or to vacate." A demand in the alternative ("pay or vacate") does not make out an action for unlawful detainer but merely one for collection of a sum of money

2. Where the suit is predicated upon the defendant's non-compliance with the conditions of the lease contract, the proper demand should be "to comply. . . and to vacate" and not "to comply.. or to vacate. The latter type of demand gives rise to an action for specific performance, not unlawful detainer.

● As contemplated in Section 2, the demand required is the demand to pay or comply with the conditions of the lease and not merely a demand to vacate. Consequently, both demands - either to pay rent or adhere to the terms of the lease and vacate are necessary to make the lessee a deforciant in order that an ejectment suit may be filed. It is the lessor's demand for the lessee to vacate the premises and the tenant's refusal to do so which makes unlawful the withholding of the possession. Such refusal violates the lessor's right of possession giving rise to an action for unlawful detainer. However, prior to the institution of such action, a demand from the lessor to pay or comply with the conditions of the lease and to vacate the premises is required under the aforequoted rule. Thus, mere failure to pay the rents due or violation of the terms of the lease does not automatically render a person's possession unlawful. Furthermore, the giving of such demands must be alleged in the complaint, otherwise the MTC cannot acquire jurisdiction over the case. (Arquelada v. Philippine Veterans Bank, G.R. No. 139137, March 31, 2000)

● In Barrazona vs. RTC of Baguio, in an action for a sum of money in the Regional Trial Court, defendant filed with the RTC a Motion to Dismiss on the ground, among others, that the RTC has no jurisdiction over the complaint because the allegations of the complaint clearly indicate that the action is one for ejectment (illegal detainer) which is under the exclusive jurisdiction of MTC. A perusal of the allegations indeed shows that plaintiff made several demands upon petitioner to pay her overdue rentals and to vacate the premises. These allegations make out a case of unlawful detainer and not of an action for a sum of money even if the alleged arrears is over P900,000.00.


Form of demand

The demand may be in the form of a written notice served upon the person found in the premises. The demand may also be made by posting a written notice on the premises if' no person can be found thereon (Sec. 2, Rule 70, Rules of Court).

It has been ruled however, that the demand upon a tenant may be oral (Jakihaca us. Aquino, 181 SCRA 67). Sufficient evidence must be adduced however, to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses.


In case several demands to vacate were made, how should the one-year reglementary period be reckoned?

In case several demands to vacate are made, the period is reckoned from the date of the last demand, the reason being that the lessor has the right to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. (Republic vs. Sunvar Realty Corporation, G.R. No. 194880, June 20, 2012)


What is the effect of non-compliance with the demand

If the demand is not complied with after fifteen (15) days in the case of land or five (5) days in the case of buildings, the lessor may now proceed against the lessee (Sec. 2, Rule 70, Rules of Court).

Illustration:

Juan Santos, who is leasing an apartment unit in Antipolo, Rizal from Maria Cruz, a resident of Quezon City, under a five (5) year contract expiring on October 15, 1991, is in arrears in his rent for three months as of August 15, 1990. Maria Cruz, through counsel, sends a demand letter to Juan Santos. Suppose that Juan Santos, upon receipt of the letter of demand to pay and vacate the apartment unit, immediately pays the rentals in arrears. He claims that he was so busy with his business that he neglected to pay his rent. May Maria Cruz still file an unlawful detainer case against Juan Santos? Discuss with reasons. (Bar 1990)

Suggested answer.

Maria Cruz may still file an unlawful detainer case. The failure to vacate after a demand to pay and vacate gave rise to a cause of action in favor of the lessor. The subsequent payment did not cure his unlawful withholding of possession of the premises. Hence the lessor can now file an action for ejectment. 


When is prior demand not required in unlawful detainer cases?

As a rule, demand is required only when the ground for ejectment is failure to pay rent or to comply with the condition of the lease.

Demand is not required when: 
  1. There is a stipulation dispensing with a demand (Art. 1169, Civil Code), or 
  2. The ground for the suit is expiration of the lease because when the lease expires the cause of action for unlawful detainer immediately arises.

    However, when the lease is on a month-to-month basis, demand to vacate is required to terminate the lease upon the expiration of the month in order to prevent the application of the rule of tacita reconduccion or implied new lease. 

Illustration: 

On 10 January 1990, X leased the warehouse of A under a lease contract with a period of five (5) years. On 08 June 1996, A filed an unlawful detainer case against X without a prior demand for X to vacate the premises. Can X contest his ejectment on the ground that there was no prior demand for him to vacate the premises? (Bar 1997)

Suggested answer:

X cannot successfully contest his ejectment on the ground of absence of a demand. By the time the action was filed, the lease had already expired. Demand to vacate is not required when the ground for the suit is based on the expiration of the lease because when the lease expires the cause of action for unlawful detainer immediately arises.

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