Eviction Steps for Unauthorized Occupants of Mortgaged Ancestral Property in the Philippines

This article explains, end-to-end, how to lawfully remove unauthorized occupants from an ancestral home or parcel that is (a) part of a Philippine estate and (b) subject to a mortgage or foreclosure. It covers ownership and succession basics, possession remedies (ejectment and beyond), barangay conciliation, foreclosure-specific writs of possession, defenses you may face, demolition, special rules on the family home and informal settlers, and practical checklists. It is general information—not legal advice.

1) Clarify the legal landscape first

A. “Ancestral property” in succession

Heirs become co-owners by operation of law from the decedent’s death until partition. Each heir holds an ideal (undivided) share; no heir may exclusively appropriate the whole.
If no court settlement yet, the estate may be settled extrajudicially (Rule 74) if there are no debts (or all settled) and the heirs are of legal age (or duly represented). Otherwise, a judicial settlement is needed.
Co-ownership rules apply:
- A co-owner may use and possess the common property in proportion to his share and without excluding the others.
- A co-owner may sue a stranger (non-co-owner) in ejectment to recover possession for the co-ownership.
- If the adverse possessor is another co-owner, the remedy is usually partition / reconveyance / accounting, not simple ejectment—unless that co-owner’s acts amount to an ejectment-type dispossession.

B. Mortgaged property overlay

A valid real estate mortgage burdens the property regardless of it being “ancestral.”
If foreclosure happens:
- Extrajudicial foreclosure (Act No. 3135): After sale and upon consolidation (or even after sale with sufficient proof), the purchaser (often the mortgagee) may obtain a writ of possession—a summary remedy to be placed in physical possession.
- Judicial foreclosure: There is equity of redemption before confirmation of sale, and after confirmation title/possession transfer.
Family home: Not exempt against mortgage debts contracted at the time of (or before) constitution of the family home. Thus, a family-home defense does not bar a foreclosure purchaser’s writ of possession when the mortgage is valid.

2) Identify the type of “unauthorized occupant”

Strangers / informal settlers: no title or permission.
Tenants or caretakers whose lease/authority expired or was revoked.
Relatives or heirs occupying without the other co-owners’ consent.
Holdovers after foreclosure (mortgagor, family, tenants) resisting delivery to the purchaser.

The category determines the remedy and forum.

3) Choose the right civil remedy (with timelines)

A. Interdictal actions (ejectment) – speedy, possession-focused

Filed in MTC/MeTC.

Forcible Entry – You were dispossessed by force, intimidation, threat, strategy, or stealth. Deadline: within 1 year from the dispossession, or from discovery if by stealth.
Unlawful Detainer – Occupation began lawfully (e.g., tolerance, lease, caretaking) but became illegal upon demand to vacate. Deadline: within 1 year from last demand to vacate.

Relief: restitution of possession, reasonable compensation for use (rents), attorney’s fees/costs, and writ of demolition if structures must be removed.

Why choose ejectment? It’s fast, summary in nature, and judgments are immediately executory unless the losing party perfects an appeal with supersedeas bond and deposits current rents.

B. Beyond one year or when ownership is central

Accion Publiciana (recovery of the right to possess): RTC jurisdiction; used when dispossession has lasted beyond 1 year or when the issues exceed ejectment’s scope.
Accion Reivindicatoria (recovery of ownership) and/or Partition: RTC; useful if the dispute is really about title among heirs or when you need partition + accounting of fruits.

C. Foreclosure-specific: Writ of Possession

If the property was extrajudicially foreclosed, the purchaser (mortgagee or buyer) may apply ex parte in the RTC for a writ of possession. It is typically ministerial upon proof of sale/consolidation and posting of the required bond (when applicable).
Exception: A person in possession with an adverse, independent title (not a successor of the mortgagor) may not be summarily ousted by a writ; a separate case is needed. Heirs, tenants, and successors of the mortgagor are not independent third parties and may be ejected by the writ.

4) Barangay conciliation (Katarungang Pambarangay)

Before filing most civil cases, parties residing in the same city/municipality must undergo barangay mediation/conciliation (unless an exception applies: e.g., real parties not residents of the same LGU, urgent legal action like writ of possession applications, cases with the government as a party, or where provisional remedies are urgently needed).

Tip: If you intend to file unlawful detainer or forcible entry, check if barangay conciliation is required and obtain a Certificate to File Action if settlement fails.

5) Step-by-step eviction pathway

Step 1 — Title & mortgage due diligence

Certified true copy of TCT/OTC, latest tax declaration, mortgage contract, foreclosure documents (notice of sale, certificate of sale, affidavit of consolidation, owner’s duplicate TCT), estate documents (death certificate, list of heirs, extrajudicial settlement or pending special proceedings).
Determine if the property is a family home, and if the mortgage pre-dated or included it.
Identify possession timeline and how possession began (tolerance? lease? force?).

Step 2 — Formal demand to vacate (when needed)

Serve a written demand (personal + registered mail) giving a reasonable period (e.g., 10–15 days) to vacate and to pay use and occupation.
For unlawful detainer, this triggers the 1-year clock from last demand.

Step 3 — Barangay process (if applicable)

File a complaint at the Punong Barangay. Attend mediation/conciliation. Secure a Certificate to File Action if unsettled.

Step 4 — File the proper action

Ejectment (MTC/MeTC): attach title evidence (or tax dec if unregistered), demand letters, photos, affidavits, barangay certificate.
- Consider provisional relief: preliminary mandatory injunction to restore possession if you were ousted by force or stealth.
Accion Publiciana/Reivindicatoria/Partition (RTC): when beyond 1 year or co-owner disputes predominate.
Writ of Possession (RTC): for foreclosure purchasers. Often ex parte; sheriff implements the writ.

Step 5 — Judgment and execution

Ejectment judgments are immediately executory unless the defendant perfects appeal + posts supersedeas bond + deposits rents. If they fail, move for immediate execution.
Demolition: If occupants refuse to vacate, seek a writ of demolition. Courts will typically:
- Verify notice and reasonable period to vacate,
- Address good-faith builder issues (see below),
- Coordinate with LGUs if informal settler families are involved (see UDHA notes).

6) Special topics that commonly arise

A. Good-faith builders and improvements (Civil Code Art. 448 & related)

If a possessor built in good faith, the landowner must choose: (i) appropriate the improvement upon indemnity, or (ii) require removal by the builder and pay damages if removal impossible without damage.
In ejectment, courts may order removal and/or set indemnity; disputes can continue in separate accounting proceedings.

B. Family home defenses

The family home is generally exempt from execution, forced sale, or attachment—except for mortgage debts contractually secured by the family home or taxes, or other statutory exceptions.
Thus, a valid mortgage on the family home allows foreclosure and possession transfer by writ of possession.

C. Informal settlers and UDHA (RA 7279)

Where occupants are underprivileged and homeless citizens, evictions/demolitions require prior notice, consultation, and coordination and, in certain cases, relocation by LGUs.
Court-ordered ejectment is still enforceable, but sheriffs follow UDHA protocols; plan timelines accordingly.

D. Criminal trespass

Article 280 (Qualified Trespass to Dwelling) and related provisions can apply to violent or stealthy entries.
This is separate from civil ejectment and should be evaluated carefully (e.g., to avoid escalation in family disputes).

E. Tax declarations & possession

Tax declarations support claims but are not conclusive of ownership. Continuous actual possession evidence (affidavits, utility bills, photos) strengthens your case for damages for use and counters “tolerance” narratives.

F. Co-owners versus co-owners

You cannot eject a co-owner via simple ejectment unless your ejectment theory is about recent dispossession (e.g., they ousted you by force).
If the dispute is “who owns what,” go to partition and accounting (and possibly reconveyance).

7) Defenses you will likely face—and how to address them

“We were allowed to stay” (tolerance) → Convert to unlawful detainer; show last demand date and earlier tolerance.
“We are co-owners/heirs” → Clarify that co-owners may not exclude others; seek partition/accounting or tailor ejectment if there was recent ouster.
“Family home, can’t evict” → Rebut with mortgage exception or show the home was not validly constituted/no qualifying occupants at constitution.
“We bought from X” → If post-mortgage/post-lis pendens transfer, likely subordinate. Show chain of title and mortgage priority.
“We built in good faith” → Seek removal or indemnity options; don’t ignore Art. 448 implications.
“We’re informal settlers” → Respect UDHA protocols; execution continues with notice/coordination.

8) Practical timelines and forum guide

Demand to vacate: give 10–15 days (or what’s reasonable for your case).
Ejectment filing: within 1 year (for FE/UD).
Appeal (ejectment): 15 days from receipt of judgment; supersedeas bond + periodic deposits required to stay execution.
Writ of possession (foreclosure): typically summary/ex parte; implementation may take weeks depending on sheriff’s schedule and UDHA coordination.

9) Evidence & document checklist

Identity & authority: SPA/board resolution if representative; IDs of affiants.
Ownership & encumbrances: TCT/OTC (CTC copies), mortgage contract, foreclosure papers (notice of sale, certificate of sale, consolidation), annotation pages.
Estate: death certificate, heirship proofs, extrajudicial settlement or case docket of special proceedings.
Possession history: photos, dated videos, neighbors’ affidavits, utility bills, barangay certifications.
Occupation basis: lease/caretaker agreements, text messages, demand letters with proofs of service.
Damages for use: market rental assessments, broker affidavits, prior rent receipts, tax records for fair rental value.
Conciliation: Punong Barangay minutes and Certificate to File Action (if required).

10) Drafting pointers (templates)

A. Demand to Vacate (skeleton)

Re: Demand to Vacate and Pay Reasonable Compensation for Use Date: _____ To: _____ (Occupant) Address: _____

We are the registered owners / authorized representatives of TCT No. ___ covering [property description]. Your occupation began by [tolerance/lease/caretaking], which is hereby revoked.

Demand: Vacate and peacefully surrender the premises within 15 days from receipt; pay ₱___ per month from [date] until actual vacate, plus utilities and damages for use.

Failure to comply will leave us no choice but to file the appropriate ejectment and seek demolition and damages.

Very truly yours, [Name/Capacity]

B. Petition for Writ of Possession (key allegations)

Jurisdictional facts (foreclosure mode, venue).
Copy of mortgage, notice of sale, certificate of sale, affidavit of consolidation / new title.
Statement that occupants are successors-in-interest of mortgagor or have no independent adverse title.
Prayer for issuance of writ of possession and break-open authority if needed, subject to sheriff rules.

11) Execution and demolition essentials

Sheriff’s return details attempts to serve the writ.
Demolition:
- If structures stand, the court issues a special order of demolition after due notice and hearing.
- For good-faith builders, the court may condition demolition on payment/indemnity or provide removal period.
- For informal settlers, UDHA protocols: 30-day notice, presence of social workers, and relocation if qualified (LGU-coordinated).
Break-open authority may be granted upon proper justification.

12) Damages & accounting

Reasonable compensation for use (often pegged to prevailing rent) from date of demand or unlawful occupation until surrender.
Attorney’s fees and costs when warranted.
In co-ownership disputes, seek accounting of fruits and rents received by the excluding co-owner.

13) Common pitfalls

Missing the 1-year ejectment window, forcing you into slower RTC actions.
Skipping barangay conciliation where required—can cause dismissal.
Suing co-owners in simple ejectment when the real need is partition.
Ignoring UDHA requirements at execution—can delay demolition.
Overlooking the family home mortgage exception, weakening or misframing your pleadings.
In writ-of-possession cases, failing to address alleged third-party adverse claimants (prepare to show they are successors of mortgagor, not independent claimants).

14) Decision map (quick guide)

Is there a foreclosure purchaser?
- Yes → Writ of Possession (RTC); oppose only valid third-party adverse claims.
- No → proceed below.
How did possession start?
- Force/stealth → Forcible Entry (MTC) within 1 year.
- By tolerance/lease/caretaker → send demand → Unlawful Detainer within 1 year from last demand.
- >1 year elapsed or issues of title dominate → Accion Publiciana/Reivindicatoria (RTC).
- Occupant is a co-owner excluding others → Partition & Accounting (RTC) or ejectment if there was recent ouster.
Barangay prereq applies? If yes, mediate first.
Execution: secure writ of execution; if needed, demolition, observing UDHA/Art. 448 considerations.

15) Frequently asked questions

Q: We’re heirs but one sibling won’t leave. Can we eject them? If there’s no recent ouster, that’s a co-ownership issue—file partition/accounting. If they recently dispossessed you by force/strategy, forcible entry may apply within 1 year.

Q: The house is our family home—can the bank still evict after foreclosure? Yes, if the family home was mortgaged, the mortgage/foreclosure prevails. The foreclosure buyer may obtain a writ of possession.

Q: Do we need to go to the barangay first? Often yes if parties live in the same city/municipality, unless an exception applies (e.g., writ of possession, urgent injunctions, different LGUs).

Q: Can we call the police to throw them out? Police may maintain peace, but eviction requires court process (ejectment/writ).

Q: Can we get paid for use of the property? Yes, claim reasonable compensation (rental value) and damages from demand or unlawful occupation.

16) Ready-to-use action plan (checklist)

Get CTC of title, mortgage/foreclosure papers, and estate documents.
Map possession history; categorize the occupant.
Issue demand to vacate (keep proof of service).
Barangay: file, attend, secure Certificate (if required).
File the right case (MTC ejectment / RTC publiciana/reivindicatoria/partition / Writ of Possession).
Seek provisional relief if ouster was by force/stealth.
After judgment, move for execution; obtain demolition order if needed.
Coordinate UDHA protocols and sheriff logistics.
Pursue damages / accounting as appropriate.

Final notes

Early case framing—choosing between ejectment vs. RTC remedies vs. writ of possession—is crucial to speed and success.
Keep timelines (especially the 1-year ejectment window) front-of-mind.
In foreclosure scenarios, leverage the writ of possession route where available; in heir-versus-heir disputes, consider partition/accounting for a lasting solution.