Neighbor Encroachment and Building Without Title on Undivided Land (Philippines)

Legal remedies and practical steps to stop construction

1) The core legal ideas

Ownership and possession.

Ownership includes the right to enjoy and dispose of property and to exclude others (Civil Code arts. 428–429).
Possession has legal protection even against the true owner, until the owner vindicates rights through proper actions (arts. 539–541).

Encroachment.

Encroachment generally means a structure or improvement intruding beyond the builder’s lot and into a neighbor’s land—or into a portion of land the builder does not exclusively own (e.g., co-owned or still undivided estate).
It can be horizontal (building footprint crossing a boundary), vertical (overhangs, eaves, balconies), or subterranean (footings, foundation).

Accession and “builder/planter/sower.”

Civil Code arts. 445–455 govern improvements made on land by a builder in good faith (honest belief of ownership) vs. bad faith (knowing the land is not theirs).
Consequences differ sharply depending on good/bad faith (see §6).

Co-ownership / undivided land.

When land is undivided (co-owned by heirs or co-owners), no one may appropriate, delimit, fence, or build on a specific portion without the consent of the others or without partition (arts. 484–501; esp. arts. 494–498).
Each co-owner owns an ideal/undivided share; unilateral exclusive use of a definite area can be restrained, and the usual ultimate remedy is partition.

Permits and building regulation.

National Building Code (PD 1096) and its IRR require a building permit and authorize officials to issue Notice/Order to Stop Work and demolition for illegal structures.
Local zoning ordinances and subdivision rules may impose setbacks, height limits, and easements (e.g., road right of way, drainage, natural waterway, party walls).

Criminal overlays (case-by-case).

Usurpation of real rights / occupation of real property when done with violence or intimidation (Revised Penal Code art. 312).
Altering boundaries or landmarks (art. 313).
Malicious mischief (art. 327) if there is willful damage. These are optional avenues, often secondary to civil/administrative remedies.

2) Typical situations

A neighbor’s wall/house intrudes beyond the boundary.
- Usually calls for relocation survey, demand to vacate/remove, and either ejectment (if within one year of dispossession/entry) or accion publiciana/reivindicatoria (if beyond one year or also involving ownership).
- Injunction and stop-work orders (administrative and judicial) are used to halt ongoing construction.
A co-owner (heir/sibling) is building on undivided property without the others’ consent.
- Immediate remedies: barangay conciliation, administrative stop-work (no permit/violations), injunction, and eventually partition (judicial or extrajudicial) with accounting and damages.
A builder on the wrong lot claims good faith.
- Art. 448 regime applies (see §6). Courts may require the landowner to choose between appropriating the improvement (with indemnity) or selling the encroached land to the builder (subject to equity limits); if the builder is in bad faith, removal and damages are typical.

3) Evidence you will need (checklist)

Title or proof of ownership/rights: TCT/OCT, Deed, Extrajudicial Settlement (Rule 74), tax declarations (corroborative).
Approved survey plan and technical descriptions: old and new; relocation survey signed by a licensed geodetic engineer.
Building documents: building permit, locational/zoning clearance, approved plans; or proof of lack thereof.
Photos/videos, measurement logs, witness affidavits (including the surveyor), and correspondence.
Barangay records: complaint, minutes, Certificate to File Action (CFA) if mediation fails.
Proof of injury/damages: blocked access, lost use, rent value, repairs, cost-to-cure, professional fees.

4) Immediate steps to stop ongoing construction

Secure a relocation survey to confirm encroachment with coordinates and monuments.
Send a formal demand/cease-and-desist letter (courteous but firm), attaching survey extracts and setting a short compliance window.
Barangay conciliation (Katarungang Pambarangay) if parties reside in the same city/municipality and the dispute is not among the exceptions. Obtain CFA if unresolved.
Administrative route under PD 1096:
- File a complaint with the Office of the Building Official (OBO)/City Engineer for lack of permit, deviation from approved plans, or safety violations.
- Request a Notice of Violation and Stop-Work Order. These can be swift and practical.
Judicial remedies (often in parallel with #4):
- File Civil Action seeking Temporary Restraining Order (TRO) and Preliminary Injunction to preserve the status quo and stop construction.
- Post bond as required. Prepare to show: (a) a clear legal right; (b) material/irreparable injury; (c) urgency; and (d) that the injunction maintains status quo.

5) Choosing the right civil action

A) Ejectment (Forcible Entry / Unlawful Detainer)

When: You were dispossessed or your possession was disturbed within the last 12 months (counted from entry, or from discovery if entry was stealthy; for detainer, from last demand).
Where: First-level courts (MTC/MTCC/MCTC).
Relief: Restitution of physical possession (possession de facto), damages/rent, and writ of demolition after judgment.
Speed: Summary procedure; ideal to quickly restore possession or remove encroaching structures in small disputes.

B) Accion Publiciana (Recovery of the right to possess)

When: More than one year has lapsed since dispossession, or the case is not suited to ejectment.
Where: Regional Trial Court.
Relief: Possession de jure, damages, and demolition if needed.

C) Accion Reivindicatoria (Recovery of ownership/Title)

When: Ownership is the central issue (e.g., boundary overlap disputes where title lines are contested).
Where: Regional Trial Court.
Relief: Declaration of ownership, recovery of possession, damages, demolition.

D) Injunction (Standalone or ancillary)

Purpose: Stop construction now to avoid a fait accompli. Seek TRO/Preliminary Injunction at filing; make sure your survey + affidavits are strong.

E) Partition (for undivided/co-owned land)

When: A co-owner is appropriating a portion (building/fencing) without consent.
Options:
- Extrajudicial partition (if all heirs/co-owners consent, with proper publication/bond if Rule 74 applies).
- Judicial partition if there is no agreement, possibly with accounting of fruits/rents and damages for exclusive use.
Interim relief: Injunction to restrain further building until partition or agreement.

F) Quieting of Title / Reconveyance

When: To correct overlaps or clouds on title (e.g., erroneous technical descriptions).

6) Consequences under the Civil Code for encroaching builders

Key distinctions

Builder and landowner both in good faith: Apply Art. 448. The landowner chooses either to:
1. Appropriate the improvement by paying necessary and useful expenses (indemnity), or
2. Sell the land portion to the builder (price determined by court if parties disagree).
- Courts balance equities: if the land’s value is disproportionately greater than the improvement, compelling a sale may be inequitable; courts may fix terms or allow removal if payment is not feasible.
Builder in bad faith; landowner in good faith (most encroachment cases):
- The landowner may demand removal at the builder’s expense plus damages (arts. 449–450).
- Materials of the bad-faith builder may be forfeited without indemnity.
Both in bad faith / landowner in bad faith: Specialized rules (arts. 451–455) apply; often the courts still aim for equity but do not reward bad faith.

Vertical encroachments (eaves, balconies, beams) are treated similarly. Even minor intrusions can justify removal and damages, especially if done in bad faith.

7) Special notes for undivided/co-owned property

No exclusive building without consent. Each co-owner has a right to use the whole, but must not prejudice the others (art. 486). Exclusive appropriation of a definite area (e.g., pouring a foundation and fencing it off) can be enjoined.
Expenses and fruits. A co-owner who made necessary/ useful improvements in good faith may seek reimbursement upon partition; a co-owner who excluded others may owe rent/fruits and damages.
Partition is always available (art. 494), subject to exceptions (e.g., when it will render the thing unserviceable). Partition may be in kind (by metes and bounds) or by sale with proceeds divided.
Estate of deceased owner. Until settlement/partition, heirs are co-owners; unilateral building has the same constraints. Rule 74 extrajudicial settlements must follow publication/bond rules; otherwise, they can be attacked by heirs/creditors.

8) Administrative levers that work (often faster than court)

Office of the Building Official (OBO)
- File a complaint for building without permit or deviations from approved plans.
- Request inspection, Stop-Work Order, and, if warranted, demolition under PD 1096.
- Useful even when you are still arranging surveys or barangay mediation.
Zoning / Planning Office
- Check for setback and easement violations; obtain enforcement actions.
Subdivision / HOA
- Use deed restrictions and architectural control rules; HOAs can issue cease & desist under their by-laws and refer to the LGU.
Barangay
- Immediate mediation; capture admissions; secure a Certificate to File Action if settlement fails—often needed before filing in court.

9) Litigation playbook and remedies you can ask for

TRO and Preliminary Injunction (to stop the work).
Final Injunction (to permanently restrain encroachment).
Ejectment/Publiciana/Reivindicatoria (as appropriate).
Demolition/Writ of Demolition (post-judgment or via OBO orders).
Damages:
- Actual (repairs, survey costs, lost use, rent value, cost-to-cure).
- Moral and exemplary (if bad faith, harassment, or oppressive conduct is proven).
- Attorney’s fees (when the case fits the exceptions).
Accounting and Rentals for exclusive use of co-owned property.
Partition with project of partition and appointment of commissioners if needed.
Annotation of lis pendens on the title to warn third parties while the case is pending (Land Registration Decree).

10) Practical, step-by-step approach (field guide)

Step 1: Confirm the facts.

Commission a relocation survey; obtain a survey report with sketch and coordinates.
Pull copies of titles/technical descriptions for both lots; check prior surveys, monuments, and adjoining owners’ data.

Step 2: Paper trail.

Write a formal demand (tone: solution-oriented) asking to: stop work, remove encroachment, or meet to agree on setbacks or purchase/lot line adjustment. Give a definite deadline.

Step 3: Barangay route.

File for conciliation; gather minutes and CFA if unresolved.

Step 4: Administrative stop.

Complain to OBO for lack of permit, plan deviations, or non-compliance with codes; request Stop-Work Order.

Step 5: Court action (if needed).

Choose among ejectment (≤1 year), publiciana/reivindicatoria (>1 year or ownership), and injunction.
At filing, move for TRO/PI with survey report + affidavits; post bond.

Step 6: During the case.

Consider mediation/settlement: purchase of the sliver, setback adjustments, or exchange of strips.
If the builder is in good faith, explore Art. 448 solutions (indemnity or sale of the affected strip) overseen by the court.

Step 7: Enforcement.

If you win, ask for writ of demolition (or rely on OBO demolition). Coordinate with sheriff/LGU.
Annotate judgment; remove monuments or restore them properly per survey.

11) Good-faith vs. bad-faith indicators

Good faith (builder): had a clean title, relied on approved survey/permits, promptly stopped upon notice, and offered to cure.
Bad faith (builder): knew of boundary issues, ignored demand, built at night or accelerated work after demand, refused survey, or built without permits.

Courts weigh these behaviors heavily when choosing between removal and compensation.

12) Special topics & edge cases

Party walls/setbacks/easements. Shared walls and required setbacks are controlled by Civil Code provisions and local zoning. Overhangs usually cannot cross lot lines without an easement; even de minimis intrusions can be ordered removed.
Roads and waterways. Building into a road lot, river/estero, or mandatory easement (e.g., banks of navigable rivers) invites swift administrative removal.
Common areas in subdivisions/condominiums. Encroachment into common areas is enjoinable; condo law and MCs apply.
Stealth entry and the one-year ejectment clock. When entry was clandestine, the one-year period can run from discovery, not from actual entry—document discovery dates carefully.
Overlap/technical errors. Sometimes both titles are “correct” but surveys misclose. These need re-survey, possible reconstitution/amendment of technical descriptions, or quieting of title.
Criminal complaints. Use sparingly; they can pressure settlement but may also harden positions. File only when facts fit the penal provision (violence/intimidation; tampering of monuments).

13) Drafting aids (concise templates)

Demand to Stop and Remove Encroachment (outline)

Parties and properties (TCT Nos., areas, technical descriptions succinctly).
Findings: date of relocation survey, encroached area (sqm, bearings), photos.
Legal basis: ownership/possession; violation of boundary; building without consent/permit.
Demands: immediate stop-work; removal within __ days; restoration; payment of survey and damages; meeting offer.
Notice of next steps: barangay/OBO complaint and court action including TRO/PI.
Attachments: survey sketch, photos, title copies.

Complaint (Injunction + Damages) – prayer highlights

Issue TRO and Preliminary Injunction restraining construction and occupancy.
After trial: Permanent Injunction, demolition, damages, attorney’s fees, costs.
Ancillary: lis pendens annotation.

Partition Complaint (co-ownership)

Allegations of co-ownership and refusal to partition; identification of improvements; accounting for fruits/rent; appointment of commissioners; option to sell if partition in kind is impracticable.

14) Common pitfalls (and how to avoid them)

Skipping the survey. Courts and building officials will ask for it; your case is much stronger with precise coordinates.
Letting time run. Ejectment’s one-year window can close quickly. Act early.
Overlooking barangay conciliation. Many cases require it; filing in court without CFA can lead to dismissal.
Focusing only on court. OBO stop-work is often the fastest brake on illegal building.
Ignoring good-faith dynamics. Overreaching against a good-faith builder may result in you paying indemnity under Art. 448; tailor your strategy to the facts.
Not documenting damages. Keep receipts, rental value appraisals, and contemporaneous photos.

15) Quick action matrix

Scenario	First move	Parallel move	Final remedies
Encroaching wall discovered mid-construction	Relocation survey + Demand	OBO complaint → Stop-Work	Injunction; Ejectment/Publiciana; Demolition; Damages
Co-owner building on undivided land	Barangay + Demand to cease	OBO stop-work (if permit issues)	Injunction; Partition + Accounting; Damages; Demolition
Old encroachment discovered (>1 year)	Publiciana/Reivindicatoria	OBO (if still building)	Demolition; Damages; Boundary correction
Small “sliver” encroachment; both in good faith	Negotiate Art. 448 solution	Court-assisted settlement if needed	Indemnity or sale/lot-line adjustment

16) Bottom line

Verify with a relocation survey, act quickly, and use parallel tracks: barangay, OBO stop-work, and court injunction.
On undivided land, you can restrain unilateral building and pursue partition with accounting.
Good faith vs. bad faith drives outcomes: removal and damages for bad faith; equitable options under Art. 448 for good faith.
Aim for practical settlements when possible (purchase of the strip, setback redesign), but be fully prepared to litigate with strong evidence and clear prayers for relief.

(This article provides general information on Philippine law. For a specific dispute, consult a Philippine lawyer with your survey, titles, and local ordinance details.)