WHEN THE COURT ISSUES A WRIT OF POSSESSION FOR A VACANT LOT
Philippine doctrinal and practical guide
1. Concept of a writ of possession
A writ of possession (WOP) is an order directing the sheriff or other proper officer to place a person in actual or symbolic possession of real property. It is in rem—executed against the property itself, not against a particular person—and is purely ministerial once the legal prerequisites are shown. Authority: Rule 39, Sec. 35 (Rules of Court); Act No. 3135 (as amended); Rule 67 on expropriation; P.D. 1529 (Property Registration Decree).
2. Why the lot’s being vacant matters
| Vacant lot | Occupied lot | |
|---|---|---|
| Sheriff’s task | Post notice on site and deliver symbolic possession (handing a copy of the writ and the owner’s duplicate title) | Physically oust occupants; may require notice and assistance of police |
| Due-process level | Ex parte issuance almost always allowed | Ex parte issuance not allowed if occupants claim a right independent of the mortgagor/owner (Spouses Abesamis v. CA, G.R. 130816, Jan 28 2000) |
| Time & cost | Faster, cheaper, few hearings | Possible ancillary litigation (interpleaders, third-party claims) |
Because no physical ouster is needed, courts uniformly treat issuance of the WOP for a vacant parcel as ministerial once statutory conditions are met.
3. Statutory and doctrinal bases
Rule 39, Sec. 35 – After judicial foreclosure or execution sale, the purchaser “shall be placed in possession” once the redemption period lapses and a final deed is issued.
Act No. 3135 (as amended by Act 4118) – Governs extrajudicial foreclosure of real estate mortgages. After the one-year redemption period, the buyer may move ex parte for a WOP.
Rule 67, Sec. 2 & 7 – In expropriation, the court may issue a pre-judgment WOP upon deposit of the provisional value, and a final WOP after payment of just compensation.
P.D. 1529, Sec. 107 – Upon issuance of the decree of registration, “the court shall, upon proper motion, order the issuance of a writ of possession in favor of the applicant.”
Special laws
- R.A. 8795 (Ship Mortgage Decree) – Mirrors Act 3135 rules.
- R.A. 11057 (Personal Property Security Act) does not apply; land remains outside PPSA.
- DAR Administrative Orders – If the land was previously devoted to agriculture but is now truly vacant (no tenants), DAR clearance is not required.
4. Common situations in which a WOP is issued for a vacant lot
| Scenario | Statutory anchor | Key requisites before filing the motion |
|---|---|---|
| Extrajudicial foreclosure (bank sale) | Act 3135 | (a) Final certificate of sale; (b) Affidavit of consolidation; (c) TCT in buyer’s name; (d) Proof lot is vacant (sheriff’s return, ocular) |
| Judicial foreclosure | Rule 68 & Rule 39 | Same as above, plus sheriff’s final report of sale approved by court |
| Land Registration / Confirmation of Title | P.D. 1529 | Finality of judgment + decree of registration; lot adjudged vacant |
| Expropriation (government taking) | Rule 67 | (a) Order of expropriation; (b) Deposit/payment of compensation; (c) Proof lot is unoccupied |
Vacancy is usually shown through (i) the sheriff’s return that the premises are empty, or (ii) an affidavit of disinterested persons.
5. Procedure (extrajudicial foreclosure example)
File ex parte Motion for Issuance of Writ of Possession in the RTC that issued the foreclosure order.
Attach:
- Certified copies of the certificate of sale, affidavit of consolidation, and new TCT/OCT.
- Sheriff’s certification that the land is vacant.
Court evaluation: ministerial; no need for hearing unless occupancy is alleged.
Issuance of WOP: The order directs the sheriff to post the writ on site and submit a return within five (5) days.
Sheriff’s return: Affirms compliance and delivers symbolic possession (keys, if any; usually none for raw land).
6. Jurisprudence specific to vacant lots
| Case | G.R. No. / Date | Doctrine relevant to vacancy |
|---|---|---|
| Barican v. IAC | 69890, Oct 12 1988 | Sheriff may use force only when occupants derive right from mortgagor; otherwise must apply for break-open order. Vacancy = automatic, peaceful delivery. |
| Rivera v. Rural Bank of San Miguel | 182199, Aug 24 2007 | Ex parte WOP a ministerial duty if property is vacant; third-party claims irrelevant unless supported by proof of occupancy. |
| DBP v. Licuanan | 214560, Jan 14 2015 | Even if lot later becomes occupied, court’s ministerial duty is determined at the time of motion; subsequent occupation does not defeat writ. |
| China Bank v. Lozada | 228383, June 10 2020 | Clarifies that Act 3135 applies to registered or unregistered vacant land; procedural due process satisfied by publication. |
| Spouses Ello v. CA | 93708, May 4 1990 | WOP cannot issue ex parte where occupants show agrarian tenancy; but if lot is vacant the bar does not arise. |
7. When ex parte issuance is not allowed
Even for vacant land, the judge must require a hearing if:
- Colorable third-party claim appears on the face of the motion (e.g., adverse annotation in the title such as a notice of lis pendens).
- The land is covered by the Comprehensive Agrarian Reform Program (CARP) and the motion lacks DAR clearance—although the parcel looks vacant, a tenancy issue may exist underground (Heirs of Malate v. Gamboa, G.R. 170139, Apr 23 2008).
- A supervening event (e.g., writ of injunction from a higher court) intervenes between sale and motion.
8. Remedies of aggrieved parties
| Remedy | Who may file | Grounds |
|---|---|---|
| Motion to Quash WOP | Occupant, third-party claimant | Fraud, lack of jurisdiction, valid right superior to buyer’s |
| Third-party Claim (Terceria) | Non-party possessor | Property not subject of levy or sale |
| Petition for Certiorari (Rule 65) | Any party | Grave abuse of discretion in issuing writ |
| Accion reivindicatoria or accion publiciana | Alleged owner | Asserting ownership or better right to possess |
Issuance of the writ does not foreclose these independent actions.
9. Implementing the writ (Sheriff’s checklist)
- Cite the legal basis in the writ.
- Serve writ and notice to vacate (even if land is vacant) to observe due process.
- Post writ on one conspicuous part of the property.
- Take geo-tagged photos and draft return within 24-48 hours.
- Deposit writ and return with the issuing court for approval.
10. Practical drafting tips for lawyers
- Always plead vacancy and attach photographs.
- Use the same docket of the foreclosure/expropriation case to avoid raffling delays.
- If the lot later becomes occupied, amend the motion and ask for assistance from the PNP; do not rely on the earlier vacancy allegation.
- For corporate buyers, board resolution authorizing the motion speeds up approval.
11. Frequently-asked questions
| Question | Short Answer |
|---|---|
| Is a writ of possession needed if no one is on the property? | Yes. Formal delivery cures any future claim of unlawful withholding. |
| Can the Register of Deeds refuse to annotate the writ? | No; WOP is a court order. Failure to annotate is ministerial contemptible. |
| Does the one-year redemption period under Act 3135 apply to an unregistered vacant lot? | Yes—Supreme Court treats Act 3135 as gap-filler even for unregistered land. |
| What fees are due? | Sheriff’s execution fees (Rule 141, Sec. 10)(l) plus mileage; no filing fee for ex parte motion. |
12. Summary
A vacant lot simplifies the issuance of a writ of possession. Once the purchaser, applicant, or expropriating authority satisfies the statutory predicates—certificate of sale or decree of registration, lapse of redemption, proof of payment—the court’s duty is ministerial: it must issue the writ ex parte, without hearing, because no possessory rights of occupants are at stake. Properly invoked, the writ secures quiet, undisputed entry for the new owner and prevents future collateral attacks on title.
This article synthesizes Philippine statutes, procedural rules, and Supreme Court doctrine as of 13 June 2025. It is intended for academic guidance and should not substitute for specific legal advice.