This case has been cited 2 times or more.
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2015-06-17 |
PERALTA, J. |
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| Upon the expiration of the period to redeem and no redemption was made, the purchaser, as confirmed owner, has the absolute right to possess the land and the issuance of the writ of possession becomes a ministerial duty of the court upon proper application and proof of title.[24] | |||||
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2015-06-17 |
PERALTA, J. |
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| There is, however, an exception to the rule. Under Section 33, Rule 39 of the Rules of Court,[25] the possession of the property shall be given to the purchaser or last redemptioner unless a third party is actually holding the property in a capacity adverse to the judgment obligor. Thus, the court's obligation to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial when there is a third party in possession of the property claiming a right adverse to that of the judgment debtor/mortgagor.[26] In such a case, the issuance of the writ of possession ceases to be ex-parte and non-adversarial as the trial court must order a hearing to determine the nature of said possession, i.e., whether or not possession of the subject property is under a claim averse to that of the judgment debtor.[27] We repeatedly emphasize though that the exception provided under Section 33 contemplates a situation in which a third party holds the property by adverse title or right vis-a-vis the judgment debtor or mortgagor, such as that of a co-owner, agricultural tenant or usufructuary, who possesses the property in his or her own right, and is not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.[28] | |||||