G.R. No. 212979. February 18, 2019.

MA. ANTONETTE LOZANO, petitioner, vs. JOCELYN K. FERNANDEZ, respondent.

Remedial Law; Civil Procedure; Certificate Against Forum Shopping; Details Must be Stated in the
Certificate Against Forum Shopping.—Under Section 5, Rule 7 of the Rules of Court, the following details
must be stated in the certificate against forum shopping: (a) the party has not commenced any action
involving the same issues in any court or tribunal, or that there is no pending case involving the same
issue to the best of his knowledge; (b) a complete statement of the present status if there is such other
pending action; and (c) notify the court wherein the complaint or initiatory pleading is filed, within five
(5) days should the party thereafter learn that the same or similar action has been filed or is pending.
Lozano’s certificate against forum shopping fully contained the information required and was written in
the very words used by the Rules of Court. Contrary to Fernandez’s position the rules do not make use
of the phrase “promptly inform” as it specifically provides that the party should notify the court within
five days from discovering a similar case pending before another court.

Same; Same; Appeals; Petition for Review on Certiorari; It is true that in a petition for review
on certiorari under Rule 45 of the Rules of Court, only questions of law may be raised.—It is true that in
a petition for review on certiorari under Rule 45 of the Rules of Court, only questions of law may be
raised. Nevertheless, the said rule admits of exception such as when the conclusion is based on
speculation or conjectures, or there is a misapprehension of facts. In addition, the Court may relax the
strict application of the rules of procedure in the exercise of its equity jurisdiction when its rigid
application will tend to obstruct rather than serve the broader interests of justice in light of the
prevailing circumstances of the case.

Notarized Documents; The act of notarization is not a hollow formality as it carries with it the legal effect
of converting a private document to a public document, which is presumed regular, admissible in
evidence without need for proof of its authenticity and due execution, and entitled to full faith and
credit upon its face.—The act of notarization is not a hollow formality as it carries with it the legal effect
of converting a private document to a public document, which is presumed regular, admissible in
evidence without need for proof of its authenticity and due execution, and entitled to full faith and
credit upon its face. In Heirs of Spouses Liwagon v. Heirs of Spouses Liwagon, 743 SCRA 16 (2014), the
Court ruled that the presumption of regularity of notarized documents may be overcome by clear and
convincing evidence and not by mere preponderance of evidence.

Unlawful Detainer; Possession by Tolerance; In an action for unlawful detainer based on tolerance, the
acts of tolerance must be proved.—In an action for unlawful detainer based on tolerance, the acts of
tolerance must be proved. Bare allegations of tolerance are insufficient and there must be acts
indicative of tolerance. In Reyes v. Heirs of Deogracias Forlales, 794 SCRA 13 (2016), the Court had
expounded on the concept of tolerance in unlawful detainer cases, to wit: Professor Tolentino defines
and characterizes “tolerance” in the following manner: [. . .] acts merely tolerated are those which by
reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to
do on the property; they are generally those particular services or benefits which one’s property can
give to another without material injury or prejudice to the owner, who permits them out of friendship or
courtesy. They are acts of little disturbances which a person, in the interest of neighborliness or friendly
relations, permits others to do on his property, such as passing over the land, tying a horse therein, or
getting some water from a well. And even though this is continued for a long time, no right will be
acquired by prescription. [. . .] There is tacit consent of the possessor to the acts which are merely
tolerated. Thus, not every case of knowledge and silence on the part of the possessor can be considered
mere tolerance. By virtue of tolerance that is considered as an authorization, permission or license, acts
of possession are realized or performed. The question reduces itself to the existence or nonexistence of
the permission.

Same; Same; Tolerance signifies permission and not merely silence or inaction as silence or inaction is
negligence and not tolerance.—For there to be tolerance, complainants in an unlawful detainer must
prove that they had consented to the possession over the property through positive acts. After all,
tolerance signifies permission and not merely silence or inaction as silence or inaction is negligence and
not tolerance. In the present case, Fernandez’s alleged tolerance was premised on the fact that she did
not do anything after the Waiver was executed. However, her inaction is insufficient to establish
tolerance as it indicates negligence, rather than tolerance, on her part. As above mentioned, inaction
should not be confused with tolerance as the latter transcends silence and connotes permission to
possess the property subject of an unlawful detainer case. Thus, even assuming the Waiver was valid
and binding, its execution and Fernandez’s subsequent failure to assert her possessory rights do not
warrant the conclusion that she tolerated Lozano’s continued possession of the property in question,
absent any other act signifying consent.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Karaan and Karaan Law Office for petitioner.

The Law Firm of Penullar & Associates for respondent.

J. REYES, JR., J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
reverse and set aside the November 22, 2013 Decision1 and the June 13, 2014 Resolution2 of the Court
of Appeals (CA) in C.A.-G.R. S.P. No. 125107, which affirmed the November 3, 2011 Decision3 in Civil
Case No. 38-0-2011 of the Regional Trial Court (RTC), Branch 72, Olongapo City.

The present controversy revolves around a parcel of land and its improvements in CM Subdivision, New
Cabalan, Olongapo City currently declared for taxation purposes under the name of respondent Jocelyn
K. Fernandez (Fernandez).

Respondent’s position

On December 11, 2006, petitioner Ma. Antonette Lozano (Lozano) executed a Waiver and Transfer of
Possessory Rights (Waiver)4 over the subject property in favor of Fernandez. After the execution of the
document, Fernandez continued to tolerate Lozano’s possession over the property. On July 15, 2009,
she sent a demand letter5 to Lozano ordering her to vacate the premises. Because Lozano failed to leave
the property, Fernandez was constrained to file an action for unlawful detainer against her before the
Municipal Trial Court in Cities, Branch 2, Olongapo City (MTCC).6

Petitioner’s position
Since 1996, Lozano had owned and possessed the subject property. She never recalled signing any
Waiver in Fernandez’s favor. Lozano explained that Fernandez duped her into signing a blank document,
which was later converted to a Waiver. She denied having appeared before a notary public to notarize
the said document. Lozano claimed that the real contract between her and Fernandez was a loan with
mortgage as evidenced by the fact that she remained in possession of the property even after the
execution of the said Waiver and that she had issued checks in payment of the loan. She pointed out
that Fernandez was engaged in the business of lending imposing unconscionable interest and was in the
practice of securing collateral from the lendee.7

MTCC’s Decision

In its February 16, 2011 Decision,8 the MTCC dismissed Fernandez’s complaint for unlawful detainer. It
explained that Fernandez only filed the present case for ejectment three years after she gained
possessory rights over the property. The MTCC expounded that Fernandez’s cause of action had
prescribed as the complaint was filed after one year from the time the possession became unlawful. It
added that Fernandez failed to prove that she tolerated Lozano’s possession over the property. Thus, it
disposed:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in the following manner:

1. Ordering the dismissal of the complaint of the plaintiff for lack of cause of action and for want of
merit; [and]

2. Ordering the Plaintiff to pay the Defendant reasonable attorney’s fees in the amount of P20,000.00.

SO [ORDERED].9

Aggrieved, Fernandez appealed to the RTC.

RTC’s Decision

In its November 3, 2011 Decision, the RTC granted Fernandez’s appeal. It explained that after the
execution of the Waiver on December 11, 2006, Lozano’s possession over the property was merely
tolerated by Fernandez. The RTC noted that after the ten-day period to vacate stated in the demand
letter, Lozano’s continued possession over the land became illegal. It expounded that tolerance is
presumed from the fact that after the execution of the Waiver, Fernandez did not ask Lozano to vacate
the land. Thus, the RTC concluded that it was Fernandez who was entitled to attorney’s fees under
Article 2208 of the Civil Code. In addition, it awarded rentals in favor of Fernandez as a consequence of
her being deprived of possession over the parcel of land. The RTC disposed:

WHEREFORE, premises considered, the appeal is hereby GRANTED. The Decision dated February 16,
2011 of the Municipal Trial Court in Cities, Branch 2, Olongapo City in Civil Case No. 7238 for unlawful
detainer is hereby RECONSIDERED, REVERSED AND SET ASIDE. Accordingly, judgment is hereby rendered
in favor of the plaintiff and against the defendant, ordering:

1. The defendant and all persons claiming rights under it to vacate the premises located at CNI
Subdivision, New Cabalan, Olongapo City it is presently occupying;
2. The defendant to pay plaintiff the amount of five thousand (P5,000.00) pesos per month as rentals
for use of the property from July 20, 2009 up to the time it actually vacates the place;

3. The defendant to pay the plaintiff the amount of twenty thousand (P20,000.00) pesos as attorney’s
fees; and

4. To pay the cost of litigation.

SO ORDERED.10

Undeterred, Lozano appealed to the CA.

CA’s Decision

In its November 22, 2013 Decision, the CA affirmed the RTC’s Decision. The appellate court elaborated
that the MTCC should have resolved the genuineness and due execution of the Waiver because its
determination is necessary for a proper and complete adjudication of the issue of possession. It,
however, upheld the said document as Lozano failed to present evidence to discredit a notarized
document. The CA agreed that there was tolerance when after the execution of the Waiver, Fernandez
allowed Lozano to continue possessing the land. Further, the appellate court upheld the grant of rentals
as courts may order the award of an amount representing arrears of rent or reasonable compensation
for the use and occupation of the premises. Also, the CA sustained the award of attorney’s fees because
it is allowed when claimants are compelled to litigate with third persons or incur expenses to protect
their interest by reason of an unjustified act or omission on the part of the party from whom it is sought.
Thus, it ruled:

WHEREFORE, the petition is DENIED DUE COURSE and DISMISSED.

SO ORDERED.11

Unsatisfied, Lozano moved for reconsideration but it was denied by the CA in its June 13, 2014
Resolution.

Hence, this present petition raising:

The Issues

I
[WHETHER] THE [CA] GROSSLY ERRED IN SUSTAINING THE DECISION OF THE RTC ORDERING THE
EJECTMENT OF THE PETITIONER FROM THE SUBJECT PROPERTY NOTWITHSTANDING THAT THERE WAS
NO TOLERANCE IN CONTEMPLATION OF THE LAW ON EJECTMENT THAT WAS PROVEN[; AND]

II
[WHETHER] THE [CA] GROSSLY ERRED IN [SUSTAINING] THE DECISION OF THE RTC ORDERING THE
PAYMENT OF REASONABLE RENTALS AND ATTORNEY’S FEES IN FAVOR OF THE RESPONDENT AT THE
EXPENSE OF THE PETITIONER NOTWITHSTANDING THE ABSENCE OF PROOF OF FACTUAL AND LEGAL
BASIS THERE-FOR.12
Lozano argued that the CA erred in granting probative value on the Waiver because she was able to
prove that its execution was irregular considering that it was not the true agreement she had with
Fernandez and that she had never appeared before a notary public. She reiterated that Fernandez took
advantage of her poor understanding of legal documentation when the latter made her sign a blank
document which was later converted into the Waiver. Lozano assailed that Fernandez did not present
sufficient evidence to establish that the latter merely tolerated the former’s possession of the property.
She faulted the CA in relying only on Fernandez and her witness’ affidavits as they were self-serving and
lacked evidentiary value.

Lozano expounded that the complaint for unlawful detainer was also filed beyond the one-year
prescriptive period. She explained that assuming the Waiver was valid, the complaint should be filed
within one year therefrom as it gave Fernandez possessory rights over the property. She lamented that
Fernandez filed the complaint only after three years had elapsed from the execution of the said
document.

Finally, Lozano bewailed that the award of rentals and attorney’s fees was improper. She averred that
Fernandez had the burden of proof to prove her entitlement to rentals, which she failed to do so. On the
other hand, Lozano highlighted that the award of the attorney’s fees only existed in the dispositive
portion of the RTC’s Decision and was not explained in its body. She believed that it violated the settled
rule that the legal reason for the award of attorney’s fees should be stated in the body of the decision.

In her Comment13 dated February 25, 2015, Fernandez countered that Lozano’s petition for review on
certiorari should be dismissed as it raised questions of fact. In addition, she noted that the certificate
against forum shopping did not contain the undertaking that “the petitioner shall promptly inform the
aforesaid courts and other [tribunals]” should the petitioner learn of the filing or pendency of the same
or similar action or proceeding.

In her Manifestation14 dated March 11, 2015, Lozano stated that she opted to no longer file a Reply
after reviewing the allegations of Fernandez’s Comment.

The Court’s Ruling

Fernandez assails that Lozano’s petition for review on certiorari should be dismissed outright as it is
procedurally infirm. She notes that Lozano’s certificate of non-forum shopping did not contain the
undertaking to promptly inform the court should she learn of the filing or pendency of the same or
similar action.

Under Section 5, Rule 7 of the Rules of Court, the following details must be stated in the certificate
against forum shopping: (a) the party has not commenced any action involving the same issues in any
court or tribunal, or that there is no pending case involving the same issue to the best of his knowledge;
(b) a complete statement of the present status if there is such other pending action; and (c) notify the
court wherein the complaint or initiatory pleading is filed, within five (5) days should the party
thereafter learn that the same or similar action has been filed or is pending. Lozano’s certificate against
forum shopping fully contained the information required and was written in the very words used by the
Rules of Court. Contrary to Fernandez’s position the rules do not make use of the phrase “promptly
inform” as it specifically provides that the party should notify the court within five days from discovering
a similar case pending before another court.
Fernandez also argues that Lozano’s petition for review on certiorari should be dismissed for raising
questions of fact. A question of fact pertains to the truth or falsity of the alleged acts or involves an
examination of the probative value of the evidence presented.15 Meanwhile, a question of law arises
when there is doubt to what the law is on certain state of facts — it can be resolved without reviewing
or evaluating the evidence.16
In her petition for review on certiorari, Lozano raises questions of fact. Her challenge on the validity of
the Waiver is a question of fact as it revolves around the probative value and due execution of the said
document. In addition, Lozano’s claim that there was no tolerance is likewise a factual issue considering
that the CA had found sufficient evidence to prove Fernandez’s tolerance. In particular, the CA
appreciated in Fernandez’s favor her affidavit and of a certain Michael Gascon (Gascon) stating that
Fernandez had tolerated Lozano’s possession after the execution of the Waiver. Thus, it calls for the
examination or review of the probative value of evidence on record.

It is true that in a petition for review on certiorari under Rule 45 of the Rules of Court, only questions of
law may be raised.17 Nevertheless, the said rule admits of exception such as when the conclusion is
based on speculation or conjectures, or there is a misapprehension of facts.18 In addition, the Court
may relax the strict application of the rules of procedure in the exercise of its equity jurisdiction when its
rigid application will tend to obstruct rather than serve the broader interests of justice in light of the
prevailing circumstances of the case.19

Having settled the procedural issues, the Court finds that Lozano’s petition for review on certiorari is
meritorious.

Notarized document set

Lozano vehemently denies having executed the Waiver claiming that her true agreement with
Fernandez was a loan with the subject property as collateral. She laments that Fernandez took
advantage of her lack of knowledge and understanding over legal documentation when the latter made
her sign a blank document, which was later converted to a Waiver.

Lozano does not contest that the Waiver was notarized. She, however, claims that she had established
that she had not validly executed the said document and had overcome the presumption of regularity of
notarized documents.

The act of notarization is not a hollow formality as it carries with it the legal effect of converting a
private document to a public document, which is presumed regular, admissible in evidence without
need for proof of its authenticity and due execution, and entitled to full faith and credit upon its face.20
In Heirs of Spouses Liwagon v. Heirs of Spouses Liwagon,21 the Court ruled that the presumption of
regularity of notarized documents may be overcome by clear and convincing evidence and not by mere
preponderance of evidence, to wit:

Both the trial and appellate courts correctly ruled in favor of the due execution of the subject Deed of
Sale which was duly acknowledged and recorded by Atty. Alfredo Abayon in his notarial registry. It is a
rule in our jurisdiction that the act of notarization by a notary public converts a private document into a
public document, making it admissible in evidence without further proof of its authenticity. By law, a
notarial document is entitled to full faith and credit upon its face. It enjoys the presumption of regularity
and is a prima facie evidence of the facts stated therein — which may only be overcome by evidence
that is clear, convincing and more than merely preponderant. Without such evidence, the presumption
must be upheld.22 (Citations omitted and emphasis supplied)

In the present case, Lozano merely claims that she never appeared before a notary public and her true
obligation with Fernandez was merely a loan with collateral. However, mere allegations, without
supporting evidence, are insufficient to discredit the validity of notarized documents. This is especially
true considering that uncorroborated allegations do not even meet the threshold of preponderance of
evidence. Lozano errs in concluding that she had overcome the presumption of regularity because other
than her unsubstantiated statements, the records are bereft of evidence to indicate any irregularity in
the contents of the document or to the act of notarization itself.

Tolerance is more than

On the basis of the said Waiver, Fernandez claims that she had acquired possession of the said property.
She adds that she tolerated Lozano’s continued possession thereof after she did not exert her right after
the execution of the said document.

In an action for unlawful detainer based on tolerance, the acts of tolerance must be proved.23 Bare
allegations of tolerance are insufficient and there must be acts indicative of tolerance.24 In Reyes v.
Heirs of Deogracias Forlales,25 the Court had expounded on the concept of tolerance in unlawful
detainer cases, to wit:
Professor Tolentino defines and characterizes “tolerance” in the following manner:

[. . .] acts merely tolerated are those which by reason of neighborliness or familiarity, the owner of
property allows his neighbor or another person to do on the property; they are generally those
particular services or benefits which one’s property can give to another without material injury or
prejudice to the owner, who permits them out of friendship or courtesy. They are acts of little
disturbances which a person, in the interest of neighborliness or friendly relations, permits others to do
on his property, such as passing over the land, tying a horse therein, or getting some water from a well.
And even though this is continued for a long time, no right will be acquired by prescription. [. . .]

There is tacit consent of the possessor to the acts which are merely tolerated. Thus, not every case of
knowledge and silence on the part of the possessor can be considered mere tolerance. By virtue of
tolerance that is considered as an authorization, permission or license, acts of possession are realized or
performed. The question reduces itself to the existence or nonexistence of the permission.26 (Citation
omitted, emphasis in the original)

In other words, for there to be tolerance, complainants in an unlawful detainer must prove that they
had consented to the possession over the property through positive acts. After all, tolerance signifies
permission and not merely silence or inaction as silence or inaction is negligence and not tolerance.27

In the present case, Fernandez’s alleged tolerance was premised on the fact that she did not do anything
after the Waiver was executed. However, her inaction is insufficient to establish tolerance as it indicates
negligence, rather than tolerance, on her part. As above mentioned, inaction should not be confused
with tolerance as the latter transcends silence and connotes permission to possess the property subject
of an unlawful detainer case. Thus, even assuming the Waiver was valid and binding, its execution and
Fernandez’s subsequent failure to assert her possessory rights do not warrant the conclusion that she
tolerated Lozano’s continued possession of the property in question, absent any other act signifying
consent.

In addition, contrary to the appreciation of the CA, the affidavits28 of Fernandez and Gascon do not
prove that the former tolerated Lozano’s possession of the property. A close perusal of the averments in
their affidavits reveals that they merely concluded that Lozano’s possession was by mere tolerance. The
affidavits were bereft of any statement describing positive acts of Fernandez manifesting tolerance or
permission. The CA erred in giving weight to these affidavits as they do not contain specific averments of
tolerance and merely stated unfounded conclusions.

Again, Fernandez cannot simply claim that she had tolerated Lozano’s possession because she did not
do anything after the execution of the Waiver as silence does not equate to tolerance or permission. In
short, the execution of the Waiver alone is not tantamount to the tolerance contemplated in unlawful
detainer cases. The absence of an overt act indicative of tolerance or permission on the part of the
plaintiff is fatal for a case for unlawful detainer.29

WHEREFORE, the petition is GRANTED. The February 16, 2011 Decision in Civil Case No. 7238 of the
Municipal Trial Court in Cities, Branch 2, Olongapo City is REINSTATED.

SO ORDERED.

Carpio** (Chairperson), Perlas-Bernabe, Caguioa and Hernando,*** JJ., concur.

Petition granted, judgment reinstated.

Notes.—The determination of whether an appeal involves only questions of law or both questions of law
and fact is best left to the appellate court. (Valderama vs. Arguelles, 860 SCRA 188 [2018])

Acts of tolerance must be proved showing the overt acts indicative of his or his predecessor’s tolerance
or permission for them to occupy the disputed property. (De Guzman-Fuerte vs. Estomo, 862 SCRA 388
[2018])

——o0o——
1 Penned by Associate Justice Romeo F. Barza, with Associate Justices Noel G. Tijam and Ramon A. Cruz,
concurring; Rollo, pp. 155-165.
2 Id., at pp. 184-185.
3 Penned by Presiding Judge Richard A. Paradeza; id., at pp. 83-89.
4 Id., at pp. 34-36.
5 Id., at p. 37.
6 Id., at p. 156.
7 Id., at pp. 11-12.
8 Penned by Presiding Judge Jacinto C. Gonzales; id., at pp. 59-61.
9 Id., at p. 61.
10 Id., at p. 89.
11 Id., at p. 164.
12 Id., at p. 12.
13 Id., at pp. 189-191.
14 Id., at pp. 193-195.
15 Republic v. Malabanan, 646 Phil. 631, 637; 632 SCRA 338, 345 (2010).
16 Id.
17 Abedes v. Court of Appeals, 562 Phil. 262, 278; 536 SCRA 268, 286 (2007).
18 Pascual v. Burgos, 776 Phil. 167, 182; 778 SCRA 189, 205 (2016).
19 Curammeng v. People, 799 Phil. 575, 581; 808 SCRA 613, 620 (2016).
20 Aboitiz v. Po, G.R. No. 208450, June 5, 2017, 825 SCRA 457.
21 748 Phil. 675; 743 SCRA 16 (2014).
22 Id., at p. 686; p. 26.
23 Carbonilla v. Abiera, 639 Phil. 473, 482; 625 SCRA 461, 470 (2010).
24 Iglesia de Jesucristo Jerusalem Nueva of Manila, Philippines, Inc. v. Dela Cruz, G.R. No. 208284, April
23, 2018, 862 SCRA 281.
25 787 Phil. 541; 794 SCRA 13 (2016).
26 Id., at pp. 554-555; p. 28.
27 Javelosa v. Tapus, G.R. No. 204361, July 4, 2018, 870 SCRA 496.
28 Rollo, pp. 129-130.
29 Jose v. Alfuerto, 699 Phil. 307, 320-321; 686 SCRA 323, 339 (2012).

** Designated Senior Associate Justice per Section 12, R.A. No. 296, The Judiciary Act of 1948, as
amended.

*** Designated additional member per S.O. No. 2630 dated December 18, 2018. Lozano vs. Fernandez,
893 SCRA 130, G.R. No. 212979 February 18, 2019