• Preliminary injunction can stop neighbor from using disputed land

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have a dispute with my neighbor involving a certain parcel of land. This matter was brought before the barangay (village) council. Somebody advised me to go to court for the issuance of a temporary restraining order or preliminary injunction because my neighbor is now building a house on this property. Is this possible?            
    Angelo

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    Dear Angelo,
    A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from doing a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as preliminary mandatory injunction (Section 1, Rule 58, Rules of Court).

    The Supreme Court said in Salting vs Velez (G. R. No. 181930, January 10, 2011) that: “Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of preliminary injunction, viz.:

    SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established:

    (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

    (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

    (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

    And as clearly explained in Ocampo v. Sison Vda. de Fernandez:

    To be entitled to the injunctive writ, the applicant must show that there exists a right to be protected which is directly threatened by an act sought to be enjoined. Furthermore, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent serious damage. The applicant’s right must be clear and unmistakable. In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion. Where the applicant’s right or title is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction.

    A clear and positive right especially calling for judicial protection must be shown. Injunction is not a remedy to protect or enforce contingent, abstrac or future rights; it will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a cause of action. There must exist an actual right. There must be a patent showing by the applicant that there exists a right to be protected and that the acts against which the writ is to be directed are violative of said right.”

    In your situation, you have to initiate a principal civil action against your neighbor and then ask for the issuance of a preliminary injunction to stop the ongoing construction, subject to the requirements enumerated by the Supreme Court in the above-stated cases.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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