Tolerance in Unlawful Detainer: Mere Inaction Is Not Enough

In unlawful detainer cases, a plaintiff often claims that the defendant’s possession was merely tolerated. But the Supreme Court has clarified that tolerance requires more than silence or inaction. In Lozano v. Fernandez (G.R. No. 212979, February 18, 2019), the Court ruled that an owner's failure to act after executing a waiver does not, by itself, establish the kind of tolerance that supports an ejectment suit.

The case also reaffirms the strong evidentiary weight given to notarized documents. A party who challenges a notarized waiver must present clear and convincing evidence of irregularity—not merely unsubstantiated claims.

Facts of the Case

Ma. Antonette Lozano executed a Waiver and Transfer of Possessory Rights over a property in Olongapo City in favor of Jocelyn K. Fernandez on December 11, 2006. After the waiver, Fernandez allowed Lozano to remain on the property. On July 15, 2009, Fernandez sent a demand letter asking Lozano to vacate. When Lozano refused, Fernandez filed an unlawful detainer complaint before the Municipal Trial Court in Cities (MTCC).

Lozano denied signing the waiver, claiming that Fernandez tricked her into signing a blank document. She alleged that the real agreement was a loan with the property as collateral. She also argued that the complaint was filed beyond the one-year prescriptive period for unlawful detainer.

The MTCC dismissed the complaint, ruling that Fernandez failed to prove tolerance and that the action had prescribed. The Regional Trial Court (RTC) reversed, holding that tolerance could be presumed from Fernandez's failure to ask Lozano to vacate after the waiver. The Court of Appeals (CA) affirmed the RTC.

The Issue

The central question was whether Fernandez's inaction after the execution of the waiver constituted tolerance sufficient to support an unlawful detainer action.

The Ruling: Tolerance Requires Positive Acts

The Supreme Court reversed the CA and reinstated the MTCC's dismissal. The Court held that tolerance in unlawful detainer must be proven through positive acts of consent—not merely through silence or passivity.

Citing Reyes v. Heirs of Deogracias Forlales (787 Phil. 541 [2016]), the Court explained that tolerance signifies permission, authorization, or license. Silence and inaction, by contrast, amount to negligence, not tolerance. The Court emphasized:

"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."

In this case, Fernandez's alleged tolerance rested solely on the fact that she did nothing after the waiver was executed. The Court found this insufficient. Even assuming the waiver was valid, its execution and Fernandez's subsequent failure to assert her rights did not warrant the conclusion that she tolerated Lozano's continued possession.

The Court also rejected the affidavits submitted by Fernandez and her witness. These affidavits merely concluded that Lozano's possession was by tolerance but contained no specific averments describing any positive act of permission by Fernandez.

Notarized Documents: A High Bar for Challenge

The Court also addressed Lozano's claim that the waiver was irregular. The waiver was notarized, and notarization converts a private document into a public document. Such documents enjoy the presumption of regularity and are admissible without further proof of authenticity.

To overcome this presumption, a party must present clear and convincing evidence—a standard higher than mere preponderance of evidence. Lozano's bare allegations that she never appeared before the notary and that the document was a blank form she was tricked into signing were insufficient. Without corroborating evidence, these claims did not even meet the threshold of preponderance.

Practical Takeaways

• Tolerance is an affirmative defense to prescription, not a presumption. In unlawful detainer cases based on tolerance, the plaintiff must prove specific acts showing permission or consent—not just the absence of action.
• Silence is not tolerance. An owner who does nothing after a waiver or lease expires has not necessarily "tolerated" the occupant's possession. There must be overt acts indicating permission.
• Notarized documents are difficult to challenge. A party attacking a notarized waiver must present clear and convincing evidence of fraud, irregularity, or lack of due execution. Unsupported allegations will not suffice.
• Act promptly. Because tolerance must be shown through positive acts, an owner who wishes to preserve an unlawful detainer claim should document any permission granted and act within the prescriptive period once possession becomes unlawful.
• Affidavits must contain specific facts. A witness statement that merely concludes "possession was by tolerance" without describing the acts of permission carries little evidentiary weight.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.