[a] Is the buyer in the auction sale arising from an extra-judicial foreclosure entitled to a writ of possession even before the expiration of the redemption period? If so, what is the action to be taken? (1 %)
[b] After the period of redemption has lapsed and the title to the lot is consolidated in the name of the auction buyer, is he entitled to the writ of possession as a matter of right? If so, what is the action to be taken? (2%)
[c] Suppose that after the title to the lot has been consolidated in the name of the auction buyer, said buyer sold the lot to a third party without first getting a writ of possession. Can the transferee exercise the right of the auction buyer and claim that it is a ministerial duty of the court to issue a writ of possession in his favor? Briefly explain. (2%)
Suggested answer only. Not an official answer and not legal advice.
In [a], yes, the buyer is entitled to a writ of possession before redemption expires. In [b], yes, the buyer is entitled as a matter of right. In [c], yes, the transferee can exercise the buyer's right as a ministerial duty. Under Section
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Quick check
Under Section 7 of Act No. 3135, what is required for an auction purchaser to obtain a writ of possession during the redemption period?
Obtaining a writ of possession during the redemption period requires filing an ex parte petition and posting a court-approved bond.
What is the nature of the court's duty to issue a writ of possession after title is consolidated in the auction buyer?
Upon consolidation of title, the issuance of a writ of possession becomes a ministerial duty of the trial court.
If an auction purchaser sells the property to a third party after title consolidation, what right does the transferee acquire?
A transferee steps into the shoes of the auction purchaser and inherits the right to a ministerial writ of possession.
Which statute governs the extrajudicial foreclosure of real estate mortgages and the issuance of writs of possession in the Philippines?
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Why is an auction purchaser not required to post a bond when applying for a writ of possession after title consolidation?
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Learn more about these topics
1. Possession Pending Redemption
Under Section 7 of Act No. 3135, the purchaser in an extrajudicial foreclosure sale may petition the court for a writ of possession during the one-year redemption period. To obtain the writ, the buyer must file an ex parte petition under oath and post a court-approved bond equal to the use and occupation value of the property for twelve months. The issuance of the writ during this stage is a judicial proceeding designed to protect both the purchaser's possessory claim and the mortgagor's redemption rights.
2. Consolidated Title Writ
Upon the expiration of the one-year redemption period without redemption being made, title to the foreclosed real property becomes consolidated in the auction purchaser. Once title is consolidated and a new certificate of title is issued, the purchaser's right to possession becomes absolute. At this stage, the issuance of a writ of possession turns into a purely ministerial duty of the court. The purchaser is no longer required to post a bond to obtain physical possession of the property.
3. Transferee Possessory Right
The right of an auction buyer to demand a writ of possession as a ministerial duty extends to subsequent transferees or buyers. When the purchaser sells or conveys the property after title consolidation, the transferee steps into the shoes of the purchaser, acquiring all associated rights and remedies. Consequently, the transferee may file an ex parte motion for the issuance of a writ of possession, and the court remains bound by its ministerial duty to grant the writ.