Responsibility for Removing Fence in Property Encroachment Cases

Responsibility for Removing Fence in Property Encroachment Cases (Philippine Context)

When a fence, wall, or similar structure encroaches upon another person’s property, various legal principles and processes under Philippine law come into play to determine who is responsible for its removal and how the matter should be resolved. Below is an overview of the key points and pertinent legal provisions:

1. Legal Foundations for Property Ownership and Boundaries

  1. Civil Code of the Philippines (Republic Act No. 386)

    • Article 434: States that the owner of property has the right to enjoy and dispose of it without other limitations than those established by law. This includes the right to exclude others from one’s property.
    • Article 539: Provides that every possessor has the right to be respected in his possession; should he be disturbed therein, he shall be protected or restored in the possession by the means established by the laws and the Rules of Court.

  2. Property Boundaries and Demarcation

    • When neighboring owners disagree about boundary lines, they may resort to the legal procedure of an “accion publiciana” (for the recovery of possession) or an “accion reivindicatoria” (to recover ownership). These actions can be supported by official land surveys, titles, and tax declarations.

2. Determining Encroachment

Before determining responsibility for removing the fence, there must be a clear finding that the structure indeed encroaches on a neighbor’s land. Usually, the following steps are taken:

  1. Land Survey

    • A licensed geodetic engineer conducts a survey of the adjacent properties to identify boundary lines.
    • This may also involve examining the parties’ Transfer Certificates of Title (TCT), approved subdivision plans, or other official records with the Land Registration Authority (LRA) or local assessor’s office.

  2. Demand to Remove Encroachment

    • Once encroachment is established, the aggrieved party typically issues a written demand (often through legal counsel) requiring the fence’s builder or owner to remove or rectify the structure within a specific period.

  3. Katarungang Pambarangay (Barangay Conciliation)

    • If the parties are in the same municipality, the matter often goes first to the barangay for mediation, as required by the Local Government Code’s provisions on Katarungang Pambarangay.
    • If the dispute is not resolved at the barangay level, the case may proceed to court.

3. Good Faith vs. Bad Faith in Construction

Under Philippine civil law principles, the rights and obligations of a builder on another’s land can hinge on whether the builder acted in good faith or bad faith:

  1. Builder in Good Faith

    • Occurs when a person builds or places a fence on property believing in good faith that they are the rightful owner or that they had permission.
    • Articles 448–456 of the Civil Code govern situations where a person builds in good faith on land owned by another. Although these articles often deal with permanent structures like buildings, the principle can apply analogously to substantial fences or walls.
    • The landowner typically has the option to (a) appropriate the improvement (fence) upon payment of indemnity, or (b) compel the builder to pay for the land, but only if the landowner chooses and the property is not rendered indivisible.
    • In practice, courts often order the removal of the offending structure or require the parties to come to an agreement—depending on the nature of the encroachment and the circumstances.

  2. Builder in Bad Faith

    • Occurs when a person knows or has been duly warned that the land belongs to another but proceeds to build or maintain a fence thereon.
    • A builder in bad faith can be ordered to remove the structure at their own expense, or to pay damages to the landowner, and may be denied any right to reimbursement for materials or the fence’s value.

4. Remedies Available to the Aggrieved Landowner

  1. Action for Forcible Entry or Unlawful Detainer (Ejectment Cases)

    • If the encroachment is recent and involves taking possession through force, intimidation, threat, or stealth, an action for forcible entry may be filed in the Municipal Trial Court.
    • If the occupant initially had lawful possession (or by tolerance) but now refuses to vacate, an action for unlawful detainer could be filed.
    • In both cases, the court can issue a judgment ordering the removal of the fence.

  2. Accion Publiciana (Recovery of Possession) and Accion Reivindicatoria (Recovery of Ownership)

    • If the one-year period for summary ejectment proceedings (forcible entry/unlawful detainer) has lapsed, the proper remedy might be an accion publiciana for recovery of possession or an accion reivindicatoria for recovery of ownership (depending on the plaintiff’s claim).
    • A judicial order in these cases can likewise direct the responsible party to remove the encroaching structure.

  3. Action for Damages

    • In addition to or instead of physical removal, the landowner may seek damages if the encroachment has caused loss or injury—e.g., inability to use that portion of land, or depreciation of property value.

  4. Court-Ordered Removal

    • Courts, upon finding encroachment, typically order the fence’s removal. The primary obligation to remove falls upon the individual who installed or maintains the encroaching fence.
    • Non-compliance with a final court order can lead to contempt charges or the sheriff effecting removal at the encroacher’s expense.

5. Responsibility for Removal: Who Bears the Cost?

  1. Primary Responsibility

    • As a rule, the person who built or maintains the encroaching fence is responsible for its removal. This generally includes bearing the necessary costs and expenses.

  2. Amicable Settlements

    • In many instances, parties may settle amicably. The owner of the land might let the fence remain temporarily or even permanently if the offending party agrees to lease or buy the strip of land involved—but this requires mutual agreement, clear documentation, and conformity with relevant laws.

  3. Court-Ordered Costs

    • If the dispute escalates to litigation and the court decides that one party acted in bad faith, the court may:
      • Order that party to shoulder all legal costs (including attorney’s fees).
      • Direct them to demolish or remove the fence at their own expense.

  4. Local Government Regulations

    • Certain cities or municipalities have ordinances or building codes stipulating that illegally built fences must be removed by the builder, often upon notice of violation from the local building official or zoning authority.

6. Practical Considerations and Procedures

  1. Barangay Mediation

    • Before filing a court case, parties must typically undergo the barangay conciliation process (if they reside in the same city/municipality). This step often resolves disputes faster and more cheaply than going to court.

  2. Documentation

    • For a landowner claiming encroachment, gathering evidence is crucial—e.g., a professional survey report, photographs, statements from neighbors, tax declarations, copies of titles, etc.
    • The encroacher might argue good faith by presenting their own documents, historical use, or previous surveys.

  3. Building Permits

    • Although fences are sometimes built without a formal building permit (especially in smaller communities), municipalities increasingly require one. If a fence is built without the necessary permit or in violation of local zoning laws, this can strengthen the case for its removal.

  4. Judicial Enforcement

    • A final judgment typically orders the responsible party to remove the fence within a set period. If they fail to comply, the prevailing landowner may request a writ of execution, and the sheriff or local officials may carry out the demolition, with expenses charged to the non-compliant party.

7. Notable Jurisprudential Guidance

Philippine jurisprudence has consistently emphasized:

  • The importance of good faith in determining the extent of liability.
  • The right of a lawful owner to demand the removal of any structure encroaching on their land.
  • The principle that a builder in bad faith has little recourse and cannot demand payment for improvements.
  • The preference for fairness and equity, sometimes allowing negotiated arrangements or payment of indemnities if there is demonstrable good faith.

For instance, Supreme Court rulings have affirmed that when a fence or structure encroaches on another’s land, and the builder is declared in bad faith, the landowner “may choose to compel the builder to remove the structure at the builder’s expense” (see cases interpreting Articles 449 to 456 of the Civil Code).

8. Conclusion

In the Philippines, responsibility for removing a fence that encroaches on private property typically falls on the individual who built or maintains the fence—particularly if done in bad faith. Where good faith is established, the law still ultimately allows the true landowner to demand removal or to seek alternative remedies, such as compensation for the land. The first step in any boundary-related dispute is to verify the encroachment via an official survey and, if confirmed, seek to resolve the matter amicably or through the barangay conciliation process. If the dispute escalates, Philippine laws provide clear judicial procedures (ejectment, accion publiciana, accion reivindicatoria) by which courts can order the demolition or removal of the encroaching fence and, if warranted, award damages and costs against the encroaching party.

Key takeaway: From surveying boundaries and seeking amicable settlements to the enforcement of court orders, the ultimate burden and expense of removing an illegally built fence falls upon its builder or the person responsible for its maintenance, consistent with the principles of ownership, possession, and fairness under Philippine law.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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