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Property Reviewer

Prof. Eduardo Labitag


AY 2009 2010, 1st Semester
Part 1. Definition and Classification of Property...1
Part 2. Ownership.14
Part 3. Right of Accession20
Part 4. Quieting of Title...42
Part 5. Co-ownership...46
Part 6. Possession65
Part 7. Usufruct78
Part 8. Easement of Servitudes..95
Part 9. Nuisance..110
Part 10. Modes of Acquiring Ownership114
Part 11. Donation.128
Part 12. Lease..143
Class Notes..158

Part 1. Definition and Classification of Property



A. Definition

Property an economic concept, meaning a mass of things or
objects useful to human activity and which are necessary to
life, for which reason they may in one way or another be
organized and distributed, but always for the use of man.

Right to property: the juridical tie by virtue of which
a person has the exclusive power to receive or
obtain all the benefits from a thing, except those
prohibited or restricted by law or by the rights of
others

Right to property v. Ownership: right to property
emphasizes vinculum between man and the thing,
while ownership refers to the mass of rights over a
thing these 2 are synonymously used

Article 414. All things which are or may be the object of
appropriation are considered either:
(1) Immovable or real property; or
(2) Movable or personal property.

Things
Property
All objects that exist and can
All those that are already
be of some use to man
appropriated
Those that are already
All those that can be
possessed and are found in
possessed
mans patrimony
In a juridical sense, includes
only objects which can be of
Things are property not only
utility to man object must
when they are useful to man
be one that can satisfy
but when they are
human needs, pleasure or
appropriated
comfort

The Code uses things and property as identical to each other


property includes NOT only things which are already possessed
but also those which are susceptible of being possessed by him

Requisites for an object to be considered a thing or property:
1) Utility capacity to satisfy human wants
2) Individuality and substantivity separate and autonomous
existence
3) Susceptibility of being appropriated those which cannot
be appropriated because of their distance, depth or
immensity cannot be considered as things (i.e. stars,
ocean) these are called common things

Human body as a whole, it is not considered as a thing; some
parts are considered things when separated from it (i.e. teeth,
hair)
Upon death, the corpse becomes a thing, although it
is not susceptible of appropriation and commerce by
reason of public morality.

Right of possession over the corpse is recognized in
the nearest relatives and the surviving spouse for the
purpose of adequate burial.

Res nullius things which have intentionally abandoned by
their owners; these are still considered in law as things, even if
for the moment they have no owners, because they can still be
the subject of appropriation

Res communes things which belong to everybody

Appropriation equivalent to occupation, which is the willful
apprehension of a corporeal object which has no owner, with
the intent to acquire its ownership

Rights as property things include not just material objects
but also rights

Only rights patrimonial in character can be
considered as things.

There are 2 kinds: Real rights (jus in re) and Personal
Rights (jus ad rem)


B. Classification by Transportability

1. Immovables or Real Property

Article 415. The following are immovable property:
(1) Land, buildings, roads and constructions of all kinds
adhered to the soil;

(2) Trees, plants, and growing fruits, while they are attached
to the land or form an integral part of an immovable;

(3) Everything attached to an immovable in a fixed manner, in
such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object;

(4) Statues, reliefs, paintings or other objects for use or

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Definition and Classification of Property

Property Reviewer

ornamentation, placed in buildings or on lands by the owner


of the immovable in such a manner that it reveals the
intention to attach them permanently to the tenements;

(5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or
works which may be carried on in a building or on a piece of
land, and which tend directly to meet the needs of the said
industry or works;

(6) Animal houses, pigeon-houses, beehives, fish ponds or
breeding places of similar nature, in case their owner has
placed them or preserves them with the intention to have
them permanently attached to the land, and forming a
permanent part of it; the animals in these places are included;

(7) Fertilizer actually used on a piece of land;

(8) Mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or stagnant;

(9) Docks and structures which, though floating, are intended
by their nature and object to remain at a fixed place on a river,
lake, or coast;

(10) Contracts for public works, and servitudes and other real
rights over immovable property.


a.

Immovables by nature those which cannot

b.

Immovables by incorporation those


which are essentially movables but are
attached to an immovable in such a way as
to be an integral part thereof (pars. 2. 3 &
7)
Immovables by destination those which

c.

be moved from place to place; their intrinsic


quality have no utility except in a fixed place
(pars. 1 & 8)

are essentially movables but by the purpose for


which they have been placed in an immovable,
partake of the nature of an immovable because
of the added utility derived therefrom (pars. 4,
5, 6 & 9)

d.

Immovables by analogy (par. 10)

Par. 1 (Lands, buildings and constructions)

Buildings are always immovables


o Their adherence to the land must be
permanent and substantial. They are
essentially immovables by incorporation.

Separate treatment by the parties of a building from


the land on which it stands, does not change the
immovable character of the building, which by itself
can be the subject of real estate mortgage.
o The nature of the building as realty is
independent of the way the parties deal
with it.

Buildings on rented land still immovable; the


ownership of the land on which they are erected
cannot change their nature as immovable property.
o The mere fact that a building was a subject
of a chattel mortgage and was considered
as personal property by the parties does
not make said building personal property.


Par. 2 (Trees and plants)

Trees and plants are only immovables when they are


attached to the land; hence, when they have been cut
or uprooted, they become movable.
o Timber is still immovable when it
constitutes an integral part of the
immovable.

Ungathered fruits or growing crops are movables for


the purpose of the Chattel Mortgage Law.
o For the purpose of attachment: growing
crops are to be attached in the same
manner as realty.

Par. 3 (Things incorporated)

Res vinta in Roman Law immovables by


incorporation and not by nature, destination or by
analogy.

When separated from the immovable, they regain


their condition as movable property.

The breakage or injury in case of separation must be


substantial.

There is no need for the owner himself to attach the


thing to the land.

Examples: wells, sewers, aqueducts and railways

Query: Suppose the properties are temporarily


removed, but there is an intention to replace them,
should they be considered real or personal property?
Personal inasmuch as the incorporation has
ceased

Par. 4 (Fixtures and ornaments)

Requisites:
o Placed by the owner or by the tenant as
agent of the owner;
o With intention of attaching them
permanently even if adherence will not
involve breakage or injury.

Where the improvement or ornaments placed by the


lessee are not to pass to the owner at the expiration
of the lease, they remain movables for chattel
mortgage purposes. (Davao Sawmill v. Castillo)

Par. 3 v. Par. 4:
Par. 3
Par. 4
Cannot be separated from
Can be separated from
immovable without breaking immovable without breaking
or deterioration
or deterioration
Must be placed by the owner,
Need not be placed by the
or by his agent, expressed or
owner
implied
Real property by
Real property by
incorporation
incorporation and destination

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Definition and Classification of Property

Property Reviewer

Par. 5 (Machinery and equipment)

The immovable condition of these objects depends


upon their being destined for use in the industry or
work in the tenement; the moment they are
separated, not necessarily from the immovable, but
from the industry or work in which they are utilized,
they recover their condition as movables.

Requisites:
o Placed by the owner or the tenant as agent
of the owner;
o Adapted to the needs of the industry or
work carried on

New machinery placed in a mortgaged central, to


replace old machinery, becomes subject to the prior
real estate mortgage (Berkenkotter v. Cu Unjieng)

Examples: furniture and equipment, but NOT work


animals

Effect of separation: If the machine is still in the


building but is no longer used in the industry
conducted therein, the machine reverts to the
condition of a chattel. If it is still needed for the
industry but separated from the tenement
temporarily, the property continues to be
immovable, inasmuch as par.5 refers, not to real
property by incorporation, but to real property by
destination.

Par. 6 (Animal houses and animals therein)

Requisites:
o Placed by the owner or the tenant as agent
of the owner, with the intention of
permanent attachment;
o Forming a permanent part of the
immovable.

Par. 7 (Fertilizer)

Should be on the land where they are to be utilized,


because it is only then that the intention of the
owner to use them on the tenement is beyond
doubt.
o Actually used means that it has been
spread over the land.

Par. 8 (Mineral deposits and waters)

When minerals have been extracted, they become


chattels.

Slag dump is the dirt and soil taken from a mine


and piled upon the surface of the ground. Inside the
dump can be found the minerals.

Waters referred to are those still attached to or


running thru the soil or the ground.

Par. 9 (Docks and fixed floating structures)

Vessels partake of a certain extent of the nature and


conditions of real property as to formalities for valid
transfer and period of adverse possession.
o Vessels are considered personal property
under CC.

A floating house tied to a shore or bank post and


used as a residence is considered real property,

considering that the waters on which it floats are


considered immovables. However, if the floating
house makes it a point to journey from place to
place, it assumes the category of a vessel.

Par. 10 (Realty by analogy)

Ex: servitude or easement, real mortgage,


antichresis, possessory retention, usufruct and
leases of real property

Effect of Enumeration the enumeration does not admit
other kinds of immovable properties. The distinction between
movables and immovables is made by the law itself and
parties, by their agreement, cannot attribute immovable
character to things which legally have the character of
movables.

2.

Movables or Personal Property


Article 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation which are not
included in the preceding article;

(2) Real property which by any special provision of law is
considered as personal property;

(3) Forces of nature which are brought under control by
science; and

(4) In general, all things which can be transported from place
to place without impairment of the real property to which
they are fixed.


Tests for movable character: (NOTE: Manresa mentions only
the 1st two tests)
1) By exclusion everything NOT included in Article 415
(par. 1); examples:
a. Ships or vessels irrespective of size;
b. interest in a business
2) By description an object is immovable if it possesses
(par. 4):
a. Ability to change location whether it can
be carried from place to place;
b. Without substantial injury to the immovable
to which it is attached.
3) By special provision real property is considered as
personal property (par. 2); examples:
a. Growing crops under the Chattel Mortgage
Law
b. Machinery installed by a lessee not acting
as agent of the owner (Davao Sawmill)
4) By forces of nature this would include electricity,
gas, heat, oxygen

Semi-movables these are now classified as movables; they
include all those which are susceptible of moving by themselves
without assistance from any outside force (ex: animals)

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Definition and Classification of Property

Property Reviewer

Intellectual property personal property; it consists in the


pecuniary benefit which the owner can get by the
reproduction or manufacture of his work.


Article 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their object
movables or demandable sums; and

(2) Shares of stock of agricultural, commercial and industrial
entities, although they may have real estate.


Obligations and actions personal rights; includes the infinite
variety of contracts, promises, or obligations which confer on
one party the right to recover movable property or a sum of
money from another by action.

Shares of stocks personal property
The term entities should be deemed to include all
juridical persons, even partnerships although they do not
issue shares of stocks.

Cases:
Davao Sawmill conducted business on anothers land and it is
shown that it has treated the machineries (mounted on
cement) in question as its personal property. When it
executed a chattel mortgage on its machineries, it was
foreclosed and a writ of execution was made over the
machineries in favor of respondents. Davao Sawmill contends
that such machineries are real property citing 1st provision of
Art. 334 (415 NCC).

The machineries were rightfully treated as personalty and
levied upon in favor of respondents. While not conclusive, the
characterization of the property as chattels is indicative of the
owners intention and impresses upon the property the
character determined by the parties. Also, machinery which is
movable in its nature only becomes immobilized when placed
in a plant by the owner of the property or plant, but not when
so placed by a tenant, a usufructuary, or any person having
only a temporary right, unless such person acted as the agent
of the owner. One only having a temporary right to the
possession or enjoyment of property is not presumed by the
law to have applied movable property belonging to him so as
to deprive him of it by causing it, by an act of immobilization,
to become the property of another. (Davao Sawmill v.
Castillo)
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Mabalacat Sugar obtained a loan from Cu Unjieng secured by a
mortgage constituted on 2 parcels of land "with all its
buildings, improvements now existing or that may in the
future exist in said lots. Mabalacat bought additional
machinery and equipment for the lands, the payment for
which was advanced by Berkenkotter. Mabalacat thereby
bound itself in favor of Berkenkotter that the machineries be
treated as securities for its debt and that it would not
mortgage the machineries to anybody until Berkenkotter has
been paid. Berkenkotter claims now that the additional
machineries are not permanent, hence not included in the
mortgage to Cu Unjieng.

The additional machinery is a part of the real property


mortgaged to Cu Unjieng because Art 334 (415 NCC) deems
real property - machineries intended by the owner of any
building or land for use in connection with any industry or
trade being carried on therein and which are expressly
adapted to meet the requirements of such trade or industry.
The fact that it was treated as security in favor of
Berkenkotter does not alter the permanent character of
machinerys incorporation to the mortgage. What should have
been done was to stipulate the exclusion of the machinery
from the mortgage. (Berkenkotter v. Cu Unjieng)
www
Lopez supplied the lumber for the business of Orosa. Lopez
was not fully paid. Its shown that the land and building of
Orosas business was mortgaged to another party. Lopez
remained unpaid and filed case against Orosa and the
business. The lower court and CA held Orosa and the business
liable, and Lopez acquired a materialman's lien over the
property (over and above the mortgage); the lien being
merely confined to the building and did not extend to the land
on which the construction was made. Lopez now seeks to also
include the land in his lien.

The materialmans lien (refectionary) attaches only to the
building and not to the land. While it is true that generally, real
estate connotes the land and the building constructed
thereon, it is obvious that the inclusion of the building,
separate and distinct from the land, in the enumeration of
what may constitute real properties could mean only one
thing that a building is by itself an immovable property.

Also, in this case, the materialman's lien could be charged only
to the building for which the credit was made or which
received the benefit of refection, the interest of the
mortgagee over the land is superior and cannot be made
subject to the said materialman's lien. (Lopez v. Orosa)
www
Vicencio executed chattel mortgage over their house in favor
of Tumalad as security for a loan. Such house was being rented
from Madrigal & Co. Upon failure to pay, the mortgage on the
house was extrajudicially foreclosed and the Tumalads were
the highest bidders. The Tumalads filed a civil case against
Vicencio to vacate and to surrender to them the possession of
the house.

The chattel mortgage over the house is valid. The doctrine of
estoppel applies to the parties, having treated the subject
house as personalty. In support of this, the SC reiterates its
previous rulings on the matter: The view that parties to a deed
of chattel mortgage may agree to consider a house as
personal property for the purposes of said contract is good;
but, only insofar as the contracting parties are concerned. It is
based, partly, upon the principle of estoppel. Also, a
mortgaged house built on a rented land was held to be a
personal property, not only because the deed of mortgage
considered it as such, but also because it did not form part of
the land, for it is now settled that an object placed on land by
one who had only a temporary right to the same, such as the
lessee or usufructuary, does not become immobilized by
attachment.

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Definition and Classification of Property

Property Reviewer

However, in this case, since the period of redemption by the


Vicencios has not yet expired, the action by the Tumalads for
possession of the house is premature. (Tumalad v. Vicencio)
[Criticism: estoppel applies to mistake of fact and not to law.]
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Spouses Valino executed a chattel mortgage on their house in
favor of AI, who was the surety for their debt to NARIC. They
subsequently executed a real estate mortgage over their
house and lot in favor of Iya. Upon failure to pay NARIC, AI
then foreclosed the chattel mortgage as a result of which it
caused the said house to be declared in its name.
Subsequently, upon failure to pay Iya, the latter also
foreclosed the mortgage of the land and the improvements on
it. AI filed a case to exclude the house from the real estate
mortgage while Iya filed the case to satisfy her claims from
foreclosure on the house and lot.

The rights of Iya from the real estate mortgage to foreclose
both the house and lot is preferred. As personal properties
could only be the subject of a chattel mortgage, the execution
of the chattel mortgage covering a building is clearly invalid
and a nullity. While it is true that said document was
correspondingly registered in the Chattel Mortgage Register,
this act produced no effect whatsoever for where the interest
conveyed is in the nature of a real property, the registration of
the document in the registry of chattels is merely a futile act.
Thus, the registration of the chattel mortgage of a building of
strong materials produce no effect as far as the building is
concerned. And there is no right acquired by a chattel
mortgage creditor who purchases real properties in an
extrajudicial foreclosure sale by virtue of that chattel
mortgage, which mortgage has been declared null and void
with respect to said real properties. (Note: 3rd party Iya
assailing the chattel mortgage agreement) (Associated
Insurance v. Iya)
www
Wearever executed a chattel mortgage over certain raw
materials inventory as well as a machinery. Wearever
defaulted and Makati Leasing filed a complaint for judicial
foreclosure. Makati Leasing also applied for an action of
replevin against the machinery.

The machinery was rightfully treated as a personal property
and subject to the effects of an action for replevin and chattel
mortgage. The doctrine of estoppel applies to Wearever,
having treated the subject matter as personalty. One who has
so agreed is estopped from denying the existence of the
chattel mortgage. It is undeniable that the parties to a
contract may by agreement treat as personal property that
which by nature would be real property, as long as no interest
of third parties would be prejudiced thereby. Equity dictates
that one should not benefit at the expense of another. Also,
Wearever could not be allowed to impugn the efficacy of the
chattel mortgage after it has benefited therefrom. (Makati
Leasing v. Wearever)
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Acquiring a franchise, Meralco constructed 40 steel towers to
transmit electricity. These towers were assessed for real
property tax. Meralco claims that the towers are poles,
which are tax exempt under the franchise.

The steel towers are personal properties exempted from real


property tax. A reading of the franchise granted to Meralco as
well as US cases would show that the word poles also cover
the steel towers subject hereof. Moreover, while the tax law
does not provide for a definition of real property, Art. 415
does. The steel towers or supports do not come within the
objects mentioned in paragraph 1, because they do not
constitute buildings or constructions adhered to the soil. They
are not constructions analogous to buildings nor adhering to
the soil. They are removable and merely attached to a square
metal frame by means of bolts, which when unscrewed could
easily be dismantled and moved from place to place. They can
not be included under paragraph 3, as they are not attached to
an immovable in a fixed manner, and they can be separated
without breaking the material or causing deterioration upon
the object to which they are attached. Each of these steel
towers or supports consists of steel bars or metal strips,
joined together by means of bolts, which can be disassembled
by unscrewing the bolts and reassembled by screwing the
same. These steel towers or supports do not also fall under
paragraph 5, for they are not machineries or receptacles,
instruments or implements, and even if they were, they are
not intended for industry or works on the land. Petitioner is
not engaged in an industry or works on the land in which the
steel supports or towers are constructed. (Board of
Assessment Appeals v. Meralco)
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The pipeline system consists of cylindrical steel pipes joined
together and buried not less than 1 meter below the surface
along the shoulder of the public highway. This pipeline was
assessed for real property tax.
It is incontestable that the pipeline here does not fall within
any of the classes of exempt real property enumerated in the
Assessment Law and the Real Property Tax Code. The pipeline
here falls under Art. 415 [1] and [3] since it is a construction
adhering to the soil; and, it is attached to the land in such a
way that it cannot be separated therefrom without
dismantling the steel pipes which were welded to form the
pipeline. (Note: pipeline system as a whole)

Insofar as the pipeline uses valves, pumps and control devices
to maintain the oil flow, it is in a sense machinery within the
meaning of the Real Property Tax Code. (Meralco Securities v.
Board of Assessment)
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2 storage tanks are installed on land leased by Meralco. Realty
taxes were imposed on the tanks since the foundation, on
which the tanks rest, and other integral parts thereof, are
affixed to the land. Meralco stresses the fact that the tanks
are not attached to the land and that they were placed on
leased land not owned by it.

This is one of those borderline or penumbral cases. It has to be
resolved in light of the provisions of the Assessment Law,
Commonwealth Act No. 470, Real Property Tax Code, and the
Presidential Decree No. 464. In these laws, improvements are
taxable as real property.

While the 2 storage tanks are not embedded in the land, they
may, nevertheless, be considered as improvements on the

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Definition and Classification of Property

Property Reviewer

land, enhancing its utility and rendering it useful to the oil


industry. The tanks have been installed with some degree of
permanence as receptacles for the considerable quantities of
oil needed by Meralco for its operations. For purposes of
taxation, the term real property may include things which
should generally be regarded as personal property. (Meralco
v. Central Board of Assessment )
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Caltex loaned machinery and equipment installed by Caltex
(Philippines) in its gas stations located on leased land. Caltex
retains ownership thereof during the term of the lease. For
purposes of taxation, the items were treated by the Board as
taxable realty under the Real Property Tax Code and PD 464,
and that the definitions in Art. 415-6 are not applicable to this
case.

The said equipment and machinery, as appurtenances to the
gas station building or shed owned by Caltex (as to which it is
subject to realty tax) and which fixtures are necessary to the
operation of the gas station, for without them the gas station
would be useless, and which have been attached or affixed
permanently to the gas station site or embedded therein, are
taxable improvements and machinery within the meaning of
the Assessment Law and the Real Property Tax Code.

Improvements on land are commonly taxed as realty even
though for some purposes they might be considered
personalty . It is a familiar phenomenon to see things classed
as real property for purposes of taxation which on general
principle might be considered personal property. (Caltex v.
Board of Assessment Appeals)
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Realty tax was imposed on the tailings dam and the land
thereunder. Benguet does not dispute that the dam may be
considered realty under Art 415 but it insists that the dam
cannot be subjected to realty tax as a separate and
independent propertybecause it does not constitute an
assessable improvement on the mine within the meaning of
the Real Property Tax Code.

Since the Real Property Tax Code does not define real
property, Art 415 of the CC applies. In this case the pertinent
portions are Art 415 [1] and [3]. Likewise, under the Real
Property Tax Code, an improvements are taxable. In this case,
the court concludes that it appears that whether a structure
constitutes an improvement so as to partake the status of
realty would depend upon the degree of permanence
intended in its construction and use. The expression
permanent as applied to an improvement does not imply
that the improvement must be used perpetually but only until
the purpose to which the principal realty is devoted has been
accomplished. The subject dam falls within the definition of an
improvement because it is permanent in character and it
enhances both the value and utility of the mine. (Benguet
Corp. v. Central Board of Assessment Appeals)

3.

Importance and Significance of Classification

a.

Criminal law

Usurpation of property can take place only with respect to real


property.

Robbery and theft can be committed only against personal
property.


b.

Form of contracts involving movables and


immovables


Subject matter only real property can be the subject of real
mortgage and antichresis; only personal property can be the
subject of simple loan or mutuum, voluntary deposit, pledge
and chattel mortgage.

Donation real property public instrument; personal
property private instrument

To affect 3rd persons - Transactions involving real property
must be recorded in the Registry of Property; this is not so in
the case of personal property

c.

Prescription


Although there is bad faith, ownership of real property may be
acquired in 30 years; for personal property, 8 years


d.

Venue

e.

Taxation

Double sales under 1544


Immovables are governed by the law of the country wherein
they are located, whereas movables are governed by the
personal laws of the owner which in some cases is the law of
his nationality and in other cases, the law of his domicile.

f.


Publicity and recordings are more important for immovables
(ex: double sale). As to movables, possession is equivalent to
title.


g.
h.

Preference of credits

Causes of action to recover


Proper action to recover possession of real property may be
an action for forcible entry and unlawful detainer. For personal
property, replevin or manual delivery.

4.


Differences between Real Rights and Personal
Rights


Real rights (jus in re) power belonging to a person over a
specific thing, without a passive subject determined against
whom such right may be personally exercised
Characteristics: (1) a subject and an object
connected by a relation of ownership of the former
over the latter; (2) general obligation or duty of

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Definition and Classification of Property

Property Reviewer

respect for such relation, there being no particular


passive subject; (3) effective actions recognized by
law to protect such relation against anyone who may
want to disturb it.

Personal rights (jus ad rem) power belonging to one person
to demand of another, as a definite passive subject, the
fulfillment of a prestation to give, to do or not to do

Characteristics: (1) 2 subjects, active and passive,
who are determined and specified; (2) general
obligation on the part of 3rd persons to respect the
relation between the active and passive subjects; (3)
effective actions in favor of the active subject against
the passive subject for the performance of the
prestation by the latter so that the relation between
them may produce its natural and juridical effects.


Distinctions
By the no. of
persons involved in
juridical relation
By the object of the
juridical relation
By the manner in
which the will of
the active subject
affects the thing
By the cause
creating the
juridical relation
By the methods of
extinguishment of
the juridical
relation
By the nature of
the actions arising
from them


C.

Real
One definite active
subject, rest of the
world as passive

Personal
Definite active and
passive subjects

Corporeal thing

Intangible thing

Directly affects the


thing

Indirectly affects
the things through
the prestation of
the debtor

Mode and title

Title alone

Extinguished by
loss or destruction
of the thing
Give rise to real
actions against 3rd
persons

Not extinguished
by the loss or
destruction of the
thing
Only personal
actions against the
definite debtor

Classification by Ownership

Article 419. Property is either of public dominion or of private


ownership.

Public dominion Owned by the State in its public or
sovereign capacity and intended for public use and not for the
use of the State as a juridical person. It is held in trust for the
interest of the community.

Private ownership can be exercised by the State in its
private capacity or by private persons

Public Dominion v. Ownership:

Public dominion does not import the idea of


ownership. Property of public dominion is not owned
by the State but simply under its jurisdiction and
administration for the collective enjoyment of all the
people of the State of which it is the territorial
sovereign.

The purpose of property of public dominion is not to


serve the State as a juridical person but the citizens;
it is intended for the common and public welfare, so
it cannot be the object of appropriation either by the
State or by private persons.
The relation of the State and this property arises
from the fact that the State is the juridical
representative of the social group, and as such it
takes care of and preserves the same, and regulates
its use for the general welfare.

1.

Res Nullius

This does not belong and are not enjoyed by anyone such as
abandoned property.

2.

Public Dominion


Property of public dominion property of the State in its
public capacity. Such properties are those intended for public
use, for some public service, or for the development of the
national wealth.

Dominium - capacity of the State to own or acquire property.

a.

Property of State


Article 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth.

i.

For public use


Shores means that portion of land which is subject to the
ebb and flow of the waters of the sea.

May be used by everybody, even by strangers or aliens, in
accordance with its nature; but nobody can exercise over it
the rights of a private owner.

Examples of others of similar character public streams,
natural beds of rivers, river channels, waters of rivers, creeks,
accretions to the shore of the sea by the action of the water,
reclaimed lands, private lands which have been invaded by the
waters or waves of the sea and converted into portions of the
shore or beach, streets.

ii.

For public service


Includes fortresses, unleased mines and civil buildings.

Does not distinguish between movables and immovables;
hence, whatever the condition of the property, provided it is
for public service, it falls within this category.

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Definition and Classification of Property

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Public use
May be used by anyone
indiscriminately

Public service
May be used only by
authorized persons

iii.

For development and national wealth


Includes natural resources such as minerals, coal, oil and forest

Cases:
RA 7942 (Philippine Mining Act of 1995) was passed to govern
the exploration, development, utilization and processing of all
mineral resources. R.A. No. 7942 defines the modes of mineral
agreements for mining operations, outlines the procedure for
their filing and approval, assignment/transfer and withdrawal,
and fixes their terms. Similar provisions govern financial or
technical assistance agreements (FTAAs). President entered
into an FTAA with WMCP covering 99,387 hectares of land in
South Cotabato, Sultan Kudarat, Davao del Sur and North
Cotabato. Also, 100 FTAA applications had already been filed,
covering an area of 8.4 million hectares, 64 of which
applications are by fully foreign-owned corporations covering
a total of 5.8 million hectares, and at least one by a fully
foreign-owned mining company over offshore areas. The
constitutionality of RA 7942 and its related issuances are
questioned. The arguments of the respondents sought to
enforce their theory that under the 1987 Constitution, their
contracts rooted from RA 7942, which practically allows a even
a foreign corporation to fully manage and operate all aspect of
the mining activity, are valid and supported.

R.A. No. 7942 is invalid insofar as said Act authorizes service
contracts. Although the statute employs the phrase "financial
and technical agreements" in accordance with the 1987
Constitution, it actually treats these agreements as service
contracts that grant beneficial ownership to foreign
contractors over the nation's mineral resources, leaving the
State with nothing but bare title thereto, it being contrary to
the fundamental law.

Tracing back the development of the laws (Constitution and
statutes) relating to the natural resources of the Philippines, it
can be concluded that upon the enactment of the 1987
Constitution, its intention is to retain the Regalian doctrine
All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. This
intention is qualified by other provisions in the same article
regarding the property of the state. It can be seen that the
provision balances the need for foreign capital and technology
with the need to maintain the national sovereignty. It
recognizes the fact that as long as Filipinos can formulate their
own terms in their own territory, there is no danger of
relinquishing sovereignty to foreign interests.

The WMCP FTAA is a service contract. It violates the
Constitution because it is contrary to the language of the
Constitution Section 2, Article XII of the Constitution: FTAAs
should be limited to "technical or financial assistance" only.
The WMCP FTAA allows WMCP, a fully foreign-owned mining

corporation, to extend more than mere financial or technical


assistance to the State, for it permits WMCP to manage and
operate every aspect of the mining activity.

The phrase "service contracts" has been deleted in the 1987
Constitution's Article on National Economy and Patrimony. If
the CONCOM intended to retain the concept of service
contracts under the 1973 Constitution, it could have simply
adopted the old terminology ("service contracts") instead of
employing new and unfamiliar terms ("agreements . . .
involving either technical or financial assistance"). This leads
to the inevitable conclusion that under the new Constitution,
foreign investors (fully alien-owned) can NOT participate in
Filipino enterprises except to provide: (1) Technical Assistance
for highly technical enterprises; and (2) Financial Assistance
for large-scale enterprises. The intent of this provision, as well
as other provisions on foreign investments, is to prevent the
practice (prevalent in the Marcos government) of skirting the
60/40 ownership equation using the cover of service
contracts.

The rationale for specifically removing service contracts is
that these lodge exclusive management and control of the
enterprise to the service contractor like the old concession
regime where the concessionaire had complete control over
the country's natural resources, having been given exclusive
and plenary rights to exploit a particular resource and, in
effect, having been assured of ownership of that resource at
the point of extraction. Service contracts, hence, are
antithetical to the principle of sovereignty over our natural
resources, as well as the constitutional provision on
nationalization or Filipinization of the exploitation of our
natural resources. (La Bugal-Blaan Tribal Association v.
Ramos, Jan 27, 2004)
www
Motion for Reconsideration of the decision of the SC declaring
unconstitutional certain provisions of RA. 7942 and laws
related and pursuant to it, on the ground that such provisions
are in the nature of service contracts and are therefore
contrary to the law of the land. Stress is made on the fact that
WMCP has transferred its shares to a Filipino corporation
Sagittarius.

The FTAA is not per se defective or unconstitutional. It was
questioned only because it had been issued to an allegedly
non-qualified, foreign-owned corporation. Nothing in the
Constitutional provision prohibits the State from entering into
an FTAA with a Filipino Corporation. When the transfer of the
FTAA happens to be a Filipino corporation, the need for such
safeguard is not critical.

The court concedes that there exists the distinct possibility
that one or more of the future FTAAs will be the subject of yet
another suit grounded on constitutional issues. The Court
must recognize the exceptional character of the situation and
the paramount public interest involved, as well as the
necessity for a ruling to put an end to the uncertainties
plaguing the mining industry and the affected communities as
a result of doubts cast upon the constitutionality and validity

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Definition and Classification of Property

Property Reviewer

of the Mining Act, the subject FTAA and future FTAAs, and the
need to avert a multiplicity of suits.

The basic issue, which goes back to the laws passed and the
contentions as to their validity, relates to the question of
whether or not Congress, DENR and the President acted
within their jurisdiction. The SC finds that they did act within
their respective jurisdictions. Under the doctrine of separation
of powers and due respect for co-equal and coordinate
branches of government, this Court must restrain itself from
intruding into policy matters and must allow the President and
Congress maximum discretion in using the resources of our
country and in securing the assistance of foreign groups to
eradicate the grinding poverty of our people and answer their
cry or viable employment opportunities in this country. Let the
development of the mining industry be the responsibility of
the political branches of the government. And let not this
Court interfere inordinately and unnecessarily. (La Bugal-
Blaan Tribal Association v. Ramos, on Reconsideration, Dec.
2004, Feb. 2005)
www
Under the Amended Joint Venture Agreement (JVA) entered
into by PEA and AMARI (a private corporation), the JVA covers
a reclamation area of 750 has. Only 157.84 has. of the 750-has.
reclamation project have been reclaimed, and the rest of the
592.15 has. are still submerged areas forming part of Manila
Bay. Under the agreement, AMARI will acquire and own a
maximum of 367.5 has. of reclaimed land which will be titled in
its name. The issue is whether AMARI can acquire and own
under the Amended JVA 367.5 has, of reclaimed foreshore and
submerged areas in Manila Bay in view of Sections 2 and 3,
Article 12 of the 1987 Const.

Under Section 2, Article 12 of the 1987 Const, the foreshore
and submerged areas of Manila Bay are part of the lands of
the public domain, waters xxx and other natural resources
and consequently owned by the State. As such, foreshore and
submerged areas shall not be alienated, unless they are
classified as agricultural lands of the public domain. There
must be a law or presidential proclamation officially classifying
these reclaimed lands as alienable or disposable and open to
disposition or concession. Moreover, these reclaimed lands
cannot be classified as alienable or disposable if the law has
reserved them for some public or quasi-public use.

PD No. 1085, coupled with President Aquino's actual issuance
of a special patent covering the Freedom Islands, is equivalent
to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain, and also
constitute a declaration that the Freedom Islands are no
longer needed for public service. The Freedom Islands (157.84
has.) are thus alienable or disposable lands of the public
domain, open to disposition or concession to qualified parties.
PEA may lease these lands to private corporations but may not
sell or transfer ownership of these lands to private
corporations. PEA may only sell these lands to Philippine
citizens, subject to the ownership limitations in the 1987 Const.
and existing laws.

As regards the submerged 592.15 has of land, there is no


legislative or Presidential act classifying these submerged areas
as alienable or disposable lands of the public domain open to
disposition. These submerged areas are not covered by any
patent or certificate of title. There can be no dispute that
these submerged areas form part of the public domain, and in
their present state are inalienable and outside the commerce
of man. Until reclaimed from the sea, these submerged areas
are, under the Constitution, "waters x x x owned by the
State," forming part of the public domain and consequently
inalienable.

Since the Amended JVA seeks to transfer to AMARI, a private
corporation, ownership of 77.34 hectares of the Freedom
Islands, such transfer is void for being contrary to Section 3,
Article 12 of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the
public domain.

Since the Amended JVA also seeks to transfer to AMARI
ownership of 290.156 hectares of still submerged areas of
Manila Bay, such transfer is void for being contrary to Section
2, Article 12 of the 1987 Constitution which prohibits the
alienation of natural resources other than agricultural lands of
the public domain. PEA may reclaim these submerged areas.
Thereafter, the government can classify the reclaimed lands as
alienable or disposable, and further declare them no longer
needed for public service. Still, the transfer of such reclaimed
alienable lands of the public domain to AMARI will be void in
view of Section 3, Article XII of the 1987 Constitution which
prohibits private corporations from acquiring any kind of
alienable land of the public domain. (Chavez v. Public Estates
Authority) *Note, decision was affirmed on Reconsideration
www
Between the the houses of the Useros and the Resp. is a low-
level strip of land, with a stagnant body of water filled with
floating water lilies that causes considerable damage to the
house of respondents whenever it storms. The respondents
then made some construction on the low-level strip of land
and rip-rapped the soil on it. The Useros claimed that they
owned that portion of the land and filed a case of forcible
entry against resp. The resp. alleges that the the subject land
is part of the creek and therefore is part of the public domain.

All the pieces of evidence taken together, it can be concluded
that the subject strip of land is a creek and belongs to no one
but the state. Property is either of public dominion or private
ownership. In reference to Art 420, the phrase others of
similar character includes a creek which is a recess or an arm
of a river. It is property belonging to the public domain which
is not susceptible to private ownership. Being public water, a
creek cannot be registered under the Torrens System in the
name of any individual. The respondents may therefore
construct on the land strip to prevent damages to their
property. (Usero v. CA)
www
Acme purchased the lands in question from Mariano and Acer
Infiel in 1962. The Infiels are members of the national cultural
minorities who had, by themselves and through their
progenitors, possessed and occupied those lands since time

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Definition and Classification of Property

Property Reviewer

immemorial, or for more than the required 30-yeard period


and were, by reason thereof, entitled to exercise the right
granted in Section 48 of the Public Land Act to have their title
judicially confirmed. Acme sought to register their ownership
over the lands in 1981. This was opposed by the Director
stating that since it was sought to be registered in 1981, the
1973 Constitution applies. And the 1973 Constitution would
prevent such registration as it prohibits private corporations
to hold lands of the public domain except in lease not
exceeding 1,000 has. The question turns upon a determination
of the character of the lands at the time of institution of the
registration proceedings in 1981. If they were then still part of
the public domain, then the registration is prohibited. If they
were already private lands, the constitutional prohibition does
not apply.

The rule is that alienable public land held by a possessor,
personally or through his predecessors-in-interest, openly,
continuously and exclusively for the prescribed statutory
period (30 yrs under The Public Land Act, as amended) is
converted to private property by the mere lapse or completion
of the said period by operation of law. The application for
confirmation is mere formality. Following that rule and on the
basis of the undisputed facts, the land subject here was
already private property at the time it was acquired from the
Infiels by Acme in 1962. Acme thereby acquired a registrable
title, there being at the time (1962) no prohibition against said
corporations holding or owning private land. The accidental
circumstance that the proceedings were done under the aegis
of the 1973 Constitution which forbids corporations from
owning lands of the public domain cannot defeat a right
already vested before that law came into effect. (Director of
Lands v. IAC)

b.

Property of Municipal Corporations

Article 424. Property for public use, in the provinces, cities,


and municipalities, consist of the provincial roads, city streets,
municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by
said provinces, cities, or municipalities.

i.

For public use including public works


for public service


They are outside the commerce of man and therefore cannot
be the subject matter of private contracts, they cannot be
acquired by prescription and they are not subject to
attachment and execution.

3.

Private Property
a.

Patrimonial Property of the State


Article 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
property.

Patrimonial property the property over which the State has


the same rights, and of which it may dispose, to the same
extent as private individuals in relation to their own property,
subject only to the administrative laws and regulations on the
procedure of exercising such rights. This kind of property
1) Enables the State to attain its economic ends
2) Serves as a means for the States subsistence and
preservation
3) Enables the State to fulfill its primary mission

Examples: friar lands, mangrove lands and mangrove swamps,
escheated properties and commercial buildings

May be acquired by private individuals or corporations thru
prescription.

Article 422. Property of public dominion, when no longer
intended for public use or for public service, shall form part of
the patrimonial property of the State.

Property of public dominion ceases to be such and becomes
private property of the State only upon a declaration by the
government, thru executive or legislative departments, to the
effect that it is no longer needed for public use or service.

Example: fortresses no longer used

b.

Patrimonial Property
Corporations

of

Municipal


Article 424. All other property possessed by any of them is
patrimonial and shall be governed by this Code, without
prejudice to the provisions of special laws.

The province or municipality, as a juridical entity, possesses
private property to answer for its economic necessities.

Properties of provinces, cities and municipalities may be
classified into:
1) Those acquired with their own funds (in their private
or corporate capacity) the political subdivision has
ownership and control
2) Those which do not fall under no. 1 subject to the
control and supervision of the state; held by the
political subdivision in trust for the state for the
benefit of the inhabitants

c.

Private Property of Private Persons


Article 425. Property of private ownership, besides the
patrimonial property of the State, provinces, cities, and
municipalities, consists of all property belonging to private
persons, either individually or collectively.

Refer to all property belonging to private persons either
individually or collectively.

Collectively refers to ownership by private individuals as co-
owners; or by corporations, partnerships, or other juridical

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Definition and Classification of Property

Property Reviewer

persons who are allowed by the CC to possess and acquire


properties.
Where a person has proved his right of ownership over a
piece of land, and it is not shown that the State has a superior
right thereto, the former must be recognized as owner even
as against the State.
Possession by private persons since time immemorial
carries the presumption that the land had never
been part of the public domain, or that it had been
private property even before the Spanish conquest.

Peculiar nature of ecclesiastical properties churches strictly
speaking are neither public nor private property. They
constitute a special kind of property devoted to religious
worship and as such, are outside the commerce of man.

Cases:
A writ of execution was issued against the municipal council
for failure to pay a money judgment against it. As a result, the
sheriff attached 2 auto trucks used for street sprinkling, one
police patrol auto, the police stations, and the markets,
including the lots occupied by them. The question involved is
whether this attachment is valid or void.

The attachment is void. Property for public use of the
municipality is not within the commerce of man so long as it is
used by the public and, consequently, said property is also
inalienable. Property, real and personal, held by municipalities,
in trust for the benefit of their inhabitants, and used for public
purposes, is exempt from execution. (Tantoco v. Municipal
Council)
www
By virtue of CA 39, the capital of Zamboanga province was
changed to Dipolog. Its former capital Municipality of
Zamboanga became Zamboanga City. CA 39 provided that the
properties (50 lots) left in Zamboanga City by Zamboanga
province has to be paid by the former. Thereafter, a Cabinet
Resolution was passed, which conveyed all such properties to
Zamb. City for P1.00. Then later on, RA 711 was passed, which
divided Zamboanga province into del Norte and del Sur. The
President issued a ruling holding that del Norte had a vested
right over the value of the properties mentioned in CA 39.
Because of this, Zamboanga City had to allocate some of its
revenue and pay Zamboanga del Norte. Later on, RA 3039 was
passed, which provided that all assets belonging to Zamb.
province are transferred freely to Zamb. City. Zamb. del Norte
assails the constitutionality of RA 3039.

SC holds that 26 lots are deemed patrimonial and Zamb. del
Norte is entitled to be compensated for these lands, while RA
3039 is valid as to the other 24 lots.

Properties owned by Zamboanga Province could have been
public or patrimonial. If the property is owned by the
municipality (meaning municipal corporation) in its public and
governmental capacity, the property is public and Congress
has absolute control over it. But if the property is owned in its
private or proprietary capacity, then it is patrimonial and
Congress has no absolute control. In this case, the municipality

cannot be deprived of it without due process and payment of


just compensation.

There are 2 norms of classifying the properties based on the
Art. 423-4 of CC and based on the Law of Municipal
Corporations.
Applying the norm in the CC, all the properties in question,
except the two (2) lots used as HS playgrounds, could be
considered as patrimonial properties of the former
Zamboanga province.

Applying the norm obtaining under the principles constituting
the law of Municipal Corporations, all those of the 50
properties in question which are devoted to public service are
deemed public; the rest remain patrimonial. Under this norm,
to be considered public, it is enough that the property be held
and devoted for governmental purposes like local
administration, public education, public health, etc.

The Court is more inclined to uphold the view that the
controversy is more along the domains of the Law of
Municipal Corporations than along that of Civil Law. The Court
is not inclined to hold that municipal property held and
devoted to public service is in the same category as ordinary
private property. The consequences are dire. As ordinary
private properties, they can be levied upon and attached. They
can even be acquired thru adverse possession, all these to the
detriment of the local community. Moreover, the Law of Mun.
Corp., for the purpose of Art. 424, can be considered as
special law. (Zamboanga del Norte v. City of Zamboanga)
www
RA 4118, passed by the Senate and approved by the President,
had the effect of converting the subject lot into patrimonial
property and being transferred to a government branch the
LTA. The mayor of the city brought an action to prohibit LTA
from further implementing RA 4118 as the law was
unconstitutional as it deprives the city its property without
due process and just compensation.

The land in question is not a patrimonial property of the city
and therefore, RA 4118 did not violate the right to due process.
The city failed to show by any shred of evidence in what
manner it acquired said land as its private or patrimonial
property. In the absence of a title deed to any land claimed by
the City of Manila as its own, showing that it was acquired
with its private or corporate funds, the presumption is that
such land came from the State upon the creation of the
municipality. The general rule is that regardless of the source
or classification of land in the possession of a municipality,
excepting those acquired with its own funds in its private or
corporate capacity, such property is held in trust for the State
for the benefit of its inhabitants, whether it be for
governmental or proprietary purposes. It holds such lands
subject to the paramount power of the legislature to dispose
of the same, for after all it owes its creation to it as an agent
for the performance of a part of its public work, the
municipality being but a subdivision or instrumentality thereof
for purposes of local administration. (Salas v. Jarencio)
www

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The land in question was part of the public road, but it was
declared by the city as an abandoned road. It was later on sold
in a public bidding where Cebu Oxygen Co. was the highest
bidder, who sought to register the land in its name. City fiscal
opposed to dismiss the registration saying the property is
outside the commerce of man as it is part of the public
domain.

The sale is valid. The City Charter of Cebu City gives the city the
right to declare a road as abandoned, to close a road or street,
and also to withdraw it from public use. Art. 442 of the CC
provides that when such property is withdrawn from public
use, it follows that such withdrawn portion becomes
patrimonial property. Consequently such property can be the
object of an ordinary contract. (Cebu v. Bercilles)
www
Money judgment was rendered against the municipality. When
the judgment became final, respondents moved for a writ of
execution. The municipality moved to quash the motion on the
ground that its property or funds are all public funds exempt
from execution.

The rule is that public funds are exempt from execution. Public
funds are held in trust for the people, intended and utilized for
the accomplishment of the purposes for which municipal
corporations are created. To subject said properties and public
fund to executions would materially impede, defeat, or even
destroy such purpose. Moreover, the Decree on Local Fiscal
Administration states that there must be a corresponding
appropriation before any money of the municipality may be
paid out. (Municipality of San Miguel v. Fernandez)
www
The lots formerly formed part of the parcel of land belonging
to the predecessor of Cabangis. Due to the action of the
Manila Bay waves, the land began to wear away until it
became completely submerged in water. When the
government undertook dredging procedures, it deposited the
sand and silt on the lands submerged in water until the land
part gradually formed the lots again. Cabangis then sought to
declare the lots for purposes of taxation.

The lots are held to be public land belonging to the
government. In a case of gradual encroachment or erosion by
the ebb and flow of the tide, private property may become
'property of public ownership,' as defined in article 339 of the
code, where it appears that the owner has to all intents and
purposes abandoned it and permitted it to be totally
destroyed, so as to become a part of the 'playa' (shore of the
sea), 'rada' (roadstead), or the like. They then pass to the
public domain, but the owner thus dispossessed does not
retain any right to the natural products resulting from their
new nature; it is a de facto case of eminent domain, and not
subject to indemnity." The lots in question having disappeared
on account of the gradual erosion due to the ebb and flow of
the tide, and having remained in such a state until they were
reclaimed from the sea by the filling in done by the
Government, they are public land. (Government v. Cabangis)

4.

Effect and Significance of Classification of


Property as Property of Public Dominion

a.
b.

Property is outside the commerce of man


Property cannot be the subject of
acquisitive prescription
c. Property cannot be attached or levied
upon in execution
d. Property cannot be burdened with a
voluntary easement

D. Other Classifications

1. By their physical existence

a. Corporeal

All property the existence of which can be determined by the
senses (res qui tangi possunt). Includes rights of ownership of
corporeal things.

b.

Incorporeal


Things having abstract existence, created by man and
representing value. Includes rights over incorporeal things,
credits, and real rights other than ownership over corporeal
things.

2.

By their autonomy or dependence


a.

Principal

b.

Accessory


Those to which other things are considered dependent or
subordinated, such as the land on which a house is built.


Those which are dependent upon or subordinated to the
principal. They are destined to complete, enhance or
ornament another property.

3.

By their subsistence after use


Article 418. Movable property is either consumable or
nonconsumable. To the first class belong those movables
which cannot be used in a manner appropriate to their nature
without their being consumed; to the second class belong all
the others.

a.

Consumable


Those whose use according to their nature destroys the
substance of the thing or causes their loss to the owner. (ex:
food)

Consumable goods cannot be the subject matter of a contract
of commodatum unless the purpose of the contract is not the
consumption of the object, as when it is merely for exhibition.

b. Non-consumable ex: money in coin

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i.

Differentiated from fungibles and


non-fungibles


Fungibles v. Non-fungibles:

The quality of being fungible depends upon their


possibility, because of their nature or the will of the
parties, of being substituted by others of the same
kind, not having a distinct individuality.

These are generally the things whose individuality


can be determined by counting, weighing or
measuring.

Consumable v. Fungible:

Fungible and non-fungible according to purpose,


depending on whether they can be substituted by
other things of the same kind, quality and quantity.

Consumable and non-consumable according to the


nature of the thing.

It is the intention of the parties to a contract which


determines whether the object is fungible or non-
fungible and not the consumable or non-consumable
nature of the thing.

b.


7.

c.

a.

4.

By reason of their susceptibility to division


a.

Divisible


Those which can be divided physically or juridically without
injury to their nature. Ex: piece of land or an inheritance.

Singular
i.
Simple
ii.
Compound


b.

Universal


When several things collectively form a single object in law
under one name.

8.

Susceptibility to appropriation


a.

Non-appropriable


b.

Appropriable
Already appropriated
Not yet appropriated

Susceptibility to commerce
i.
ii.

Deteriorable or non-deteriorable

Contents and constitution



Deteriorable those that deteriorate through use or by time
Non-deteriorable those that do not deteriorate

Future

Those which do not exist in actuality, but whose existence can


reasonably be expected with more or less probability, such as
ungathered fruits.

9.

a.

Within the commerce of man

Those which can be the object of juridical transactions.


b.

Outside the commerce of man

Those which cannot be the object of juridical transactions.


b.

Indivisible


Those which cannot be divided without destroying their
nature or rendering impossible the fulfillment of the juridical
relation of which they are object.


5.

By reason of designation
a.

Generic


That which indicates its homogenous nature, but not the
individual such as a horse, house, dress, without indicating it.

b.

Specific


That which indicates the specie or its nature and the individual,
such as the white horse of X.

6.

Existence in point of time


a.

Present

Those which exist in actuality, either physical or legal, such as,


the erected building.
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Part 2. Ownership

Article 427. Ownership may be exercised over things or rights.


A. Definition

Ownership It is independent right of exclusive enjoyment
and control of a thing for the purpose of deriving therefrom
all the advantages required by the reasonable needs of the
owner (or holder of the right) and the promotion of the
general welfare, but subject to the restrictions imposed by law
and rights of others. (J.B.L. Reyes)

Ownership is a relation in private law by virtue of which a
thing (or property right) pertaining to one person is
completely subjected to his will in everything not prohibited
by public law or the concurrence with the rights of another.
(Scialoja)

B. Bundle of rights included in Ownership



Article 428. The owner has the right to enjoy and dispose of a
thing, without other limitations than those established by law.

The owner has also a right of action against the holder and
possessor of the thing in order to recover it.

1) Jus Utendi receive what it produces
2) Jus Fruendi receive fruits
3) Jus Abutendi consume by use
4) Jus Disponendi dispose, alienate, encumber, transfer,
transform, destroy
5) Jus Vindicandi exclude others from possession of the
thing
6) *Jus Possidendi - possess

Article 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
therof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property.

Principle of self-help - This is a qualification to the rule that a
person should not take the law in his own hands; it is a sort of
self-defense. This doctrine authorizes the lawful possessor to
use reasonable force to prevent a threatened unlawful
invasion or usurpation of the property.

The actual invasion of property may consist of a mere
disturbance of possession or of a real dispossession. If it is
mere disturbance of possession, force may be used against it
at any time as long as it continues, even beyond the
prescriptive period for an action of forcible entry.

If the invasion, however, consists of real dispossession, force
to regain possession can be used only immediately after the
dispossession.


Who may use force - The right to use force to defend property
is given only to the immediate possessor but the possessor
need not have a real or personal right over the thing; he may
have no right over it at all. There must, however, be a real
aggression, an imminent violation of law.

Nature of Aggression - The aggression must be illicit or
unlawful. The right to self-help is not available against the
exercise of right by another.

It is immaterial that the aggression is executed because of
error of fact or law; the existence of the danger of violation of
law and right is sufficient, for the possessor is not in a position
to know the error of the aggressor and he has to make a quick
decision.

C.

Other specific rights found in Civil Code

1.

Right to exclude; self-help; doctrine of self


help; elements (see article 429)


Elements:
1) Person exercising right is the owner or lawful possessor
of the property;
2) There is actual or threatened unlawful physical invasion of
his property;
3) Use of force as may be reasonably necessary to repel or
prevent it
a) The right is available only when possession has not
been lost; otherwise, the owner or lawful possessor
should resort to the judicial process
b) The right may be exercised by a third person. In such
event, such person is acting as a negotiorum gestor
and the owner or possessor must indemnify him for
injuries sustained while exercising that right

2.

Right to enclose or fence

3.

Right to receive just compensation in case of


expropriation


Article 430. Every owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges, or
by any other means without detriment to servitudes
constituted thereon.

The right of an owner to enclose his tenement is limited by the
servitudes existing thereon.


Article 435. No person shall be deprived of his property except
by competent authority and for public use and always upon
payment of just compensation.


Should this requirement be not first complied with, the courts
shall protect and, in a proper case, restore the owner in his
possession.

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Public use or utility The question whether any particular use


is a public one, is ultimately a judicial question.

Necessity for the expropriation does not mean absolutely
indispensable, but requires only a reasonable necessity of the
taking for the purpose in view.

Payment of indemnity The payment is a condition precedent
to the taking of private property for public use.
That is to say, proprietary rights, except right of
occupation, are not affected by the condemnation
proceedings until the title has passed to the
petitioner, and that does not occur until the award of
compensation for damages has been satisfied.

Amount to be paid Just compensation, therefore, means a
fair and full equivalent for the loss sustained.

The owner is entitled to the market value of the condemned
property to which must be added his consequential damages,
if any, or, from which must be deducted his consequential
benefits, if any.

4.

Right to hidden treasure


Article 438. Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.

Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.

If the things found be of interest to science or the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated.


Article 439. By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry or other
precious objects, the lawful ownership of which does not
appear.

Concept of hidden treasure Two requirements:
1) that they consist of money, jewels, or other
precious objects
2) that they are hidden and unknown, such that
their finding is a real discovery

Precious objects The law seems to refer only to movables as
hidden treasure.

Owner unknown It is necessary, in order that the deposit be
considered hidden treasure, that the owner is not known.

Owner of hidden treasure:
1) If the finder is the owner of the property, the treasure
belongs to the owner of the property;

2)

3)
4)

If the finder is a third person, and he discovered it by


chance, he is entitled to of the value thereof. The other
half pertains to the owner of the property where it was
found.
If the finder is an intruder, he is not entitled to anything.
If the finder is the usufructuary, and he discovered the
hidden treasure by chance, then he is entitled to of the
value thereof. The other half belongs to the naked owner.


Note: By chance means that the finder has no intention to
search for the treasure.

5.

Right to accession


Article 440. The ownership of property gives the right by
accession to everything which is produced thereby, or which is
incorporated or attached thereto, either naturally or
artificially.

Accession, defined The right by virtue of which the owner of
a thing becomes the owner of everything that it may produce
or which may be inseparably united or incorporated thereto,
either naturally or artificially.

6.

Right to recover possession and/or ownership


Jus Vindicandi

a. Available actions to recover


possession/ownership

Re: Immovable Property

1)

2)

3)

Accion reivindicatoria recovery of ownership, not


merely possession; prescription: 30 years

Accion publiciana recovery of possession due to
tolerance of owner; availed of if action of forcible entry is
not filed in one year; prescription: 10 years
Accion interdictal prescription 1 year

a) Forcible entry illegal possession from the start;
prescription: 1 year from actual dispossession

Lawful possessor was unlawfully deprived
of possession through FISTS (Force,
Intimidation, Strategy, Threat or Stealth)


b)

Unlawful detainer illegal possession from failure to


vacate from the time a notice to vacate is given;
prescription: 1 year from the last notice


Demand may be personal or in writing.

Cases:
Petitioners filed a case with the RTC for a parcel of land they
claim to have been inherited from their father (who acquired
the property from respondents grandmother). Respondent
built a house on said property saying that he was given

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consent by his grandmother. The RTC took cognizance of the


case.

The CA reversed the RTC decision for lack of jurisdiction based
on a tax declaration showing an assessed value of P5,950
presented by Hilario.

The SC held that the RTC does not have jurisdiction over the
petitioners action. The petitioners theory is that their action
is one of accion reivindicatoria wherein regardless of the
assessed value, the RTC has jurisdiction. However, the claim
was not one for ownership but that of possession and thus, is
one of an accion publiciana. (Hilario v. Salvador)
www
A complaint for forcible entry through strategy and stealth
was filed by the private respondents against the petitioner
saying that the owner of the lot is their mother and that upon
death, the private respondents became co-owners. The
petitioner, on the other hand, claimed that he was given
permission by the lots overseer and true owners spouses
Terrado.

The court held that the action for forcible entry will not
prosper. While the crucial element of the issue of possession
in determining forcible entry is present, the complainant
private respondent must allege jurisdictional facts of prior
physical possession. In this case, the CA was wrong to hold
that the position of being an oppositor in the cadastral case
was sufficient to establish prior physical possession.
(Sampayan v. CA)
www
A previous occupant of a lot adjacent to petitioners lot built a
building that encroached upon the petitioners property. The
building is now used by the respondent spouses as a
warehouse.

When petitioner bought the property, he informed the
respondents that the building occupies a portion of his land
but allowed them to use it nevertheless.

11 years later, petitioner demanded that the spouses demolish
and remove part of the building encroaching his property but
the spouses refused to do so. Petitioner then filed a complaint
for illegal detainer.

The SC held that unlawful detainer was the proper remedy. An
unlawful detainer cause of action is based on a recovery of the
possession of a property whose possession was inceptively
lawful but became illegal when possession was not restored
despite the termination of the right.

Possession by tolerance is lawful but it becomes unlawful
when the possessor by tolerance refuses to vacate upon
demand of the owner. (Santos v. Ayon)
www
Respondent owner of property filed 21 ejectment complaints
after the refusal of the petitioners to vacate the lot.
Respondent has made a demand for such after previously
tolerating the construction of residential houses and other
improvements on her property without rent.

In an unlawful detainer case, it must be alleged that the


defendant was initially in lawful possession but the possession
becomes unlawful upon termination or expiration of his right
to possess.

In the case at bar, respondent alleged that she owned the lot
and tolerated construction and a subsequent withdrawal of
such tolerance. Thus, respondents ejectment complaint was
proper. (Ganila v. CA)
www
Mandaue Prime acquired properties in question & informed
the respondent spouses Ong to vacate. They filed an unlawful
detainer case. The respondents question the jurisdiction of the
court they filed it in claiming that the action should have been
accion reinvindicatoria.

The Court ruled that the complaint makes out a case for
unlawful detainer. The allegation in the complaint that there
was unlawful withholding of possession is sufficient to make
out a case for unlawful detainer, even without necessarily
employing the terminology of law. The phrase unlawful
withholding implies possession on the part of the defendant
which was legal in the beginning, having no other source than
a contract, express or implied, and which later expired as a
right and is being withheld by defendant. (Ross Rica v. Ong)
www
Respondent forcefully took possession of the subject lot.
Petitioners filed a complaint for recovery of possession and
ownership. Respondent questions the jurisdiction of the
lower court claiming that a forcible entry case has prescribed
because his possession has been for 2 years.

The Court held that the case should have been filed in the RTC
and not the MTC and the action should have been Accion
Publiciana or Accion Reinvindicatoria.

An action for forcible entry is a quieting process and the one
year bar for filing suit is in pursuance of the summary nature of
the action. After the lapse of the one year period, the suit
must be commenced in the RTC via an accion publiciana, a suit
for recovery of the right to possess. It is an ordinary civil
proceeding to determine the better right of possession of
realty independent of title. It also refers to an ejectment suit
filed after the expiration of one year from the accrual of the
cause of action or from the unlawful withholding of
possession of the realty independently of title. Likewise, a
case may be instituted before the same court as an accion
reivindicatoria, which is an action to recover ownership as well
as possession.

Note: Ei incumbit probation qui dicit, non qui negat He who
asserts, not he who denies, must prove. (Peralta-Labrador v.
Bugarin)

Re: Movable Property



4)

Replevin manual delivery of the property; prescription:


4 or 8 years

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b. Requisites for Recovery



Article 434. In an action to recover, the property must be
identified, and the plaintiff must rely on the strength of his
title and not on the weakness of the defendants claim.

Requisites for recovery The possessor of property has the
presumption of title in his favor. Thus, any person who claims
that he has a better right to the property must prove:
1) that he has a better title than the defendant to the
property; and
2) the identity of the property.

Identify the property May be established by presenting
evidence such as survey plan of the property or the testimony
of competent and credible witnesses.

Case:
Petitioners allege that they are owners of a parcel of land.
They find out that their neighbor to the west (respondent
Caballero) was selling their land.

They presented conflicting evidence, namely tax declarations
and other documents as regards the sale of the land to the
petitioners.

1st step in an action regarding property: know where the
property is. If you dont know the exact boundaries of the
property is then you cant file an action to protect it. The court
found that the evidence presented by the petitioners
presented (the documents alleging the sale and tax
declarations) did not properly identify the land in question.
(Seria V. Caballero)

Prove his right of ownership rely on strength of his
evidence not on weakness of defendants claim A person
who claims the ownership of property is duty bound to clearly
identify the land claimed, in accordance with the titles on
which he founds his right to ownership, and he shall not be
permitted to rely upon defects in the defendants title.

His right to recover must be founded on positive title or right,
and not merely on negative ones, such as lack or insufficiency
of title on the part of the defendant.

Proof of ownership Ownership may be proved by any
evidence admissible in law.

Once a decree of registration has been made under the
Torrens system and the period of 1 year has elapsed, the title
becomes perfect.

The ownership and title to land duly recorded cannot be
overcome by gratuitous titles, such as inheritance or donation
or mere tax declarations.

Tax declarations and receipts, however, are strong evidence of
ownership of land when accompanied by possession for a
period sufficient for prescription.

Long Possession The fact of long possession may be


established in conjunction with other proof of title in order to
show ownership.

Article 433. Actual possession under claim of ownership raises
a disputable presumption of ownership. The true owner must
resort to judicial process for the recovery of the property.

Cases:
Estanislao Montalbo owned a tract of land. When he died, his
properties passed on to his children, Petra and Felisa. By
mutual agreement, Petra and Felisa divided between
themselves the lands of their father. Felisa exchanged her
share with a parcel of land belonging to her aunt, Andrea
Montalbo. Andrea donated of the lot to the municipality for
use as a school site while the other half was given to her
daughter on the occasion of her marriage. Petras husband
learned of the exchange, and upon investigation, found that in
the deed of exchange, the signature of the municipal secretary
was forged. He then filed a criminal complaint against Andrea
Montalbo and Andreas son-in-law, Nicolas Mendoza.

The Court took note of the fact that the defendants have been
in continuous possession of the land openly, adversely and in
the concept of owners since 1927 and the plaintiffs have not
attempted to disturb defendants possession until 1952. The
defendants have therefore acquired ownership of the land
through acquisitive prescription.

Possession is an indicium of ownership of the thing possessed
and to the possessor goes the presumption that he holds the
thing under the claim of ownership. Article 433 states that the
actual possession under claim of ownership raises a disputable
presumption of ownership. As in the instant case there are
conflicting claims of possession by the parties over the land in
controversy and because the fact of possession cannot be
recognized at the same time in two different personalities
except in cases of co-possession the present possessor is to be
preferred pursuant to Article 538. The Mendozas are presently
in possession of the property and the presumption of
ownership in their favor has not been successfully rebutted by
evidence that they are mere lessees as the Perezes claimed.
There was no proof of lease, and the Mendozas were the ones
consulted for the road-widening project. (Perez v. Mendoza)
www
People trying to prove that theyre heirs of a property owner
and are therefore entitled to inheritance. All they had was
averments that they were related to the deceased. Therefore
their claim was a fail. (Dizon V CA)

D. Limitations of real right of ownership



1. General Limitation

a. Police power

Article 436. When any property is condemned or seized by
competent authority in the interest of health, safety or
security, the owner thereof shall not be entitled to

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compensation, unless he can show that such condemnation or


seizure is unjustified.

Police power limits ownership in the sense that a property
may be interfered with, even destroyed, if so demanded by
the welfare of the community. When property is impaired by
police power, the owner, unlike in eminent domain, is not
entitled to just compensation. It is a case of damage to
property without injury damnum absque injuria.

Extent of police power It is universally conceded to include
everything essential to public safety, health, and morals, and
to justify the destruction or abatement, by summary
proceedings, of whatever may be regarded as a public
nuisance.

Requisites To justify the exercise of police power, the
following must appear:
1) that the interests of the public generally, as distinguished
from those of a particular class, require such interference;
and
2) that the means are reasonably necessary for the
accomplishment of a purpose, and not unduly oppressive
upon individuals.

b.

Taxation


This is the inherent power of the State to raise revenue to
defray the necessary governmental expenses for a public
purpose. Through taxation, the governed who enjoy the
benefits of protection to their lives, liberty and property must
bear the financial burdens of the government. Thus, real and
personal property may be taxed and sold, if necessary, for the
non-payment of taxes.

c.

Eminent domain


It is the superior right of the State to acquire private property
for public use upon payment of just compensation.

Requisites To justify the exercise of the right of eminent
domain, the following requisites must all be present:
1) Private property as the object of the expropriation;
2) The property is taken by the State or by competent
authority;
3) The purpose of the taking is for public use;
4) The taking must be attended with due process of law;
5) There is payment of just compensation

2.

Specific Limitation


a.
b.

3.

Legal Servitudes
Limitations imposed by the party transmitting
the property

Limitation from scattered provisions of Civil


Code

Article 431. The owner of a thing cannot make use thereof in


such manner as to injure the rights of a third person.

Sic Utere Tuo Ut Alienum Non Laedas It is unlawful to
exercise the right of ownership in such a manner as to have no
other effect than to injure a third person without benefit to
the owner.

This is also the basis of a tort action for damages.

Article 432. The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is
necessary to avert an imminent danger and the threatened
damage, compared to the damage arising to the owner from
the interference, is much greater. The owner may demand
from the person benefited indemnity for the damage to him.

Act in State of Necessity When anothers property is used to
avert danger not arising from it. In other words, it is for the
purpose of protecting the actor himself or another person at
the expense of the owner of the property who has no part in
the state of necessity.

The source of danger is immaterial. It is necessary, however,
that the interference with anothers property be indispensable
to avert the threatened danger or damage.

Comparative danger The seriousness or gravity of the
danger must be much greater than the damage to the
property affected or destroyed by the protective act.

In determining the value of the property, not only the
economic but also the sentimental value of the property must
be considered.

Permissible acts The interference occasioned by a state of
necessity includes all acts on the property to avert the danger
or damage, including its destruction. The owner is obliged to
tolerate these acts.

Effect of mistake If through error, one believed himself to be
in a state of necessity, or used means in excess of the
requirements of the situation, his act would be illicit, and the
owner of the property can properly use against him the
defensive force authorized in Article 429 (Self-help doctrine).

Indemnity for damages The provision calling for indemnity
should be considered a general rule. By way of exception, if
the owner of the property causing the danger would have
been responsible for damages if the danger had not been
averted, then this fact deprives him of the right to indemnity.

Basis for liability Benefit derived.

See other provisions in the Civil Code:
1) 2191 (Liability of Proprietors)
2) 677 (Fortified places/Fortresses)
3) 644 & 678 (Easement of Aqueduct)
4) 679 (Planting of Trees)

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5) 670 (Easement of light and view)


6) 649 & 652 (Easement of right of way)
7) 637 (Easement of passage of water from upper to lower
tenements)

8) 676 (Drainage of buildings)


9) 684-687 (Easement of Lateral and Subjacent Support)


Cases:
Consti case of airplanes killing chickens because the farm was
beside an airfield. The farmer sued the government, among
one of the grounds was trespassing.

Note the ancient common law doctrine: cujus est solum ejus
est usque ad coelum (usque ad infernos) ownership of the
land to the periphery of the universe. This common law
doctrine is no longer applied in the modern world, in view of
the doctrine that the air is a public highway. The Court,
however, said that this principle is not applicable in the
present case. If the flights over respondents property
rendered it inhabitable, there would be a taking that must be
compensable. It is the owners loss, not the takers gain, which
is the measure of the value of the property taken. Market
value fairly determined is the normal measure of the recovery.
And that value may reflect the use to which the land could
readily be converted, as well as the existing use. If, by reason
of the frequency and altitude of flights, respondents could not
use this land for any purpose, their loss would be complete.

The fact that the planes never touched the surface is
irrelevant. The owners right to possess and exploit the land
his beneficial ownership of it would be destroyed. Although
airspace is a public highway, if the landowner is to have full
enjoyment of the land, he must have exclusive control of the
immediate reaches of the enveloping atmosphere. Otherwise,
buildings could not be erected, trees could not be planted, and
even fences could not be run. The landowner owns at least as
much of the space above the ground as he can occupy or use
in connection with the land. (US v Causby)
www
Defendant built a dam on his property and subsequently
flooded the properties of the plaintiffs.

The owner of lower lands cannot erect works that will impede
or prevent such an easement or charge, constituted and
imposed by the law upon his estate for the benefit of higher
lands belonging to different owners; neither can the latter do
anything to increase or extend the easement. It is true that the
Code authorizes every owner to enclose his estate by means
of walls, ditches, fences or other device, but this right is
limited by the easement imposed upon his estate. The owner
of the property is always under the strict and necessary
obligation to respect the statutory easement of the waters
charged upon his property. (Lunod v Meneses)

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Right of Accession

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Part 3. Right of Accession



Article 440. The ownership of property gives the right by
accession to everything which is produced thereby, or which is
incorporated or attached thereto, either naturally or
artificially.

A. Concept

Definition the right by virtue of which the owner of a thing
becomes the owner of everything that it may produce or
which may be inseparably united or incorporated thereto,
either naturally or artificially.

Accession is not a mode of acquiring ownership. It is merely a
consequence of the right of ownership. It presupposes a pre-
existing right of ownership.

Accession discreta is based on principles of justice. Accession
continua is based generally on principles of utility and
necessity.


B. General Principles of Accession

1. Applicable to both accession discreta an
accession continua

a. Accessory follows the principal

Article 445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon,
belong to the owner of the land, subject to the provisions of
the following articles.


Article 446. All works, sowing, and planting are presumed
made by the owner and at his expense, unless the contrary is
proved.

Arts. 445 and 446 lay down the general rule.

The land is the principal and whatever is built on it is the
accessory.

Basis is principle of justice. It is only just and fair that a thing
should also own whatever it produces, unless there is some
special reason for a contrary solution.

b.


No one shall be unjustly enriched at the
expense of another


Article 447. The owner of the land who makes thereon,
personally or through another, plantings, constructions or
works with the materials of another, shall pay their value; and,
if he acted in bad faith, he shall also be obliged to the
reparation of damages. The owner of the materials shall have
the right to remove them only in case he can do so without
injury to the work constructed, or without the plantings,

constructions or works being destroyed. However, if the


landowner acted in bad faith, the owner of the materials may
remove them in any event, with a right to be indemnified for
damages.


Article 455. If the materials, plants or seeds belong to a third
person who has not acted in bad faith, the owner of the land
shall answer subsidiarily for their value and only in the event
that the one who made use of them has no property with
which to pay.

This provision shall not apply if the owner makes use of the
right granted by article 450. If the owner of the materials,
plants or seeds has been paid by the builder, planter or sower,
the latter may demand from the landowner the value of the
materials and labor.

The landowner has the right to acquire what is built, planted
or sown with the corresponding obligation to pay the value of
the materials used (Art. 447).

If the materials belong to a 3rd person, the landowner shall
answer subsidiarily (primarily the BPS) unless he exercises his
option of removal (Art. 455)


2.

Applicable to accession continua


a.

Whatever is build, planted, or sown to the


land of another and the improvements or
repairs made thereon, belong to the
owner of the land, subject to the
provisions of the following articles (445).


The term building is a generic term for all architectural work
with roof, built as a dwelling, or for offices etc.

It is not necessary that the trees or plants have taken root, it is
enough that they are planted in order to belong to the
landowner.


b.

All works, sowing and planting are


presumed made by owner and at his
expense, unless contrary is proved.
(Article 446)


All works means the construction, improvement, or repair
of building and all analogous works.

Two disputable presumptions of Art. 446
1) Works were made by the owner
2) Works were made at the owners expense (Or if a 3rd
person does so, it is presumed that it was with the
owners consent)

One who alleges the contrary has the burden to prove his
allegations.

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Exception: Article 120 FC



FC Article 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the acts
or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse, subject
to the following rules:

When the cost of the improvement made by the
conjugal partnership and any resulting increase in
value are more than the value of the property at the
time of the improvement, the entire property of one
of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value
of the property of the owner-spouse at the time of
the improvement; otherwise, said property shall be
retained in ownership by the owner-spouse, likewise
subject to reimbursement of the cost of the
improvement.

In either case, the ownership of the entire property
shall be vested upon the reimbursement, which shall
be made at the time of the liquidation of the
conjugal partnership.


For the article to be applicable, the landowner should be
known.

c.

Accessory incorporated to principal such


that it cannot be separated without injury
to work constructed or destruction to
plantings, construction or works

The incorporation or union of the principal and accessory must


be intimate, such that removal therefrom would cause
substantial injury to wither or both.

d.

Bad faith involves liability for damages and


other dire consequences

e.

Bad faith of one party neutralizes bad faith


of the other Art. 453


Article 453. If there was bad faith, not only on the part of the
person who built, planted or sowed on the land of another,
but also on the part of the owner of such land, the rights of
one and the other shall be the same as though both had acted
in good faith.

It is understood that there is bad faith on the part of the
landowner whenever the act was done with his knowledge
and without opposition on his part.

You cannot apply the doctrine of in pari delicto here.

Where the parties are equally in bad faith, they shall both be
considered in good faith. Neither the landowner nor the BPS

may demand as a matter of right removal of improvements


against the will of the other because such right is applicable
only to a party in good faith and the others in bad faith. (Arts.
447, 449, 450, 453 and 455)


3.

Applicable to accession discreta alone


a.

Ownership of Fruits To owner of


principal thing belongs the natural,
industrial and civil fruits (Article 441)


Article 442
Natural fruits are the spontaneous products of the soil, and
the young and other products of animals.

Industrial fruits are those produced by lands of any kinds
through cultivation or labor.

Civil fruits are rents of buildings, the price of leases or land
and other property and the amount of perpetual life annuities
or other similar income.


Exceptions:
1)
2)
3)
4)

C.

Possession in good faith possessor is entitled to fruits


In Usufruct usufructuary is entitled to fruits
In Lease lessee is entitled to fruits
In Antichresis antichretic creditor is entitled to fruits


Obligations of Receiver of Fruits to pay expenses
by 3rd person in production, gathering and
preservation- Article 443


Article 443. He who receives the fruits has the obligation to
pay the expenses made by a third person in their production,
gathering, and preservation.


Article 443 applies where:
1) The owner of the property recovers the same from a
possessor and the possessor has not yet received the
fruits although they may have already gathered or
harvested; or
2) The possessor has already received the fruits but is
ordered to return the same to the owner.

The owner is obliged to reimburse the previous possessor for
the expenses incurred by the latter.

The expenses incurred by another inured to the benefit of the
owner who receives the fruits. Without such expenses, there
would have been no fruits.

The articles rationale is in keeping with the principle that no
man may unjustly enrich himself at the expense of another.

2 characteristics of expenses in order to be reimbursable:
1) Must be dedicated to the annual production, and not for
the improvement of the property;

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2)

Must not be unnecessary, excessive, or for pure luxury,


but must be reasonable.


Article 443 is the general rule while Article 449 is the
exception.


D. Kinds of Accession

1. Accession Discreta (Fruits) Article 440
a. Natural
b. Industrial
c. Civil

Cases:
Emil Bachrach died leaving his widow, herein petitioner with
all the fruits and the usufruct of the remainder of his estate
which includes 54,000 shares of stock dividends. The widow
petitioned the court to authorize the administrator of the
estate to transfer to her the said shares, claiming that the
dividend is fruit or income and thus belonged to her as
usufructuary or life tenant. The defendants opposed the
petition.

The Pennsylvania rule (all earnings of a corporation, when
declared as dividends in whatever form, made during the
lifetime of the usufructuary, belong to the latter) is more in
accord with our statutory laws.
A dividend, whether in the form of cash or stock, is income or
fruit and consequently should go to the usufructuary. Mary
Bachrach is the owner of the shares of stock in usufruct.
Dividend is declared only out of the profits of a corporation
and not out of his capital. (Bachrach v. Seifert)
www
Several sugar planters of Talisay-Silay mortgaged their lands in
order to secure the debts of Talisay-Silay against PNB. As
compensation for the planters risk, Talisay promised to give
them a bonus equal to 2% of the debt secured. Because of this
promise, Bachrach filed a complaint against Talisay asking for
Ledesmas bonus as payment of the latters debt against
Bachrach.

A bonus paid by the mortgage-debtor to another who had
mortgaged his land to secure the payment of the debtors
obligation to a bank is not a civil fruit of the mortgaged
property. Such bonus bears no immediate, but only a remote
and accidental relation to the land. It is not income delivered
from the property but a compensation granted for the risk
assumed by the owner of the property. (Bachrach v. Talisay
Silay)

2.

Accession Continua


OVER IMMOVABLES

a.
Artificial or Industrial Building, Planting,
Sowing (BPS)

i.

Owner is Builder, Planter, Sower (BPS)


using material of another Article 447


Article 447. The owner of the land who makes thereon,
personally or through another, plantings, constructions or
works with the materials of another, shall pay their value; and,
if he acted in bad faith, he shall also be obliged to the
reparation of damages. The owner of the materials shall have
the right to remove them only in case he can do so without
injury to the work constructed, or without the plantings,
constructions or works being destroyed. However, if the
landowner acted in bad faith, the owner of the materials may
remove them in any event, with a right to be indemnified for
damages.

The owner of materials used by another does not become a
part owner of the thing constructed but is ONLY entitled to
recover their value.

The owner of the land does not have the option to offer to
return the materials instead of paying their value.

BPS is in bad faith with respect to the materials if he knew that
he had no right to make use of such materials.

The owner of the materials would be in bad faith if such
materials were used by another in his presence, with his
knowledge and forbearance, and without opposition on his
part.

(a) In Good Faith



OM lies in ignorance of BPS acts
BPS/LO good faith lies in the belief that the materials belong
to him and is also not aware that there exists in his title or
mode of acquisition any flaw which invalidates it.

Note: His negligence may subject him to liability for damages.

(b) In Bad faith



OM allowing the use of the materials without protest

BPS/LO bad faith exists when there is knowledge of lack of
title and the absence of permission of the owner of the
material to pay their value.


ii.

BPS builds, plants or sows on


anothers land using his own materials
Article 448 454


Rationale where the BPS has acted in good faith, conflict of
rights arises between the owners, and it becomes necessary
to protect the owner of the improvements without causing
injustice to the owner of the land.

The law provides a solution by giving the landowner options
to acquire the improvements after payment of the proper
indemnity or to oblige the builder or planter to pay for the
land and the sower to pay the proper rent.

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The landowner cannot refuse to exercise either option.



It is the landowner who is authorized to exercise the option
because his right is older, and because, by the principle of
accession, he is entitled to the ownership of the accessory
thing.

To fall within the provisions of this article, the construction
must be of a permanent character. If it is of a transitory
character or is transferable, there is no accession. The builder
must remove the construction.


(a) BPS in Good Faith Article 448

Article 448. The owner of the land on which anything has been
built, sown or planted in good faith, shall have the right to
appropriate as his own the works, sowing or planting, after
payment of the indemnity provided for in articles 546 and 548,
or to oblige the one who built or planted to pay the price of
the land, and the one who sowed, the proper rent. However,
the builder or planter cannot be obliged to buy the land if its
value is considerably more than that of the building or trees. In
such case, he shall pay reasonable rent, if the owner of the
land does not choose to appropriate the building or trees after
proper indemnity. The parties shall agree upon the terms of
the lease and in case of disagreement, the court shall fix the
terms thereof.

This article applies only to a case where the BPS believes that
he has a claim of title to the land.

A possessor in good faith is one who has no knowledge of any
flaw or defect in his title or mode of acquisition.

Good faith is presumed under Article 527 and he who alleges
bad faith has the burden of proving the same.


(b) BPS in Bad Faith Article 449, 450,
451

Article 449. He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown without
right to indemnity.


Article 450. The owner of the land on which anything has been
built, planted or sown in bad faith may demand the demolition
of the work, or that the planting or sowing be removed, in
order to replace things in their former condition at the
expense of the person who built, planted or sowed; or he may
compel the builder or planter to pay the price of the land, and
the sower the proper rent.


Article 451. In the cases of the two preceding articles, the
landowner is entitled to damages from the builder, planter or
sower.

Options to Owner of Land:


1)

2)

To Acquire building, planting, and sowing

BPS has right to retention

Retains possession without paying rental

Not entitled to fruits; his rights are the same as


an antichretic creditor.
To sell to BP, to lease land S

BP may refuse if value of land considerable


more than BP; then forced lease by LO and BP

BPS in Bad Faith Article 449,450, 451


Rights of builder, planter, sower in bad faith - Article
452, 443:

Article 452. The builder, planter or sower in bad faith is
entitled to reimbursement for the necessary expenses of
preservation of the land.


Article 443. He who receives the fruits has the obligation to
pay the expenses made by a third person in their production,
gathering, and preservation.

Landowner in bad faith but BPS in good faith


Article 454, 447 reason for adverting to rule
447


iii. BPS builds, plants, sows on anothers
land with materials owned by 3rd
person Article 455

Article 455. If the materials, plants or seeds belong to a third
person who has not acted in bad faith, the owner of the land
shall answer subsidiarily for their value and only in the event
that the one who made use of them has no property with
which to pay.

This provision shall not apply if the owner makes use of the
right granted by article 450. If the owner of the materials,
plants or seeds has been paid by the builder, planter or sower,
the latter may demand from the landowner the value of the
materials and labor.

Nota Bene: Good faith does not exclude negligence Article
456

Cases:
Petitioner bought a parcel of land only to find out that
Bataclan has been authorized by former owners, as far back as
1922, to clear the land and make improvements thereon. The
lower court held Bataclan to be a possessor in good faith and
entitled to reimbursement with right of retention. Baticlan
was unable to pay so the land was sold to a public auction,
won by Teodoro.

When in the face of a conflict between the rights of an owner
and a builder, sower, planter in good faith, the owner
(Bernardo) opts to sell the land to the BPS (Bataclan) who is

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subsequently unable to pay, Bataclan loses his right of


retention.

A forced co-ownership occurs when the BPS has acted in good
faith. A conflict of rights arises and it becomes necessary to
protect the owner of the improvements without causing
injustice to the owner.

It is the owner of the land who is allowed to exercise the
option because his right is older and because by the principle
of accession, he is entitled to the ownership of the accessory
thing. (Bernardo v. Bataclan)
www
The lower court rendered judgment holding HIlario as the
legal owner of the property, but recognized Ignacio as the
owner of the improvements (houses and granaries) he built in
good faith. Hilario was given the option to either reimburse
Ignacio for the improvements or to sell the land to Ignacio. He
exercised neither option.

Since the option to remove or demolish improvement is given
to the landowner and it is limited to paying for the
improvement or selling his land to the BPS, he cannot refuse
to exercise his right of choice and compel the builder to
remove or demolish the improvement. He is entitled to such
removal only when after choosing to sell his land, the other
party fails to pay for the same. (Ignacio v. Hilario)
www
The spouses Valentino were told by the mother of the female
Valentino that they can construct a residential house on a lot
of 145 square meters. They did construct a house, only to find
out later that the lot did not belong to his mother-in-law but to
the spouses Santos who sold the same to Sarmiento.

Spouses Valentino cannot be ejected from the land
automatically because they were builders in good faith. The
owner of a building erected in good faith on a land owned by
another is entitled to retain possession of the land until he is
paid the value of the building. According to Article 448,
Sarmiento may either pay for the building or sell his land to the
Valentinos. Sarmiento cannot refuse both option and then
compel the owner of the building to remove it from the land.
He is entitled to such only when the Valentinos failed to pay.
(Sarmiento v. Agana)
www
Depra is the owner of a parcel of registered land, located in
the municipality of Dumangas, Iloilo. Sometime in 1972,
Dumlao constructed his house ; his kitchen thereof had
encroached on Depras property. Depras mother asked
Dumlao to move back from his encroachment and filed an
action for unlawful detainer. The lower court found Dumlao to
be a builder in good faith and ordered a forced lease.

The Municipal court overstepped its bounds when it ordered a
forced lease which is an interest in real property, the
jurisdiction of which belongs to the Court of First Instance.
Depra cannot refuse payment of the encroachment and at the
same time refused to sell the encroached part of his lot to
Dumlao.

He is entitled only such removal only after having chosen to


sell the encroached lot, Dumlao failed to pay.

The SC set the following guidelines for enforcement of rights
under Article 448 and 546.

1. TC must determine the fair price of the land,
expenses for improvement and increase in value of
land due to improvements.
2. TC must grant period where landowner must
exercise option; parties must pay in accord with the
option chosen; builder can refuse to offer to sell if
value of land is greater than the value of
improvements; and if the situation is that of the
third, the parties can agree upon the terms of the
lease. If there are no agreements, the TC must fix the
terms. (Depra v. Dumlao)
www
Technogas Phils. is the registered owner of a parcel of land
situated in Barrio San Dionisio, Paranaque, Manila. Edgardo Uy
is the owner of the land which adjoins plaintiffs land. Later, it
was found out that portions of the buildings and wall bought
by Technogas are occupying a portion of defendants
adjoining land. Upon learning of the encroachment,
Technogas ordered to buy from Uy that particular portion, but
Uy refused the offer.

Technogas did not lose its rights under Article 448 merely
because of the fact that some years after acquiring the
property in good faith, it learned about and aptly recognized
the right of Uy to a portion of the land occupied by the
building. The supervening awareness does not prejudice its
right to claim the status of a builder in good faith.

Uys options are limited to appropriating the encroaching
portion of Technogas building after payment of proper
indemnity or obliging the latter to buy the lot occupied by the
said structure.

Uys insistence on the removal of the encroaching structures
as the proper remedy is legally flawed. He will only be able to
avail of it if and when he chooses to compel the petitioner to
buy the land at a reasonable price but the latter fails to pay
such price. (Technogas Philippines v. CA)
www
The lot in controversy was formerly the subject of homestead
application one Martin Dolorico, plaintiffs ward who already
died. Since it was plaintiff who continued the cultivation and
possession of the property without however filing any
application to acquire title; Martin Dolorico I, the uncle of the
deceased, was named as his heir and successor in interest.
Thereafter, the uncle executed an affidavit relinquishing his
rights over the said property in favor of defendants Quirino
Comintan and Eleuterio Zamora.

All the fruits that the possessor may receive from the time that
he is summoned or when he answers the complaint must be
delivered or paid by him to the owner or lawful possessor.
Such is the time when his good faith has ceased. While he may
retain the property until he is reimbursed for necessary and

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useful expenses, all the fruits he receives from the moment his
good faith ceases must be deferred or paid by him to the
landowner. He may, however, secure the reimbursement of
his expenses by using the fruits to pay it off. (Ortiz v.
Kayanan)
www
It appears that Lot No. 3765-B-1 containing an area of 314
square meters was originally owned by the petitioners'
mother, Paulina Amado vda. de Geminiano. On a 12-square-
meter portion of that lot stood the petitioners' unfinished
bungalow, which the petitioners sold in November 1978 to the
private respondents for the sum of P6,000.00, with an alleged
promise to sell to the latter that portion of the lot occupied by
the house. Subsequently, the petitioners' mother executed a
contract of lease over a 126 square-meter portion of the lot,
including that portion on which the house stood, in favor of
the private respondents for P40.00 per month for a period of
seven years commencing on 15 November 1978. The private
respondents then introduced additional improvements and
registered the house in their names. On 9 February 1993, the
petitioners sent, via registered mail, a letter addressed to
private respondent Mary Nicolas demanding that she vacate
the premises and pay the rentals in arrears within twenty days
from notice. Upon failure of the private respondents to heed
the demand, the petitioners filed with the MTCC of Dagupan
City a complaint for unlawful detainer and damages.

The lessees were not builders in good faith and not entitled to
reimbursement of the value of the house and improvements.
The SC, holding that Articles 448 and 546 of the Civil Code,
which allow possessors in good faith to recover the value of
improvements and retain the premises until reimbursed, did
not apply to lessees like the private respondents, because the
latter knew that their occupation of the premises would
continue only during the life of the lease. Besides, the rights
of the private respondents were specifically governed by
Article 1678, which allows reimbursement of up to one-half of
the value of the useful improvements, or removal of the
improvements should the lessor refused to reimburse. It is
undisputed that the private respondents came into possession
of a 126 square-meter portion of the said lot by virtue of a
contract of lease executed by the petitioners' mother in their
favor. Being mere lessees, the private respondents knew that
their occupation of the premises would continue only for the
life of the lease. Plainly, they cannot be considered as
possessors nor builders in good faith. (Germiniano v. CA)
www
Facts: Edith Robillo purchased from petitioner a parcel of land
designated as Lot 9, Phase II and located at Taculing Road,
Pleasantville Subdivision, Bacolod City. In the year 1975,
respondent Jardinico bought the rights to the lot from Robillo
and upon completion of the payments, he secured TCT. He
then discovered that improvements had already been






introduced on Lot 9 by respondent Wilson Kee. It appears that


Kee bought on installment Lot 8. Unfortunately, the parcel of
land pointed by the employee was Lot 9.

The SC agrees with the CA that Kee is a builder in good faith.
The roots of the controversy can be traced in the errors
committed by the CTTEI when it pointed the wrong lot to Kee.
Good faith consists in the belief of the builder that the land he
is building on is his and he is ignorant of any defect or flaw in
his title. And as good faith is presumed, Pleasantville has the
burden of proving bad faith on the part of Kee. (Pleasantville
Devt. Corp. v. CA)
www
Plaintiff Felices was the grantee of a homestead of over 8
hectares located in Pili, Camarines Sur. A month after, he
conveyed in additional sale to defendant Iriola a portion of his
homestead of more than 4 hectares. Two years after, Felices
tried to recover the land but Iriola refused to allow it unless he
was paid P2,000 as the alleged value of improvements.

The rule of Article 453 of the CC invoked by Iriola cannot be
applied to the instant case for the reason that the
improvements in question were made on the premises only
after Felices had tried to recover the land in question from
him, and even during the pendency of this action in the court
below. Iriola, recognizing as he does Felices right to get back
his property, continued to act in bad faith when he made
improvements on the land in question after he had already
been asked extra-judicially and judicially, to surrender and
return its possession to appellee; and as a penalty for such bad
faith, he must forfeit his improvements without any right to
reimbursement therefor. (Felices v. Iriola)
www
Pedro Pecson owned a commercial lot located at Kamias
Road, Quezon City on which he built a 4-door, 2 storey
apartment building. He failed to pay realty taxes and the lot
was sold at a public auction. The spouses Nuguid were the
ones who bought it. Pecson challenged the validity of the
auction sale. The lower court upheld spouses Nuguids title
but declared that the apartment building was not included in
the auction.

While the law aims to concentrate in one person the
ownership of the land and the improvements thereon in view
of the impracticability of creating a state of forced co-
ownership, it guards against unjust enrichment insofar as the
good faith builders improvements are concerned.
The right of retention is one of the measures devised by law
for the protection of builders in good faith. A builder in good
faith cannot be compelled to pay rentals during the period of
retention nor be distributed in his possession by ordering him
to vacate. (Spouses Nuquid v. CA)

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Tables 1, 2 and 3. Outline Article 447-455

Case 1: Landowner is BPS using material of another


Landowner and BPS
Good faith
Right to acquire the improvements after paying the value of
materials.

Bad faith
Acquire BPS after paying its value and paying indemnity for
damages (Article 447) but subject to OMs right to remove

Owner of Material
Good faith

Limited right of removal if there would be no injury to work


constructed, or without plantings or constructions being
destroyed. (Article 447)

Right to receive payment for value of materials


Good faith

Right to receive payment for value of materials

Absolute right of removal of the work constructed in any


event

Right to be indemnified for damages


Bad faith

Lose materials without right to indemnity

Good faith
Right to acquire the improvements without paying indemnity
Right to acquire indemnity for damages if there are hidden
defects known to OM
Bad faith
Bad faith
Same as though acted in good faith under Article 453

Same as though acted in good faith under Article 453




Case 2: BPS builds, plants, or sows on anothers ;and using his own materials
Landowner
BPS and Owner of Material
Good faith
Good faith

Landowner has option to:

BPS has right to retain (right of retention) the land until the
a. Acquire the improvement after paying indemnity which
payment of indemnity
may be the original cost of improvement OR increase in
value of the whole brought about by the improvement
NOTE: During this period BPS is not required to pay rent.
b. Sell the land to the BP or collect rent from sower
UNLESS value of land is more than the thing built,
planted or sown or BP shall pay rent fixed by parties or
by the court in case of disagreement.

NOTE: Landowner can be forced to choose under pain of direct
contempt or court can choose for him.
Good faith
Bad faith

Landowner has right to collect damages in any case and

Pay damages to landowner


option to:

BPS lose materials without right to indemnity


a. Acquire improvements without paying indemnity if the

No right to refuse to buy the land


improvements are still standing on the land

Recover necessary expenses for preservation of land


b. Sell the land to BP or collect rent from the sower unless
value of the improvements in which case there will be a
forced lease
c. Order demolition of improvements or restoration o0f
land to its former condition at the expense of the BPS

Landowner must pay for necessary expenses for


preservation
Bad faith
Good faith

Landowner must indemnify BPS for the improvements and

BPS has right to :


pay damages as if he himself did the BPS
a. Be indemnified for damages
b. Remove all improvements in any event

Landowner has no option to sell the land and cannot compel


BPS to buy the land unless BPS agrees to
Bad faith
Bad faith

Same as though acted in bad faith under Article 453

Same as though acted in bad faith under Article 453




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Case 3: BPS builds, plants or sows on anothers land with materials owned by third persons
Landowner
BPS
Owner of Material
Good faith
Good faith
Good faith

Right to acquire improvements and

Right of retention until necessary and


Collect value of material primarily
pay indemnity to BPS; subsdiarily
useful expenses are paid
from BPS and subsidiarily liable for
liable to OM
landowner if BPS is insolvent

Pay value of materials to OM

Has option to:

Limited right of removal


a. Sell land to BP except if the value
of the land is considerably more
b. Rent to sower
Good faith
Good faith
Bad faith

Right to acquire improvements and

Right of retention until necessary and


Lose the material without right to
pay indemnity to BPS
useful expenses are paid.
indemnity

Has option to:

Keep BPS without indemnity to OM

Must pay for damages to BPS


a. Sell land to BP except if the value
and collect damages from him
of the land is considerably more
b. Rent to sower

Without subsidiarily liability for cost of


materials
Good faith
Bad faith
Bad faith

Landowner has right to collect

Recover necessary expenses for

Recover value from BPS (as if both


damages in any case and option to:
preservation of land from landowner
are in good faith)
a. Acquire improvements w/o
unless landowner sells land

If BPS acquires improvement, remove


paying for indemnity; or
materials if feasible w/o injury
b. Demolition or restoration; or

No action against landowner but


c. Sell to BP, or to rent to sower
liable to landowner for damages

Pay necessary expenses to BPS


Bad faith
Bad faith
Bad faith

Same as when all acted in good faith

Same as when all acted in good faith

Same as when all acted in good faith


under Article 453
under Article 453
under Article 453
Bad faith
Good faith
Good faith

Acquire improvement after paying

May remove improvements

Remove materials if possible w/o


indemnity and damages to BPS unless
injury
Be indemnified for damages in any
latter decides to remove
event

Collect value of materials from BPS;

Subsidiarily liable to OM for value of


subsidiarily from landowner
materials
Bad faith
Bad faith
Good faith

Acquire improvements after

Right of retention until necessary

Collect value of materials primarily


indemnity; subsidiarily liable to OM
expenses are paid
from BPS and subsidiarily from
for value of materials
landowner

Pay value of materials to OM and pay

Has option to:


him damages

Collect damages from BPS


a. Sell the land to BP except if the

If BPS acquires improvements,


value of the land is considerably
remove materials in any event
more
b. Rent to sower
Good faith
Bad faith
Good faith

Acquire imrovement after paying

Right of retention until necessary

Collect value of materials primarily


indemnity; subsidiarily liable to OM
expenses are paid
from BPS and subsidiarily from
landowner

Landowner has option to:

Pay value of materials to OM


a. Sell land to BP except if value of

Collect damages from BPS

Pay damages to OM
land is considerably more

If BPS acquires improvements,


b. Rent to sower
absolute right of removal in any event
Bad faith
Good faith
Bad faith

Acquire improvements and pay

Receive indemnity for damages

No right to indemnity
indemnity and damages to BPS unless
Absolute right of removal of

Loses right to mnaterial


latter decides to remove materials
improvements in any event



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b.

Natural

1)


i. Alluvium Article 457

Article 457. To the owners of lands adjoining the banks of
rivers belong the accretion which they gradually receive from
the effects of the current of the waters.

Alluvium it is the soil imperceptibly and gradually deposited
on the lands adjoining the banks of rivers caused by the
current of the water.

Accretion it is the process whereby the soil is so deposited.

Riparian owner owner of the land fronting such riverbanks



This accretion is known as alluvion. If land bordering on
streams are exposed to floods and other damages due to the
destructive force of the waters, and if by virtue of law they are
subject to encumbrances and various kinds of servitudes, it is
only just that such risks or dangers as may prejudice the
owners thereof should in some way be compensated by right
of accretion.

Alluvion is said to have taken place already when the deposit
of sediment has reached a level higher that the highest level of
the water during the year. If the alluvion is formed suddenly,
or when it is formed beneath the surface of the water and
then it suddenly appears, there are some who believe that it
should be considered as alluvion, because all the reasons
applicable to alluvion exist in such case.

Essential elements of alluvium:
1) That the deposit of soil or sediment be gradual and
imperceptible;
2) That it be the result of an action of the waters of the river
(or sea);
3) That the land where accretion takes place is adjacent to
the banks of river (or the sea coast)

Reasons why soil deposited (alluvio) is granted to owners of
lands adjoining the banks of rivers:

2)

To offset his loss for possible erosion of his estate due to


the current of the river;
To compensate for his sufferings or burdens arising from
the subjection of his land to encumbrances and legal
easements.


The current causing the alluvial deposit must be from a river. If
it is from the sea, the deposit will pertain to the State.

The requirement that the deposit should be due to the effect
of the current of the water, excludes from this article all
deposits caused by works expressly for that purpose. Alluvion
must be the exclusive work of nature; hence, the owner of a
tenement does not acquire the additions to his land cause by
special works intended to bring about accretion because this
would not be gradual accumulation from the current of the
water.

The registration of the riparian land under the prevailing land
registration law does not protect the riparian owner against
the diminution of the area of his land through gradual changes
in the course of the adjoining stream.

Alluvial property granted to the riparian owner, although
automatically owned does not ipso facto automatically
become a registered property. It may be lost to third persons
by prescription if the riparian owner does not apply for its
registration under the Land Registration Law.

Cases:
Respondents are registered owners of a parcel of land
covered by a TCT situated at Meycauayan, Bulacan. They filed
an application for the registration of 3 lots adjacent to their
fishpond property but was opposed by the assistant provincial
fiscal. Lot 3 was ordered withdrawn from the application and
trial proceeded only with Lots 1 and 2.

There is no accretion to speak of. Before an accretion takes
place, 3 requisites must occur: deposit be gradual and
imperceptible; it be made through the effects of a river
current; and the land where accretion takes place is adjacent
to the banks of rivers.

For accretion or alluvion to form part of registered land of
riparian owner, the gradual alluvial deposits must be due to
the effects of the rivers current. Deposits made by human
intervention are excluded. A riparian owner cannot register
accretions to his land arising from special works or man-made
dikes constructed for reclamation purposes. (Republic v. CA)
www
Petitioners are the owners of a parcel of land located at
Magsaysay, Isabela by inheritance from their deceased
mother. When it was surveyed for purposes of registration
sometime in 1930, its northeast boundary was the Cagayan
River. Since then and for many years thereafter, a gradual
accretion on the northeast side took place, by action of the
rivers current. By 1958, the bank thereof had receded to a
distance of about 105 meters from its original site and an
alluvial deposit had been added to the registered area.

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Alluvial deposits on registered land An accretion does not
automatically become registered land, just because the land
which receives the accretion is covered by a Torrens title.
Ownership of a piece of land is one thing; registration under
the Torrens system of that ownership is another. Ownership
over the accretion received by the land adjoining a river is
governed by the Civil Code. Imprescriptibility of the registered
land is provided by the registration law. (Grande v. CA)
www
Pablito Menseses acquired a 417 sq.m. and 515 sq. m.
properties in Los Banos, Laguna, in consideration of Bautistas
love and affection and some monetary obligation in favor
of Meneses. However, the same property was claimed by the
Quisumbing family and traces their ownership since 1919. The
heirs applied for registration and confirmation of title over an
additional area of 2,387 sq.m. which had gradually accrued to
their property by natural action of the waters of Laguna de
Bay.

The requisites of accretion are present. They are:
1. The deposition of soil or sediment be gradual and
imperceptible;
2. The result of the action of the river or sea; and
3. The land where the accretion takes place is adjacent
to the banks of river.

The lands are then accretion lands and could only redound to
the benefit of the Quisumbings who own the property
adjacent to the land in controversy. (Meneses v. CA)


Article 458. The owners of estates adjoining ponds or lagoons
do not acquire the land left dry by the natural decrease of the
waters, or lose that inundated by them in extraordinary
floods.

Pond a body of stagnant water without any outlet. It is a
small body of still water artificially formed by hallowing or
embarking it refers also to a small lake.

Lagoon a small lake but not very deep, the hollow of which is
bounded by the elevation of the land.

Article 458 does not apply to lakes. A lake is a body of water
formed in depressions of the earth, ordinarily of fresh water.

Foreshore land when the sea moves towards the estate and
the tide invades it, the invade property becomes foreshore
land and passes to the realm of public domain.

ii. Avulsion

Article 459. Whenever the current of a river, creek or torrent
segregates from an estate on its bank a known portion of land
and transfers it to another estate, the owner of the land to
which the segregated portion belonged retains the ownership
of it, provided that he removes the same within two years.

Avulsion it is the process whereby a portion of the land is


segregated from an estate by the forceful current of a river,
creek or torrent and transferred to another estate.

River natural stream of water, of greater volume than a
creek or rivulet flowing, in a more or less permanent bed or
channel, between defined banks or walls, with a current which
may be either continuous in one direction or affected by the
ebb and flow of the tide.

Elements of a river: water, bed and banks

Creek a recess or arm extending from a river, which
precipitates in the ebb and flow of the sea. A creek is a small
stream, less than a river, and is not a separate or independent
stream.

Torrent a stream of water flowing with great rapidity and
violence

The transfer of a known portion of land from one tenement to
another by force of the current is known as avulsion. The
portion of the land must be such that it can be identified as
coming from a definite tenement. If such identification is not
possible, no right to remove the same can be recognized in
anyone.

Even if the portion of the land that has been transferred is a
compact mass, if the tenement from which it came cannot be
determined, there is no avulsion, and the present article does
not apply. And when the transfer does not involve a compact
mass, but only the soil from upper tenements have been
removed by the water, and such soil is deposited on lower
tenements, there is no known portion of land that can be
removed under the provisions of this article.

If the sediment of land taken from a riparian land is not a
known mass that can be identified, but the area of the land is
reduced through gradual erosion due to changes in the course
of adjoining stream, there is no avulsion and the owner is not
protected.

A portion of land may be transferred from one tenement to
another by other forces of nature than the current of a river,
such as when land from a mountain slope rolls down to
another tenement by reason of an earthquake. In the absence
of an express provision on the matter, the present article can
be applied by analogy.

If the owner of the known portion of land removes it within
two years, he retains the ownership thereof. The law does not
expressly state the effect of his failure to remove such land
within the period provided.

The principle of accession, recognized by this article as
operating after the period of two years, must apply whether
the failure to remove be voluntary or involuntary, and
irrespective of the area of the known portion that has been
transferred

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The unavoidable mixture of sediment at the point of contact
between the portion of land and the surface of the tenement
on which it was deposited is not sufficient to remove it from
the operation of the present article. However, if by some force
of nature, such as rain, the known portion is broken or loosen
into soil which mixes with that of the tenement on which it is
deposited, then there is no known portion which can be
removed. By general rule of accession, the owner of the
tenement with which the soil is merged becomes the owner of
such soil.

When the known portion taken by the current of the waters
from one tenement is left in the middle of a stream, not united
to any other tenement, the owner preserves his right of
ownership over said portion.

Requisites of avulsion:
1) The segregation and transfer is caused by current of
water;
2) The segregations and transfer must be sudden or abrupt;
3) The portion of land transported must be known and
identifiable.

Alluvium v. Avulsion
Alluvium
Avulsion
The process is sudden and
abrupt, causing the
The process of soil deposit on
segregation of a portion of
the land of the riparian owner
land from one estate and
is gradual and imperceptible.
transferring it to another
estate.
The soil deposit is not
The property detached is
identifiable.
known or identifiable.
The ownership of the
The alluvio belongs to the
detached property is retained
owner of the land to which
by the owner, subject to the
the soil had been deposited.
removal thereof within 2
years from the detachment.
The ownership of the
detached property is not
The ownership granted to the
automatically vested in the
riparian owner is automatic.
owner of the tenement to
which it was attached.

Case:
The property is foreshore land, hence part of public domain.
The property is an accretion of land on a sea bank. Manila Bay
being an inlet or arm of the sea; as such, the disputed property
is public domain.

The alluvium, by mandate of Article 457, is automatically
owned by the riparian owner from the moment the soil
deposit can be seen but is not automatically registered
property, hence, subject to acquisition through prescription of
30 years by 3rd persons. (Navarro v. IAC)

Article 460. Trees uprooted and carried away by the current of
the waters belong to the owner of the land upon which they
may be cast, if the owners do not claim them within six

months. If such owners claim them, they shall pay the


expenses incurred in gathering them or putting them in a safe
place.

iii. Change of course of River Article


461-463

Article 461. River beds which are abandoned through the
natural change in the course of the waters ipso facto belong
to the owners whose lands are occupied by the new course in
proportion to the area lost. However, the owners of the lands
adjoining the old bed shall have the right to acquire the same
by paying the value thereof, which value shall not exceed the
value of the area occupied by the new bed.


Article 462. Whenever a river, changing its course by natural
causes, opens a new bed through a private estate, this bed
shall become of public dominion.


Article 463. Whenever the current of a river divides itself into
branches, leaving a piece of land or part thereof isolated, the
owner of the land retains his ownership. He also retains it if a
portion of land is separated from the estate by the current.

If due to forces of nature (like floods, earthquakes, volcanic
eruptions, etc.) a river changed its usual course and occupied
the land of another creating therein a new riverbed and
leaving the old bed to dry, the owner of the invaded land
becomes the owner of the old bed in proportion to the area
he lost. However, the government has the right and power to
revert back the course of the new river to its original location.
When the Government takes steps to return the river to its old
bed, there is no abandonment of the riverbed.

Requisites for the application of Article 461:
1) There must be a change in the natural course of the
waters of the river;
2) The change must be abrupt or sudden.

The Article will not apply if the river has branched out and
created new courses without however abandoning the
original riverbed.

When a river or stream suddenly changes its course and in the
process had traversed private lands, the owners of the
affected lands may not compel the government to restore the
river to its former bed.

Dried-up river if the river just dried up for lack of flowing
waters, Article 461 will not apply because there are no owners
who were deprived of the lands by the change of river course.
The dried up riverbed pertains to the State.

Rationale behind the Article to compensate for the loss of
the land occupied by the new bed. It is more equitable to
compensate the actual losers than to add land to those who
have lost nothing.

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New riverbeds the new riverbed becomes a property of
public dominion.

Right of the owner of land occupied by new river course:
1) Right to old bed ipso facto in proportion to the area lost;
2) Owner of adjoining land to old bed still have right to
acquire the same by paying its value value not to exceed
the value of the area occupied by the new bed
3) Formation of island in non-navigable river
a) Owner of margin nearest to islands formed if island
formed is near one side
b) Owner of both margins if island is in the middle
(divided into halves, longitudinally_

Art. 461
Where as a result of a flood a certain public stream changes its
course, leaving a portion of its old bed dry, but as soon
thereafter as practicable steps were taken under the direction
of the government to bring back the stream in its former
course and work was undertaken for this purpose, it was held
that there was no abandonment of the old bed, that the public
was not divested of its ownership over it, and that the stream
might be properly brought back to its former course, over the
opposition of the riparian owners.

It is sufficient that there be some reasonable indication on the
ground of the abandoned bed, and that there be sufficient
evidence showing that the river changes its course not
gradually or imperceptibility by abruptly and sudden.

If the change in the course is due to works constructed by
concessionaires authorized by government, the concession
may grant the abandoned river bed to the concessionaires. If
there is no such grant, then, by analogy, the abandoned river
bed will belong to the owners of the land covered by the
waters, as provided by this article, without prejudice to a
superior right of third person with sufficient title.

Art. 462

The natural bed of a river is the ground covered by its waters
during ordinary floods. Since all beds of rivers are of public
ownership, the banks, which for part thereof, are also of
public ownership.

Art. 463

This article refers to all rivers, whether navigable and floatable
or not. The owner does not lose his ownership simply because
of an inundation which has converted this land into an island.

Cases:
The government dug a canal on a private land to streamline
the Tripa de Gallina creek. This lot was later acquired by Baes
who named it in his name and subdivided it into 3 lots. New
TCTs were issued but the Republic discovered that one of the
lots, on which Baes erected an apartment building, covered a
lot of Psay cadastre which is a filled-up portion of the Tripa de
Gallina creek.

Baes contention is impressed with merit. The law speaks of


the natural change in the course of the stream, and of the
riparian owner is entitled to compensation for damage to or
loss of property due to natural causes, theres all the more
reason to compensate him when the change in the course of
the river, as in this case, is effected through artificial means.
But since he has been given an equivalent lot, he is no longer
entitled under the principle of unjust enrichment. (Baes v. CA)
www
The elongated strip of land formed by the western and
eastern branches of the Cagayan River looked very much like
an island. This strip of land was surveyed and was designated
as Lot 821 and 822. Respondent Manalo claims that Lot 821
also belong to him by way of accretion to the submerged
portion of the property to which it is adjacent. Petitioners in
possession of Lot 821 insist that they own Lot 821. They occupy
the outer edges of Lot 821 along the river banks. They also
cultivate the western strip of the unsurveyed portion during
summer.

Respondents do not own Lot 821. Article 70 defines the
natural bed channel of a creek or river as the ground covered
by its waters during the highest floods. The highest floods in
the eastern branch of the river occur with the annual coming
of the rains as the river waters in their onward course cover
the entire depressed portion. Respondent Manalo cannot
acquire private ownership of the bed of the eastern branch of
the river even if it was included in the deeds of absolute sale
executed by Gregorio Taguba and Faustina Taccad in his favor.
These vendors could not have validly sold land that
constituted property of public dominion. (BInalay v. Manalo)

iv. Formation of Islands Article 461-465


See PD No. 1067, Water Code


Article 464. Islands which may be formed on the seas within
the jurisdiction of the Philippines, on lakes, and on navigable
or floatable rivers belong to the State.


Article 465. Islands which through successive accumulation of
alluvial deposits are formed in non-navigable and non-
floatable rivers, belong to the owners of the margins or banks
nearest to each of them, or to the owners of both margins if
the island is in the middle of the river, in which case it shall be
divided longitudinally in halves. If a single island thus formed
be more distant from one margin than from the other, the
owner of the nearer margin shall be the sole owner thereof.

Art. 461

Once the river bed has been abandoned, the owners of the
invaded land become owners of the abandoned bed to the
extent provided by this article. There need be no act on their
part to subject the accession to their ownership, as it is subject
thereto ispo jure from the moment the mode of acquisition
becomes evident.

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If the river bed runs dry, the river bed will continue to remain
property of public dominion, in the absence of any provision
vesting the ownership of the dried up river bed in some other
person.

Art. 462

The natural bed of a river is the ground covered by its waters
during ordinary floods. Since all beds of rivers are of public
ownership, the banks, which for part thereof, are also of
public ownership.

Art. 463

This article refers to all rivers, whether navigable and floatable
or not. The owner does not lose his ownership simply because
of an inundation which has converted this land into an island.

Art. 464

Laurent and Ricci, commenting on the French and Italian
codes, say that these islands form part of the patrimonial
property of the State, which may sell them. Our Civil Code has
no express provision on this point, and the solution offered by
the two commentators has been considered applicable under
our Code.

Art. 465

This article refers to islands formed gradually by successive
accumulations of deposits by the waters of the river, in the
same manner as alluvion. It does not include those which are
formed by the branching of a river, of those which are known
portions of land from a tenement and deposited in the middle
of the stream, in which cases their former owners preserve
their ownership. It includes, however, new isles or islets
formed between an existing island and the opposite river
bank, in which case the owner of the owner of the older island
is just considered as a riparian owner for the purpose of
determining the ownership of the new isle and islet.

Islands formed on Philippine seas, on lakes and on nabigable
or floatable rivers belong to the State.

Navigable or floatable river it is a river which in its natural
condition is capable of affording a channel or passage for
ships and vessels engaged in commerce and as such must not
be sufficient to float bancas or light boats but also bigger
watercrafts. It must be deep enough to allow the
unobstructed movements of ships and vessels.

Test: A river is navigable id it is used or susceptible of
being used, in its ordinary condition, as a highway of
commerce, that is, for trade and travel in the usual
and ordinary modes.

Article 465 covers islands formed by successive accumulation
of alluvial deposits. The formation must be in non-navigable
rivers; otherwise, Article 464 shall apply.

The islands referred to in Article 465 shall pertain and belong


to the owners of the margins or banks of the river nearest
each of them. If the island happens to be striding in the middle
of the river, it shall be divided longitudinally in halves both
owners of the opposite banks of the rivers will have a share on
the islands formed. If the island is more distant from one bank
compared to the opposite bank, the owner of the bank nearer
the island shall be the sole owner thereof.

PD 1067. The Water Code of the Philippines

CHAPTER I
DECLARATION OF OBJECTIVES AND PRINCIPLES

Article 1. This Code shall be known as The Water Code of the
Philippines.

Article 2. The objectives of this Code are:

(a) To establish the basic principles and framework relating to
the appropriation, control and conservation of water
resources to achieve the optimum development and rational
utilization of these resources;

(b) To define the extent of the rights and obligations of water
users and owners including the protection and regulation of
such rights;

(c) To adopt a basic law governing the ownership,
appropriation, utilization, exploitation, development,
conservation and protection of water resources and rights to
land related thereto; and

(d) To identify the administrative agencies which will enforce
this Code.

Article 3. The underlying principles of this code are:

(a) All waters belong to the State.

(b) All waters that belong to the State can not be the subject
to acquisitive prescription.

(c) The State may allow the use or development of waters by
administrative concession.

(d) The utilization, exploitation, development, conservation
and protection of water resources shall be subject to the
control and regulation of the government through the
National Water Resources Council, hereinafter referred to as
the Council.

(e) Preference in the use and development of waters shall
consider current usages and be responsive to the changing
needs of the country.

Article 4. Waters, as used in this Code, refers to water under
the grounds, water above the ground, water in the
atmosphere and the waters of the sea within the territorial
jurisdiction of the Philippines.

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CHAPTER II
OWNERSHIP OF WATERS

Article 5. The following belong to the State:

(a) Rivers and their natural beds;

(b) Continuous or intermittent waters of springs and brooks
running in their natural beds and the beds themselves;

(c) Natural lakes and lagoons;

(d) All other categories of surface waters such as water
flowing over lands, water from rainfall whether natural, or
artificial, and water from agriculture runoff, seepage and
drainage;

(e) Atmospheric water;

(f) Subterranean or ground waters; and,

(g) Seawater.

Article 6. The following waters found on private lands belong
to the State:

(a) Continuous or intermittent waters rising on such lands;

(b) Lakes and lagoons naturally occuring on such lands;

(c) Rain water falling on such lands;

(d) Subterranean or ground waters; and,

(e) Water in swamps and marshes.

The owner of the land where the water is found may use the
same for domestic purposes without securing a permit,
provided that such use shall be registered, when required by
the Council. The Council, however, may regulate such when
there is wastage, or in times of emergency.

Article 7. Subject to the provisions of this Code, any person
who captures or collects water by means of cisterns, tanks, or
pools shall have exclusive control over such water and the
right to dispose of the same.

Article 8. Water legally appropriated shall be subject to the
control of the appropriator from the moment it reaches the
appropriator's canal or aqueduct leading to the place where
the water will be used or stored and, thereafter, so long as it is
being beneficially used for the purposes for which it was
appropriated.

CHAPTER III
APPROPRIATION OF WATERS

Article 9. Waters may be appropriated and used in accordance
with the provisions of this Code.

Appropriation of water, as used in this Code, is the acquisition


of rights over the use of waters or the taking or diverting of
waters from a natural source in the manner and for any
purpose allowed by law.

Article 10. Water may be appropriated for the following
purposes:

(a) Domestic

(b) Municipal

(c) Irrigation

(d) Power generation

(e) Fisheries

(f) Livestock raising

(g) Industrial

(h) Recreational, and

(i) Other purposes

Use of water for domestic purposes is the utilization of water
for drinking, washing, bathing, cooking or other household
needs, home gardens, and watering of lawns or domestic
animals.

Use of water for municipal purposes is the utilization of water
for supplying the water requirements of the community.

Use of water for irrigation is the utilization of water for
producing agricultural crops.

Use of water for power generation is the utilization of water
for producing electrical or mechanical power.

Use of water for fisheries is the utilization of water for the
propagation and culture of fish as a commercial enterprise.

Use of water for livestock raising is the utilization of water for
large herds or flocks of animals raised as a commercial
enterprise.

Use of water for industrial purposes is the utilization of water
in factories, industrial plants and mines, including the use of
water as an ingredient of a finished product.

Use of water for recreational purposes is the utilization of
water for swimming pools, bath houses, boating, water skiing,
golf courses and other similar facilities in resorts and other
places of recreation.

Article 11. The State, for reasons of public policy, may declare
waters not previously appropriated, in whole or in part,
exempt from appropriation for any or all purposes and,
thereupon, such waters may not be appropriated for those

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purposes.

Article 12. Waters appropriated for a particular purpose may
be applied for another purpose only upon prior approval of
the Council and on condition that the new use does not unduly
prejudice the rights of other permittees, or require an increase
in the volume of water.

Article 13. Except as otherwise herein provided, no person,
including government instrumentalities or government-owned
or controlled corporations, shall appropriate water without a
water right, which shall be evidenced by a document known as
a water permit.

Water right is the privilege granted by the government to
appropriate and use water.

Article 14. Subject to the provisions of this Code concerning
the control, protection, conservation, and regulation of the
appropriation and use of waters, any person may appropriate
or use natural bodies of water without securing a water
permit for any of the following:

(a) Appropriation of water by means of handcarried
receptacles; and

(b) Bathing or washing, watering or dipping of domestic or
farm animals, and navigation of watercrafts or transportation
of logs and other objects by flotation.

Article 15. Only citizens of the Philippines, of legal age, as well
as juridical persons, who are duly qualified by law to exploit
and develop water resources, may apply for water permits.

Article 16. Any person who desires to obtain a water permit
shall file an application with the Council who shall make
known said application to the public for any protests.

In determining whether to grant or deny an application, the
Council shall consider the following: protests filed, if any; prior
permits granted; the availability of water; the water supply
needed for beneficial use; possible adverse effects; land-use
economics; and other relevant factors.

Upon approval of an application, a water permit shall be
issued and recorded.

Article 17. The right to the use of water is deemed acquired as
of the date of filing of the application for a water permit in
case of approved permits, or as of the date of actual use in a
case where no permit is required.

Article 18. All water permits granted shall be subject to
conditions of beneficial use, adequate standards of design and
construction, and such other terms and conditions as may be
imposed by the Council.

Such permits shall specify the maximum amount of water
which may be diverted or withdrawn, the maximum rate of
diversion or withdrawal, the time or times during the year

when water may be diverted or withdrawn, the points or


points of diversion or location of wells, the place of use, the
purposes of which water may be used and such other
requirements the Council deems desirable.

Article 19. Water rights may be leaded or transferred in whole
or in part to another person with prior approval of the Council,
after due notice and hearing.

Article 20. The measure and limit of appropriation of water
shall be beneficial use.

Beneficial use of water is the utilization of water in the right
amount during the period that the water is needed for
producing the benefits for which the water is appropriated.

Article 21. Standards of beneficial use shall be prescribed by
the council for the appropriator of water for different
purposes and conditions, and the use of waters which are
appropriated shall be measured and controlled in accordance
therewith.

Excepting for domestic use, every appropriator of water shall
maintain water control and measuring devices, and keep
records of water withdrawal. When required by the Council, all
appropriators of water shall furnish information on water use.

Article 22. Between two or more appropriators of water from
the same sources of supply, priority in time of appropriation
shall give the better right, except that in times of emergency
the use of water for domestic and municipal purposes shall
have a better right over all other uses; Provided, the where
water shortage is recurrent and the appropriator for municipal
use has a lower priority in time of appropriation, then it shall
be his duty to find an alternative source of supply in
accordance with conditions prescribed by the Council.

Article 23. Priorities may be altered on grounds of greater
beneficial use, multi-purpose use, and other similar grounds
after due notice and hearing, subject to payment of
compensation is proper cases.

Article 24. A water right shall be exercised in such a manner
that the rights of third persons or of other appropriators are
not prejudiced thereby.

Article 25. A holder of water permit may demand the
establishment of easements necessary for the construction
and maintenance of the works and facilities needed for the
beneficial use of the waters to be appropriated subject to the
requirements of just compensation and to the following
conditions:

(a) That he is the owner, lessee, mortgagee or one having real
right over the land upon which he proposes to use water; and

(b) That the proposed easement is the most convenient and
the least onerous to the servient estate.

Easements relating to the appropriation and use of waters

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may be modified by agreement of the contracting parties
provided the same is not contrary to law or prejudicial to third
persons.

Article 26. Where water shortage is recurrent, the use of the
water pursuant to a permit may, in the interest of equitable
distribution of the benefits among legal appropriators, reduce
after due notice and hearing.

Article 27. Water users shall bear the diminution of any water
supply due to natural causes or force majeure.

Article 28. Water permits shall continue to be valid as long as
water is beneficially used; however, it maybe suspended on
the grounds of non-compliance with approved plans and
specifications or schedules of water distribution; use of water
for a purpose other than that for which it was granted; non-
payment of water charges; wastage; failure to keep records of
water diversion, when required; and violation of any term or
condition of any permit or rules and regulations promulgated
by the Council.

Temporary permits may be issued for the appropriation and
use of water for short periods under special circumstances.

Article 29. Water permits may be revoked after due notice and
hearing on grounds of non-use; gross violation of the
conditions imposed in the permit; unauthorized sale of water;
willful failure or refusal to comply with rules and regulations of
any lawful order; pollution, public nuisance or acts detrimental
to public health and safety; when the appropriator is found to
be disqualified under the law to exploit and develop natural
resources of the Philippines; when, in the case, of irrigation,
the land is converted to non-agricultural purposes; and other
similar grounds.

Article 30. All water permits are subject to modification or
cancellation by the council, after due notice and hearing, in
favor of a project of greater beneficial use or for multi-purpose
development, and a water permittee who suffers thereby shall
be duly compensated by the entity or person in whose favor
the cancellation was made.

CHAPTER IV
UTILIZATION OF WATERS

Article 31. Preference in the development of water resources
shall consider security of the State, multiple use, beneficial
effects, adverse effects and costs of development.

Article 32. The utilization of subterranean or ground water
shall be coordinated with that of surface waters such as rivers,
streams, springs and lakes, so that a superior right in one not
adversely affected by an inferior right in the other.

For this purpose the Council shall promulgate rules and
regulations and declare the existence of control areas for the
coordinated development, protection, and utilization of
subterranean or ground water and surface waters.

Control area is an area of land where subterranean or ground


water and surface water are so interrelated that withdrawal
and use in one similarly affects the other. The boundary of a
control area may be altered from time to time, as
circumstances warrant.

Article 33. Water contained in open canals, aqueducts or
reservoirs of private persons may be used by any person for
domestic purpose or for watering plants as long as the water
is withdrawn by manual methods without checking the stream
or damaging the canal, aqueduct or reservoir; Provided, That
this right may be restricted by the owner should it result in
loss or injury to him.

Article 34. A water permittee or appropriator may use any
watercourse to convey water to another point in the
watercourse for the purpose stated in a permit and such water
may be diverted or recaptured at that point by said permittee
in the same amount less allowance for normal losses in transit.

Article 35. Works for the storage, diversion, distribution and
utilization of water resources shall contain adequate provision
for the prevention and control of diseases that may be
induced or spread by such works when required by the
Council.

Article 36. When the reuse of waste water is feasible, it shall
be limited as much as possible, to such uses other than direct
human consumption. No person or agency shall distribute
such water for public consumption until it is demonstrated
that such consumption will not adversely affect the health and
safety of the public.

Article 37. In the construction and operation of hydraulic
works, due consideration shall be given to the preservation of
scenic places and historical relics and, in addition to the
provisions of existing laws, no works that would required the
destruction or removal of such places or relics shall be
undertaken without showing that the distribution or removal
is necessary and unaviodable.

Article 38. Authority for the construction of dams, bridges and
other structures across of which may interfere with the flow
of navigable or flotable waterways shall first be secured from
the Department of Public Works, Transportation and
Communications.

Article 39. Except in cases of emergency to save life or
property, the construction or repair of the following works
shall be undertaken only after the plans and specifications
therefor, as may be required by the Council, are approved by
the proper government agency; dams for the diversion or
storage of water; structures for the use of water power,
installations for the utilization of subterranean or ground
water and other structures for utilization of water resources.

Article 40. No excavation for the purpose of emission of a hot
spring or for the enlargement of the existing opening thereof
shall be made without prior permit.

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Any person or agency who intends to develop a hot spring for
human consumption must first obtain a permit from the
Department of Health.

Article 41. No person shall develop a stream, lake, or spring for
recreational purposes without first securing a permit from the
Council.

Article 42. Unless-otherwise ordered by the President of the
Philippines and only in time of national calamity or emergency,
no person shall induce or restrain rainfall by any method such
as cloud seeding without a permit from the proper
government emergency.

Article 43. No person shall raise or lower the water level of a
river stream, lake, lagoon, or marsh nor drain the same
without a permit.

Article 44. Drainage systems shall be so constructed that their
outlets are rivers, lakes, the sea, natural bodies of water, or
such other water course as may be approved by the proper
government agency.

Article 45. When a drainage channel is constructed by a
number of persons for their common benefit, the cost of
construction and maintenance of the channel shall be borne
by each in proportion to the benefits drived.

Article 46. When artificial means are employed to drain water
from higher to lower land, the owner of the higher land shall
select the routes and methods of drainage that will cause the
minimum damage to the lower lands, subject to the
requirements of just compensation.

Article 47. When the use, conveyance or storage of waters
results in damage to another, the person responsible for the
damage shall pay compensation.

Article 48. When a water resources project interferes with the
access of landowner to a portion of his property or with the
conveyance of irrigation or drainage water, the person or
agency constructing the project shall bear the cost of
construction and maintenance of the bridges, flumes and
other structures necessary for maintaining access, irrigation,
or drainage, in addition to paying compensation for land and
incidental damages.

Article 49. Any person having an easement for an aqueduct
may enter upon the servient land for the purpose of cleaning,
repairing or replacing the aqueduct or the removal of
obstructions therefrom.

Article 50. Lower estates are obliged to receive the waters
which naturally and without the intervention of man flow from
the higher estate, as well as the stone or earth which they
carry with them.

The owner of the lower estate can not construct works which
will impede this natural flow, unless he provides an alternative
method of drainage; neither can the owner of the higher

estate make works which will increase this natural flow.



Article 51. The banks of rivers and streams and the shores of
the seas and lakes throughout their entire length and within a
zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone longer
than what is necessary for recreation, navigation, floatage,
fishing or salvage or to build structures of any kind.

Article 52. The establishment, extent, form, and conditions of
easements of water not expressly determined by the
provisions of this Code shall be governed by the provisions of
the Civil Code.

CHAPTER V
CONTROL OF WATERS

Article 53. To promote the best interest and the coordinated
protection of flood plain lands, the Secretary of Public Works,
Transportation and Communications may declare flood
control areas and promulgate guidelines for governing flood
plain management plans in these areas.

Article 54. In declared flood control areas, rules and
regulations may be promulgated to prohibit or control
activities that may damage or cause deterioration or lakes and
dikes, obstruct the flow of water, change the natural flow of
the river, increase flood losses or aggravate flood problems.

Article 55. The government may construct necessary flood
control structures in declared flood control areas, and for this
purpose it shall have a legal easement as wide as may be
needed along and adjacent to the river bank and outside of
the bed or channel of the river.

Article 56. River beds, sand bars and tidal flats may not be
cultivated except upon prior permission from the Secretary of
the Department of Public Works, Transportation and
Communication and such permission shall not be granted
where such cultivation obstructs the flow of water or increase
flood levels so as to cause damage to other areas.

Article 57. Any person may erect levees or revetments to
protect his property from flood, encroachment by the river or
change in the course of the river, provided that such
constructions does not cause damage to the property of
another.

Article 58. When a river or stream suddenly changes its course
to traverse private lands, the owners of the affected lands
may not compel the government to restore the river to its
former bed; nor can they restrain the government from taking
steps to revert the river or stream to its former course. The
owners of the land thus affected are not entitled to
compensation for any damage sustained thereby. However,
the former owners of the new bed shall be the owners of the
abandoned bed in proportion to the area lost by each.

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The owners of the affected lands may undertake to return the
river or stream to its old bed at their own expense; Provided,
That a permit therefor is secured from the Secretary of Public
Works, Transportation and Communication and work
pertaining thereto are commenced within two years from the
change in the course of the river or stream.

Article 59. Rivers, lakes and lagoons may, upon the
recommendation of the Philippines Coast Guard, be declared
navigable either in whole or in part.

Article 60. The rafting of logs and other objects on rivers and
lakes which are flotable may be controlled or prohibited
during designated season of the year with due regard to the
needs of irrigation and domestic water supply and other uses
of water.

Article 61. The impounding of water in ponds or reservoirs may
be prohibited by the Council upon consultation with the
Department of Health if it is dangerous to public health, or it
may order that such pond or reservoir be drained if such is
necessary for the protection of public health.

Article 62. Waters of a stream may be stored in a reservoir by a
permittee in such amount as will not prejudice the right of any
permittee downstream. Whoever operates the reservoir shall,
when required, release water for minimum stream flow.

All reservoir operations shall be subject to rules and
regulations issued by the Council or any proper government
agency.

Article 63. The operator of a dam for the storage of water may
be required to employ an engineer possessing qualifications
prescribed for the proper operations, maintenance and
administration of the dam.

Article 64. The Council shall approve the manner, location,
depth, and spacing in which borings for subterranean or
ground water may be made, determine the requirements for
the registration of every boring or alteration to existing
borings as well as other control measures for the exploitation
of subterranean or ground water resources, and in
coordination with the Professional Regulation Commission
prescribe the qualifications of those who would drill such
borings.

No person shall drill a well without prior permission from the
Council.

Article 65. Water from one river basin may be transferred to
another river basin only with approval of the Council. In
considering any request for such transfer, the Council shall
take into account the full costs of the transfer, the benefits
that would accrue to the basin of origin without the transfer,
the benefits would accrue to the receiving basin on account of
the transfer, alternative schemes for supplying water to the
receiving basin, and other relevant factors.

CHAPTER VI

CONSERVATION AND PROTECTION OF WATERS AND


WATERSHEDS AND RELATED LAND RESOURCES

Article 66. After due notice and hearing when warranted by
circumstances, minimum stream flows for rivers and streams,
and minimum water levels for lakes may be established by the
Council under such conditions as may be necessary for the
protection of the environment, control of pollution,
navigation, prevention of salt damage, and general public use.

Article 67. Any watershed or any area of land adjacent to any
surface water or overlying any ground water may declared by
the Department of Natural Resources as protected area Rules
and regulations may be promulgated by such Department to
prohibit or control such activities by the owners or occupants
thereof within the protected area which may damage or cause
the deterioration of the surface water or ground water or
interfere with the investigation, use, control, protection,
management or administration of such waters.

Article 68. It shall be the duty of any person in control of a well
to prevent the water from flowing on the surface of the land,
or into any surface water, or any porous stratum under neath
the surface without being beneficially used.

Article 69. It shall be the duty of any person in control of a well
containing water with minerals or other substances injurious
to man, animals, agriculture, and vegetation to prevent such
waters from flowing on the surface of the land or into any
surface water or into any other aquifer or porous stratum.

Article 70. No person shall utilize an existing well or pond or
spread waters for recharging substerranean or ground water
supplies without prior permission of the Council.

Article 71. To promote better water conservation and usage
for irrigation purposes, the merger of irrigation associations
and the appropriation of waters by associations instead of by
individuals shall be encouraged.

No water permit shall be granted to an individual when his
water requirement can be supplied through an irrigation
association.

Article 72. In the consideration of a proposed water resource
project, due regard shall be given to ecological changes
resulting from the construction of the project in order to
balance the needs of development and the protection of the
environment.

Article 73. The conservation of fish and wildlife shall receive
proper consideration and shall be coordinated with other
features of water resources development programs to insure
that fish and wildlife values receive equal attention with other
project purposes.

Article 74. Swamps and marshes which are owned by the State
and which primary value for waterfowl propagation or other
wildlife purposes may be reserved and protected from
drainage operation and development.

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Article 75. No person shall, without prior permission from the
National Pollution Control Commission, build any works that
may produce dangerous or noxious substances or perform any
act which may result in the introduction of sewage, industrial
waste, or any pollutant into any source of water supply.

Water pollution is the impairment of the quality of water
beyond a certain standard. This standard may vary according
to the use of the water and shall be set by the National
Pollution Control Commission.

Article 76. The establishment of cemeteries and waste
disposal areas that may affect the source of a water supply or
a reservoir for domestic or municipal use shall be subject to
the rules and regulations promulgated by the Department of
Health.

Article 77. Tailings from mining operations and sediments from
placer mining shall not be dumped into rivers and waterways
without prior permission from the Council upon
recommendation by the National Pollution Control
Commission.

Article 78. The application of agricultural fertilizers and
pesticides may be prohibited or regulated by the National
Pollution Control Commission in the areas where such
application may cause pollution of a source of water supply.

CHAPTER VII
ADMINISTRATION OF WATERS AND ENFORCEMENT OF THE
PROVISIONS OF THIS CODE

x x x
CHAPTER VIII
PENAL PROVISIONS

xxx
CHAPTER IX
TRANSITORY AND FINAL PROVISIONS

xxx

Waters refer to water under the ground, water above the
ground, water in the atmosphere and waters of the sea within
the territorial jurisdiction of the Philippines.

Waters owned by the State:
1) Continuous or intermittent waters arising on such lands;
2) Lakes and lagoons naturally occurring on such lands;
3) Rain water falling on such lands;
4) Subterranean or ground waters; and
5) Waters in swamps and marshes

Reverse Accession 120 FC; 321 CC


FC Article 120. The ownership of improvements, whether for


utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the acts
or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse, subject

to the following rules:



When the cost of the improvement made by the
conjugal partnership and any resulting increase in
value are more than the value of the property at the
time of the improvement, the entire property of one
of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value
of the property of the owner-spouse at the time of
the improvement; otherwise, said property shall be
retained in ownership by the owner-spouse, likewise
subject to reimbursement of the cost of the
improvement.

In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the
time of the liquidation of the conjugal partnership.


Article 321. The property which the unemancipated child has
acquired or may acquire with his work or industry, or by any
lucrative title, belongs to the child in ownership, and in
usufruct to the father or mother under whom he is under
parental authority and in whose company he lives; but if the
child, with the parent's consent, should live independently
from them, he shall be considered as emancipated for all
purposes relative to said property, and he shall have over it
dominion, usufruct and administration.


OVER MOVABLES

The classes of accession when it comes to movable property


are adjunction or conjunction, specification and commixtion or
confusion. In adjunction or conjunction, two different things
are so united that they form asingle object, but each
component part preserves its nature. This last characteristic
distinguishes it from commixtion or confusion, which implies a
greater interpenetration and even decomposition of the
things mixed. On the other hand, specification is distinguished
from conjunction and commixtion in that there is union of two
objects in the latter, while in the former it is the work of a third
person that is united to the property of another.


a.

Conjunction or Adjunction


Article 466. Whenever two movable things belonging to
different owners are, without bad faith, united in such a way
that they form a single object, the owner of the principal thing
acquires the accessory, indemnifying the former owner
thereof for its value.


Article 467. The principal thing, as between two things
incorporated, is deemed to be that to which the other has
been united as an ornament, or for its use or perfection.


Article 468. If it cannot be determined by the rule given in the
preceding article which of the two things incorporated is the

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principal one, the thing of the greater value shall be so
considered, and as between two things of equal value, that of
the greater volume.

In painting and sculpture, writings, printed matter, engraving
and lithographs, the board, metal, stone, canvas, paper or
parchment shall be deemed the accessory thing.

Art. 466
There is accession by adjunction only when the two things
united cannot be separated without injury to them. It is
necessary that:
1) That the two things belong to different owners
2) That they form a single object, or that their
separation would impair their nature.

The application of the rule of acceessorium sequitur principale,
must give way to any express or implied agreement of the
owners as to the ownership of the new object.

When the adjunction is of three or more things, the provisions
of this and the following articles should be applied, in an
equitable manner. The judge should determine which is the
principal, and adjudicate all the accessories to its owner.


Art. 467
Criteria to determine principal:
1. That of the importance or purpose of the things,
stated in this article.
2. That of their value
3. That of their volume

Art. 468
When the criteria of value and of volume cannot be applied,
because of equality of these conditions, the matter should be
determined by taking into account all the provisions applicable
in order to decide from the comparative merits, utility and
volume of the things, which should be considered as the
principal and which the accessory.

Owner of the resulting object the resulting object shall
belong to the owner of the principal thing, but with the
obligation to indemnify the owner of the accessory for the
value of the latters thing.

Good faith is necessary in adjunction. Good faith is that
condition of the mind where the person concerned is not
aware that there exists in his title or mode of acquisition any
flaw which invalidates it.

If the owner of the principal thing acted in bad faith, Article
470 (2) will operate:
the owner of the accessory thing shall have the
right to choose between the former paying him its
value or that the thing belonging to him be
separated, even though for his purpose it be
necessary to destroy the principal thing; and in both
cases, furthermore, there shall be indemnity for
damages.

Primary factors to determine the principal and the accessory


(Article 467): (INTENT as consideration)
1) The thing which is incorporated to another thing as an
ornament is the accessory. The other is the principal.
2) The thing which is added to or joined to another for the
use or perfection of the latter is the accessory. The other
is the principal.

Secondary factors to determine the principal and the
accessory (Article 468):
1) The thing of greater value shall be considered as principal.
(VALUE as consideration)
2) If they happen to be of equal value, the one with greater
volume shall be considered as principal. (VOLUME as
consideration)
3) Special criteria: In painting and sculpture, writings,
printed matter, engraving and lithographs, the board,
metal, stone, canvas, paper or parchment shall be
deemed the accessory thing.
The law gives more importance to the work done rather
than on the things where the work has been done. The
work is the result of an intellectual prowess and acumen
which is beyond pecuniary estimation.

Classes of adjunction or conjunction:

i.

Inclusion or engraftment


Art, 469
Impliedly, this article refers to adjunction by inclusion and by
soldering, which are the only forms in which separation is
possible without injury to the things united, and to which the
situation contemplated in the second paragraph can have
reference.

The expenses for the separation of the objects should be
borne by the owner who caused the union or incorporation,
because he is the one responsible for the conflict of rights.

E.g. setting a precious stone on a golden ring. The stone will
pertain to the owner of the ring.

ii. Soldadura or soldering



Art, 469
Impliedly, this article refers to adjunction by inclusion and by
soldering, which are the only forms in which separation is
possible without injury to the things united, and to which the
situation contemplated in the second paragraph can have
reference.

The expenses for the separation of the objects should be
borne by the owner who caused the union or incorporation,
because he is the one responsible for the conflict of rights.

E.g. Joining a piece of medal to another metal belonging to a
different owner. The object will belong to the owner of the
principal thing as determined under Articles 467 or 468.

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(a) Plumbatura different metals


(b) Ferruminatio Same metal

iii. Tejido or weaving



E.g. making a baby dress using threads belonging to another
person. The dress will pertain to the weaver who owns the
cloth.

iv. Escritura or writing



E.g. writing a poem on papers belonging to another. The
papers will pertain to the writer.

v. Pintura or painting

E.g. painting a scenic view on a canvas belonging to another.
The canvas will pertain to the painter.


Article 469. Whenever the things united can be separated
without injury, their respective owners may demand their
separation.

Nevertheless, in case the thing united for the use,
embellishment or perfection of the other, is much more
precious than the principal thing, the owner of the former may
demand its separation, even though the thing to which it has
been incorporated may suffer some injury.


Article 470. Whenever the owner of the accessory thing has
made the incorporation in bad faith, he shall lose the thing
incorporated and shall have the obligation to indemnify the
owner of the principal thing for the damages he may have
suffered.

If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have a
right to choose between the former paying him its value or
that the thing belonging to him be separated, even though for
this purpose it be necessary to destroy the principal thing; and
in both cases, furthermore, there shall be indemnity for
damages.

If either one of the owners has made the incorporation with
the knowledge and without the objection of the other, their
respective rights shall be determined as though both acted in
good faith.


Article 471. Whenever the owner of the material employed
without his consent has a right to an indemnity, he may
demand that this consist in the delivery of a thing equal in kind
and value, and in all other respects, to that employed, or else
in the price thereof, according to expert appraisal.

If the things united can be separated without injury to each
other, their respective owners may demand their separation.

However, if the accessory happens to be much more precious


than the principal (to which it was united for the use,
embellishment or perfection), the owner of the former may
demand its separation even though the principal may suffer
injury.

When the owner of the accessory who caused the
incorporation acted in bad faith, he shall indemnify the owner
of the principal for the damages which the latter has suffered.

When the owner of the principal is the one who acted in bad
faith, the owner of the accessory has the right to demand the
following:
1) The payment of the value of the accessory thing with
damages; or
2) The separation of the accessory thing from the principal,
even though the principal would be destroyed plus
damages.

Ways of paying indemnity:
1) Delivery of a thing similar in kind and value and in all other
respects of that thing used or incorporated by the other
party
2) Payments of the price as separated by experts in case the
parties cannot stipulate on the price. Sentimental value
shall also be considered (Article 475).

b.

Commixtion and Confusion


Article 472. If by the will of their owners two things of the
same or different kinds are mixed, or if the mixture occurs by
chance, and in the latter case the things are not separable
without injury, each owner shall acquire a right proportional to
the part belonging to him, bearing in mind the value of the
things mixed or confused.


Article 473. If by the will of only one owner, but in good faith,
two things of the same or different kinds are mixed or
confused, the rights of the owners shall be determined by the
provisions of the preceding article.

If the one who caused the mixture or confusion acted in bad
faith, he shall lose the thing belonging to him thus mixed or
confused, besides being obliged to pay indemnity for the
damages caused to the owner of the other thing with which
his own was mixed.

Art. 472
This article refers to commixtion or confusion. If the things
mixed are of the same kind and quality, there is no conflict of
rights, and the mixture can easily be divided between two
owners. It is only when they are of different kinds or quality
that a co-ownership arises.

When the mixture is made by the will of the owners, it cannot
be subjected absolutely to the provisions of this article. The
parties may freely stipulate such terms and agreements as
they may deem proper.

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Right of Accession

Property Reviewer

Classes of mixture:
1) Confusion this results when liquids belonging to
different owners got mixed by agreement or by chance.
2) Commixtion this results when the solid matters are
mixed by agreement or by chance.

If the things mixed or confused (by chance) are not separable
without injury, each owner shall have a right to the resulting
thing proportionate to the value of the thing he owns.

If the things are mixed or confused by an act of an owner of
one thing in good faith, the rights of the owners shall be in
proportion to the things they own. In effect, there is co-
ownership.

However, if the perpetrator of the mixture acted in bad faith,
he shall suffer the following sanctions:
1) He shall lose the thing belonging to him which was mixed
or confused with the other thing belonging to another
who is not in bad faith. If both are in bad faith, they shall
be regarded as both in good faith on the principle that if
both parties are in bad faith, the bad faith of one
neutralizes the bad faith of the other.
2) He shall be liable for damages to the owner of the thing
mixed or confused.

Cases:
Siari Valley sought to recover 200 heads of cattle that were
driven or wandered from its pasture lands into the adjoining
lands of Lucasan. Lucasan himself admitted such commixtion
although he says that Siari Valley had already retrieved its
animals. Which cattle belongs to the owner can no longer be
determined.


Lucasan willfully caused the commixtion such that under
Article 383 (now 473), he will be held to forfeit his own cattle.
No atual evidence exists that the 823 missing cattles were
taken by Lucasan, but in view of the proof that his men, on 2
occasions, drove away more than 30 heads, it may be
presumed that the others must have also been driven away on
subsequent prior occasions. (Siari Valley Estates vs. Lucasan)
www
Jose Bernabe owns a rice warehouse where Urbano Santos
deposited 778 cavans and 38 kilos of palay, and Pablo
Tiongson 1,026 cavans and 9 kilos. The sacks did not bear any
marks or identifications to secure identification nor were they
separated from one another. Tiongson filed an action to
recover the palay he deposited but there were only 924 cavans
and 31 kilos of palay. Urbano Santos sought to recover his
pala mixed with those which Tiongson had attached.

Tiongson must pay Santos the value of 396.49 cavans of
palayin proportion to the 924 cavans of palay which were
attached and sold, the 778 cavans and 38 kilos of palay
belonging to the plaintiff Santos, having been mixed with the
1,026 cavans and 9 kilos of palay belonging to the defendant
Tiongson in Bernabes warehouse. And there being no means
of separating the cavans and kilos of palay belonging to
Santos and Tiongson, Article 381 CC states that, If, by the will
of their owners, two things of identical or dissimilar nature are

mixed, or if the mixture occurs accidentally, it in the latter case


the things cannot be separated without injury, each owner
shall acquire a right in the mixture proportionate to the part
belonging to him according to the value of the things mixed
or commingled. (Santos vs. Bernabe)

c.

Specification


Article 474. One who in good faith employs the material of
another in whole or in part in order to make a thing of a
different kind, shall appropriate the thing thus transformed as
his own, indemnifying the owner of the material for its value.

If the material is more precious than the transformed thing or
is of more value, its owner may, at his option, appropriate the
new thing to himself, after first paying indemnity for the value
of the work, or demand indemnity for the material.

If in the making of the thing bad faith intervened, the owner of
the material shall have the right to appropriate the work to
himself without paying anything to the maker, or to demand
of the latter that he indemnify him for the value of the
material and the damages he may have suffered. However, the
owner of the material cannot appropriate the work in case the
value of the latter, for artistic or scientific reasons, is
considerably more than that of the material.

Specification giving of a new form to a material belonging to
another person through the application of labor or industry.
The material used is transformed into another thing or is
changed in identity.

Rules in specification:
1) When the maker is in good faith:
a) The maker shall appropriate the new thing but he
must indemnify the owner of the material for the
value thereof.
b) The maker cannot appropriate the new thing if the
material transformed is worth more than the new
thing. In which case, the owner of the material can
appropriate they new thing subject to the payment
of the value of the work, or he can demand
indemnity for the material with damages.
2) When the maker is in bad faith:
a) The owner of the material can appropriate the work
without paying for the labor or industry exerted
b) The same owner can demand indemnity for the
material plus damages.
However, the owner of the material cannot
appropriate the work if the value thereof is
considerably more than the value of the material due
to the artistic or scientific importance of the work.

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41

Quieting of Title

Property Reviewer

Part 4. Quieting of Title



An action for quieting of title is a proceeding in equity, the
purpose of which is the declaration of the invalidity of a claim
on a title or the invalidity of an interest in property adverse to
that of the plaintiff, and thereafter to free the plaintiff and all
those claiming under him any hostile claim thereon.

Property involved in quieting of title: real property

Justifications for quieting of title:
1) To prevent future of further litigation on the ownership
of the property
2) To protect the true title and possession
3) To protect the real interest of both parties
4) To determine and make known the precise state of the
title for the guidance of all

Article 476. Whenever there is a cloud on title to real property
or any interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is apparently valid or
effective but is in truth and in fact invalid, ineffective,
voidable, or unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or to quiet the
title.

An action may also be brought to prevent a cloud from being
cast upon title to real property or any interest therein.

A cloud on title is an outstanding instrument, record, claim,
encumbrance or proceeding which is actually invalid or
inoperative, but which may nevertheless impair or affect
injuriously the title to property.

A cloud on a title may emerge by reason the following:
1) Any instrument which could be a contract, or any deed
of conveyance, mortgage, assignment, waiver, etc.
covering the property concerned
2) Any record, claim, encumbrance like an attachment,
lien, inscription, adverse claim, lis pendens, on a title
3) Any proceeding like an extrajudicial partition of
property

These should appear valid or effective, and extraneous
evidence is needed to prove their validity or invalidity. These
must be in truth and fact invalid, ineffective, voidable, or
unenforceable and which may be prejudicial to the true owner
or possessor.

The alleged cloud must be prima facie substantial, and cast
such a suspicion on the title or interest to which it is hostile as
will injuriously affect the market value of the property, or
seriously embarrass the owner either in disposing of the
property or in maintaining his rights.

As a general rule, a cloud which may be removed by suit to
quiet title is not created by mere verbal or parole assertion of
ownership or an interest in property.

Article 476 contemplates 2 actions:

1)
2)

Remedial action to remove the cloud on a title or to


quiet a title
Preventive or precautionary action to prevent a future
cloud on being cast upon the title to real property or any
interest therein.


Article 478. There may also be an action to quiet title or
remove a cloud therefrom when the contract, instrument or
other obligation has been extinguished or has terminated, or
has been barred by extinctive prescription.

Other instances that justify an action to quiet title:
1) When the contract, instrument or other obligation has
already been extinguished or terminated.

The title to property may be quieted with respect to any
instrument which has become functus officio (no further legal
effect) which can only be shown by extrinsic evidence. Title
and liens which have lost their force or failed to become
operative because the persons entitled thereto failed to
enforce them have been cancelled as clouds. Title to property
will be quieted against a conveyance or mortgage which has
been executed for the purpose of

2) When the contract, instrument, or other obligations had
already been barred by extinctive prescription.

A. Differences between an action to quiet title and


action:
1. To remove a cloud
Basis

Action to Quiet Title

Purpose

To put an end to
vexatious litigations in
respect to the
property concerned.

Nature

Plaintiff asserts own


claim and declares that
the claim of the
defendant is
unfounded and calls on
the defendant to
justify his claim on the
property that the same
may be determined by
the court.

Filed against people


who have claims;
claims are more
general in nature

Action to Remove
Cloud
To procure the
cancellation, release of
an instrument,
encumbrance or claim
in the plaintiffs title
which affects the title
or enjoyment of the
property.
Plaintiff declares his
own claim and title,
and at the same time
indicates the source
and nature of the
defendants claim,
pointing its defects
and prays for the
declaration of its
invalidity.
Filed against
defendant who asserts
claims based on an
invalid instrument (but
not apparent)

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Quieting of Title

Property Reviewer

2.

To prevent a cloud (action quia timet)


The Court has not only the power to remove and existing
cloud, but also the power to prevent the casting of a cloud on
the title to property. Relief is granted if the threatened or
anticipated cloud is one which, if it existed, be removed by a
suit to quiet title. Thus, the Court will restrain a defendant
from proceeding with an illegal act which if completed will
necessarily cast a cloud upon the plaintiffs title

Requisites of an action to prevent a cloud:
1) Plaintiff has a title to a real property or interest therein
2) Defendant is bent on creating a cloud on the title or
interest therein. The danger must not be merely
speculative or imaginary but imminent.
3) Unless the defendant is restrained or stopped, the title or
interest of the plaintiff will be prejudiced or adversely
affected.

Action to Quiet
Action to Prevent
Basis
Title
Cloud
To put an end to
To remove a
vexatious
possible
litigations in
Purpose
foundation for a
respect to the
future hostile
property
claim
concerned.
Remedial action:
Preventive action:
Nature
involves a present
prevents a future
adverse claim
cloud on title

B. Prescription of action
1)

2)

When the plaintiff is in possession of the property, the


action to quiet title does not prescribe. The reason is that
the owner of the property or right may wait until his
possession is disturbed or his title is assailed before
taking steps to vindicate his right.
When the plaintiff is not in possession of the property,
the action to quiet title may prescribe. The prescriptive
period for the recovery of land is 10 years when the
prescription is ordinary, or 30 years when the prescription
is extraordinary.


Cases:
Land dispute between the Glors and the Olvigas over Lot 13 of
the Guinayangan Public Land Subdivision. The ascendants of
Glor have been in possession of subject property since 1950. A
homestead application was filed in 1960 but was not acted
upon due to unknown reasons. In 1967, Olviga acquired a
registered title for the property through a cadastral
proceeding. The Glor spouses at the time were not able to
follow the proceeding because of sickness, lack of education
and lack of notice of the hearings. They came to know of the
title only in 1988. The Glors continued possession of the
property up to the present. The lower court and CA ruled in
favor of the Glors.

An action for reconveyance of a parcel of land based on


implied or constructive trust prescribes in ten years, the point
of reference being the date of registration of the deed of the
date of the issuance of the certificate of title over the property
(Vda. de Portugal v. IAC, 159 SCRA 178). But this rule applies
only when the plaintiff is not in possession of the property,
since if a person claiming to be the owner thereof is in actual
possession of the property, the right to seek reconveyance,
which in effect seeks to quiet title to the property, does not
prescribe. In the case at bar, private respondents and their
predecessors-in-interest were in actual possession of the
property since 1950. Their undisturbed possession gave them
the continuing right to seek the aid of a court of equity to
determine the nature of the adverse claim of petitioners, who
in 1988 disturbed their possession.

NOTE ON RECKONING POINT OF PERIOD: Despite their
citation of Portugal, SC affirmed the CAs finding that the
reckoning point is from the date Glor knew about the title
(1988), instead of the date of its registration (1967). No
explanation was given by the SC on this point. (Olviga v. CA)
www
Dispute over a parcel of land in Bagong Barrio, Caloocan City
between Pingol and Donascos heirs. In 1969, Pingol sold the
property to Donasco. Payment was to be made by annual
installments until January 1976. Donasco failed to complete
the payment. He died in 1984, leaving a balance of P10, 161.
Donascos heirs remained in possession of the property. They
offered to pay the balance but Pingol refused to accept.
Donascos heirs filed a civil case against Pingol in 1988 to
compel him to accept payment. (Reckoning point: 1976)

Although the private respondents' complaint before the trial
court was denominated as one for specific performance, it is in
effect an action to quiet title. The real and ultimate basis of
petitioners' action is their ownership of [the property] with
their possession thereof, which entitles them to a
conveyance of the property (Bucton v. Gabar). Prescription
thus cannot be invoked against the private respondents for it
is aphoristic that an action to quiet title to property in one's
possession is imprescriptible. The rationale for this rule has
been aptly stated thus: The owner of real property who is in
possession thereof may wait until his possession is invaded or
his title is attacked before taking steps to vindicate his right. A
person claiming title to real property, but not in possession
thereof, must act affirmatively and within the time provided
by the statute. Possession is a continuing right as is the right
to defend such possession. So it has been determined that an
owner of real property in possession has a continuing right to
invoke a court of equity to remove a cloud that is a continuing
menace to his title. Such a menace is compared to a
continuing nuisance or trespass which is treated as successive
nuisances or trespasses, not barred by statute until continued
without interruption for a length of time sufficient to affect a
change of title as a matter of law." (Pingol v. CA)

C.

Who are entitled to bring action?


Article 477. The plaintiff must have legal or equitable title to,
or interest in the real property which is the subject matter of

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Quieting of Title

Property Reviewer

the action. He need not be in possession of said property.

One who has an equitable title to property may maintain an
action to quiet title thereon.

Legal title covers a situation where the party is the registered
owner of the property.

Equitable title covers a situation where the person has the
beneficial ownership of the property.

E.g. (Pineda) If by agreement, Peter had registered in his name
the property of John, Peter is the registered owner but John is
the beneficial owner, Peter is a mere trustee, while John is the
cestui que trust or beneficiary. Either Peter or John can file an
action to quiet or remove cloud on title.

D. Notes
1. There is a cloud on title to real property or any
interest to real property

2.

Plaintiff has legal or equitable title to or


interest in the subject/ real property

3.

Instrument record claim, etc. must be valid and


binding on its face but in truth and in fact
invalid, ineffective, void or unenforceable


The face of the instrument must be considered closely. If from
the four corners thereof, it appears that there is an invalid and
ineffective contract, there is no cloud existing on the title. But,
if there is a need to present evidence to establish its invalidity
to defeat the claim, then a cloud on title exists.
Test: Would the owner of the property in an action
for ejectment brought by the adverse party be
required to offer evidence to defeat a recovery?

The action to quiet title does not apply:
1) To questions involving interpretation of documents
2) To mere written or oral assertions of claims
a) Unless made in a legal proceeding
b) Or asserting that an instrument or entry in plaintiffs
favor is not what it purports to be
3) To boundary disputes
4) To deeds by strangers to the title unless purporting to
convey the property of the plaintiff
5) To instruments invalid on their face
6) Where the validity of the instrument involves a pure
question of law

4.

Plaintiff must return benefits received from


the defendant


Article 479. The plaintiff must return to the defendant all
benefits he may have received from the latter, or reimburse
him for expenses that may have redounded to the plaintiffs
benefit.

The provision is based on the maxim: He who seeks equity


must do equity.

Case:
Dispute over a parcel of land in Barrio Titong, Masbate,
Masbate between Titong and Laurio. Two surveys were made
which covered the property: one for Titong, and one for a
relocation done by the government. The two had
discrepancies. Laurio filed a complaint against the first survey
to the Bureau of Lands but the case was held in abeyance for
the present case. Titong was able to acquire a tax declaration
covering the subject property and filed the instant case of
quieting of title. The lower court and CA held in favor of
Laurio.

The instant petition must be denied for the reason that the
lower court should have outrightly dismissed the complaint
for quieting of title. The complaint failed to allege that an
"instrument, record, claim, encumbrance or proceeding"
beclouded the plaintiff's title over the property involved.
Titong merely alleged that the Laurios, together with their
hired laborers and without legal justification, forcibly entered
the southern portion of the land of the plaintiff and plowed
the same. Through his allegations, what petitioner imagined as
clouds cast on his title to the property were private
respondents' alleged acts of physical intrusion into his
purported property. Clearly, the acts alleged may be
considered grounds for an action for forcible entry but
definitely not one for quieting of title.

Even if the complaint below were to be considered as a valid
one for quieting of title, still, the instant petition for review on
certiorari must fail. The courts below correctly held that when
petitioner "sold, ceded, transferred and conveyed" the 5.5-
hectare land in favor of Pablo Espinosa, his rights of ownership
and possession pertaining thereto ceased and these were
transferred to the latter. In the same manner, Espinosa's
rights of ownership over the land ceased and were transferred
to private respondent upon its sale to the latter. (Titong v. CA)

5.

Actions to quiet title are proceedings quasi in


rem


Nature of the action they are suits against a particular
person or persons in respect to the res and the judgment will
apply only to the property in dispute. These suits are quasi in
rem.

Case:
Dispute over a lot with an apartment in Marulas, Valenzuela
City. The Alcantaras sold the property to the Portics and on
the condition that they will assume the formers obligation on
mortgage with the SSS. The Portics defaulted in payment and
sold the property to Cristobal, who to pay for the same by
paying for the amount the PRotics owed to the SSS and an
additional P35,000. The Alcantaras also executed a sale in
favor of Cristobal for the amount of P50,000. A TCT was
executed in favor of Cristobal by the Alcantaras. The Portics
filed a case of quieting of Title, assailing the TCT held by

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44

Quieting of Title

Property Reviewer

Cristobal. RTC held in favor of Portic, but the CA reversed the
decision.

The action to quiet title are characterized as proceedings
quasi in rem. Technically, they are neither in rem nor in
personam. In an action quasi in rem, an individual is named as
defendant. However, unlike suits in rem, a quasi in rem
judgment is conclusive only between the parties.

Generally, the registered owner of a property is the proper
party to bring an action to quiet title. However, it has been
held that this remedy may also be availed of by a person other
than the registered owner because, in the Article reproduced
above, title does not necessarily refer to the original or
transfer certificate of title. Thus, lack of an actual certificate of
title to a property does not necessarily bar an action to quiet
title. As will be shown later, petitioners have not turned over
and have thus retained their title to the property.

The mere issuance of the Certificate of Title in favor of
Cristobal did not vest ownership in her. Neither did it validate
the alleged absolute purchase of the lot. Time and time again,
this Court has stressed that registration does not vest, but
merely serves as evidence of, title. Our land registration laws
do not give the holders any better title than that which they
actually have prior to registration. (Sps. Portic v. Cristobal)

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45

Co-ownership

Property Reviewer

Part 5. Co-ownership

Article 484. There is co-ownership whenever the ownership
of an undivided thing or right belongs to different persons.
In default of contracts, or of special provisions, co-
ownership shall be governed by the provisions of this Title.

A. Definition

Right of common dominion which two or more persons have
in a spiritual part of a thing, not materially or physically divided
(Sanchez-Roman)

Manifestation of the private right of ownership, which instead
of being exercised by the owner in an exclusive manner over
the things subject to it, is exercised by two or more owners
and the undivided thing or right to which it refers is one and
the same (Manresa)

B. Characteristics

1.

There is plurality of owners but only one real


right or object of ownership:


There is unity or material indivision of a single object.

2.

The recognition of ideal shares, defined but


not physically identified


This determines the rights and obligations of the co-owners.

3.

Each co-owner has absolute control over his


ideal share


No mutual representation by the co-owners.

4.

Mutual respect among co-owners in regard to


use, enjoyment and preservation of the things
as a whole


The property is for common enjoyment.

Relationship of co-owner to the other co-owners is fiduciary
and attribute.

The property or thing held pro-indiviso is
impressed with a fiducial nature: each co-owner
becomes a trustee for the benefit of his co-owners
and he may not do any act prejudicial to the interest
of his co-owners

There is an express trust created: co-ownership is a
form of trust and every co-owner is a trustee for the
others

Requisites/elements:
1) Plurality of owners
2) Only one real right of ownership object of ownership
must be a single thing or right which is undivided

3)
4)

5)

Recognition of ideal shares (aliquot portions) which is


defined but not physically identified
Each co-owners right is limited only to his ideal share of
the physical whole, not over specific portions of the
property
There is mutual respect among co-owners in regards to
the use, enjoyment and preservation of the property
owned in common


Case:
Two sisters inherited lands from their mother. One sister (with
husband) accused the other sister (with husband) and refusing
to divide the properties, acting as sole administrator (with no
judicial authority) over the same, and selfishly enjoying the
rent (fruits) paid without sharing.

They finally divided the properties. But the house is Escolta
(Manila), which remained co-owned by them became a
problem. Complaining sister contends that she is entitled to
reside in that house without paying the other sister rent. Note
that certain areas of the house are for rent too (to 3rd
persons).

Until a judicial division is made, the respective part of each
holder cannot be determined. The effects of this would be:
Each co-owner exercises together with the others
joint ownership over the pro indiviso property, in
addition to his use and enjoyment of the same

Each co-owner may enjoy the whole property and
use it

Only limitation: a co-owner cannot use or enjoy the
property in a manner that shall injure the interest of
his other co-owners (Pardell v. Bartolome )

Subject of Co-ownership:
All things or property, including property rights: personal, real,
tangible or intangible (see Lab notes for examples)

C.

Differences between co-ownership and joint


tenancy


Co-Ownership
Origin: Civil Law
Other names: Tenancy in
Common, ownership in
common, Co-dominium
Ownership of share:
undivided thing + own ideal
part/share of each
Disposition of share: each
co-owner may dispose of his
undivided share without the
consent of others

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Joint Tenancy
Origin: Common Law
Other names: Joint
ownership, tenancy is
common, all for one, one
for all
Ownership of share: no
abstract share by the co-
owners because the rights
of the joint tenants are
inseparable
Disposition of share: a joint
tenant may not dispose of
his share/interest without
the consent of others
(rationale: he may prejudice

46

Co-ownership

Property Reviewer

Effect of Death: heirs of the


deceased inherit his share in
the property

Effect of legal
disability/incapacity: defense
against prescription is
exclusive to the co-owner
with disability/incapacity

the others by alienating his


share)
Effect of death: ownership
dies with him, and his
surviving joint tenants are
subrogated to his rights by
virtue of jus accrescendi
(survivorship)
Effect of legal
disability/incapacity: defense
of one can be used by all, as
disability/incapacity inures
to the benefit of the others
for purposes of prescription


D. Differences between partnership and co-
ownership


Co-ownership
Creation: law, fortuitous
event, occupancy,
succession or contract (no
formalities of a contract
necessary)

Creation: by contract

Personality: Partnership has


a distinct personality from
the partners

Purpose: collective
enjoyment of the property

Purpose: to obtain profit

Mutual agency: no mutual


representation (except if
there is a special authority
for such representation)
Effect of legal
disability/incapacity/death:
does not dissolve co-
ownership
Profit distribution: must be
proportional to the interest
of each co-owner (not
subject to stipulation)
Duration: general rule is that
an agreement to keep the
ownership for more than 10
years is void
Attachment: creditors of a
co-owner can attach on the
shares of others

E.

Sources of co-ownership
1.

Personality: co-ownership
has no legal personality

Disposal of share: each co-


owner may dispose of his
undivided share without the
consent of others

Partnership

Case:
15 people made contributions to buy a sweepstakes ticket,
which was registered in the name of Gatchalian and Co. The
ticket won 3rd prize, for which Gatchalian was required to file
an income tax return (covering the prize). They failed to pay
such tax so CIR issued a warrant of distraint and levy. The 15
people paid twice (in protest) to avoid embarrassment. These
15 people are now demanding refund of the two payments
made in protest.

There is partnership because each of them shelled out money
to buy a sweepstakes ticket with the sole purpose of dividing
equally the prize which they may win (and did win). In effect,
they created a partnership of a civil nature. This mean that
they are bound to pay the corresponding income tax.

There is exemption from payment of income tax only
when there was merely a community of property. On
the other hand, a partnership is liable for said tax.
(Gatchalian v. CIR)

Disposal of share: a partner


may not dispose of his
share/interest or transfer
the same to a 3rd person
without the consent of
others
Mutual agency: generally,
partner binds other partners
(there is mutual
representation)
Effect of legal
disability/incapacity/death:
partnership is dissolved
Profit distribution: depends
upon the stipulation in their
contract
Duration: no term limit set
by law
Attachment: creditors of a
partner cannot attach and
sell on execution the shares
of other partners in the
partnership

Law
a. Cohabitation


FC. Article 147. When a man and a woman who are capacitated
to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.

In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts
consisted in the care and maintenance of the family and of the
household.

Neither party can encumber or dispose by acts inter vivos of
his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other, until
after the termination of their cohabitation.

When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case of
default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon termination of
the cohabitation.

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Article 148. In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and
evidences of credit.

If one of the parties is validly married to another, his or her
share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is not validly
married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.


Article 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter.

Article 147: between a man and a woman capacitated to marry
each other

Article 148: between a man and a woman not capacitated to
marry each other

Article 90: if matter is not provided in the FC Chapter on ACP,
then rules on co-ownership will apply

b. Purchase

Article 1452. If two or more persons agree to purchase
property and by common consent the legal title is taken in the
name of one of them for the benefit of all, a trust is created by
force of law in favor of the others in proportion to the interest
of each.

Article 1452: an implied trust is created in favor of all the
others in the proportion to the interest of each when two or
more persons purchase a property and by common consent
the legal title is taken in the name of one of them for the
benefit of all

c. Succession

Article 1078. Where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the
deceased.

Article 1078: Intestate Succession (without will)
Subject to the payment of debts of the deceased, if
there are two or more heirs, the whole estate of the

decedent is owned in common by the heirs before


partition

For as long as the estate is left undivided, the heirs
will be considered co-owners of the inheritance. If
one of the heirs dies, his heirs will in turn be co-
owners of the surviving original heirs.

Note: if one of the co-heirs (co-owners) redeems the
property, this will inure to the benefit of the other
co-heirs (co-owners) even if they did not contribute
to the redemption money

Testate: by will, the estate is given to two or more
persons/heirs

d. Donation

Article 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has
otherwise provided.

The preceding paragraph shall not be applicable to donations
made to the husband and wife jointly, between whom there
shall be a right of accretion, if the contrary has not been
provided by the donor.

Article 753: If donation is made to several persons jointly, it is
understood to be in equal shares
There will be no rights of accretion unless the donor
provides for it


Article 753 (par 2): if donation is made to a husband and wife
jointly, there shall be a right of accretion unless the contrary is
so provided by the donor

e. Chance Commixtion in Good Faith



Article 472. If by the will of their owners two things of the
same or different kinds are mixed, or if the mixture occurs by
chance, and in the latter case the things are not separable
without injury, each owner shall acquire a right proportional to
the part belonging to him, bearing in mind the value of the
things mixed or confused.

Article 472: if by will of the owners or by chance a mixture
occurs and in the latter case the things cannot be separated
without causing injury, each owner shall acquire a right
proportional to the part belonging to him
Taken into consideration: the value of the things
mixed or confused


Case:
Lucasan admitted commixtion of his cattles with those of Siari
Valley (around 200) which were driven or known to have
wandered into his pasture lands. Problem is that they could no
longer determine which cattle belonged to whom.

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There was proof that Lucasans men, on two occasions, drove
away 30 cattles from Siari Valley to his pasture lands so it may
be presumed that the others were also driven away on
subsequent occasions. (One who stole a part of the money
must have taken also the larger sum lost by the offended party)

Because Lucasan willfully cause the commixtion, he will be
held to forfeit his own cattle in favor of Siary Valley. (Siari
Valley Estates v. Lucasan)

f. Hidden Treasure

Article 438. Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.

Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.

If the things found be of interest to science or the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated.


Article 438: co-ownership between finder and owner
When applicable: If finder (who is not the owner)
found hidden treasure by chance and is not a
trespasser

g. Easement of Party Wall



Article 658. The easement of party wall shall be governed by
the provisions of this Title, by the local ordinances and
customs insofar as they do not conflict with the same, and by
the rules of co-ownership.

Article658: governed by the provisions on easements, local
ordinances and customs (for as long as they dont conflict with
NCC) and by rules of co-ownership

h. Occupation Harvesting and Fishing



Case:
22 fishermen agreed that 1) theyd be owners of ambergris
found in the belly of a whale and 2) none of them could sell
without the consent of the others. One of them (Teck) loaded
the ambergris to Zamboanga and managed to convince
Ahmad (3rd person) to buy them, upon the promise of
protection from the other co-owners.

Sale is not valid because the ambergris was undivided
common property of the fishermen. Said common ownership
was acquired by occupancy there was an express agreement
between the co-owners that no one can sell it without the
consent of all.
For action on recovery on co-ownership: can be exercised not
just against 3rd persons but also a co-owner who performs any
act in relation to the thing held in common prejudicial or in

violation of the right of the community. (Punzalan v. Boon


Liat)

i. Condominium Law

RA 4726. The Condominium Act
Sec. 6. Unless otherwise expressly provided in the enabling
or master deed or the declaration of restrictions, the incidents
of a condominium grant are as follows:

(c) Unless otherwise, provided, the common areas
are held in common by the holders of units, in equal
shares, one for each unit.

RA 4726: common areas are held in common by the holders of
units in equal shares, one for each unit

Exception: if otherwise provided

Case:
Twin Towers wanted Litonjua (ALS Corp president), the
occupant of the condo unit owned by ALS corporation to pay
his unpaid condo quarterly assessments and dues as
authorized by its Master Deed and Declaration of Restrictions.

The Condominium Act provides that the Master Deed may
authorize the condominium corporation to collect
reasonable assessments to meet authorized expenditures.
For this purpose, each unit owner may be assessed
separately for its share of such expenditures in proportion
(unless otherwise provided) to its owners fractional interest
in the common areas.Twin Towers is expressly authorized by
its Master Deed to impose reasonable assessments on its
members to maintain the common areas and facilities of the
Condominium, and it has the right to collect assessments and
dues from its members and the corollary obligation of its
members to pay are beyond dispute.

Note: Petitioners Master Deed provides that a member of the
Condominium corporation shall share in the common
expenses of the condominium project. This obligation does
not depend on the use or non-use by the member of the
common areas and facilities of the Condominium. Whether or
not a member uses the common areas or facilities, these areas
and facilities will have to be maintained. Expenditures must be
made to maintain the common areas and facilities whether a
member uses them frequently, infrequently or never at all.
(Twin Towers v. CA)

2.

Contracts


a. By Agreement of Two or More Persons

Article 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned.

Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid.

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This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which
shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by
law.

No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

Article 494: two or more persons may agree to create a co-
ownership
Note: there is a 10-year term limit for ownership by
agreement
Term may be extended by a new
agreement

b. By Universal Partnership

Article 1778. A partnership of all present property is that in
which the partners contribute all the property which actually
belongs to them to a common fund, with the intention of
dividing the same among themselves, as well as all the profits
which they may acquire therewith.


Article 1779. In a universal partnership of all present property,
the property which belonged to each of the partners at the
time of the constitution of the partnership, becomes the
common property of all the partners, as well as all the profits
which they may acquire therewith.

A stipulation for the common enjoyment of any other profits
may also be made; but the property which the partners may
acquire subsequently by inheritance, legacy, or donation
cannot be included in such stipulation, except the fruits
thereof.


Article 1780. A universal partnership of profits comprises all
that the partners may acquire by their industry or work during
the existence of the partnership.

Movable or immovable property which each of the partners
may possess at the time of the celebration of the contract
shall continue to pertain exclusively to each, only the usufruct
passing to the partnership.

Of all present properties: Article 1778 and Article 1779
The partners contribute all the property which
belongs to them to a common fund wit the intent of
dividing the same among them (including the profit
which they may derive from it)

The property which belongs to each of the partners
at the time of the constitution of the partnership

becomes the common property of all the partners


(with the profits)

A stipulation for the common enjoyment of any
other profits may also be made.

Property of partners acquired after the creation of
the partnership by virtue of an inheritance, legacy or
donation cannot be included in such stipulation
except the fruits of the same

Of profit: Article 1780
Akin to CPG: comprises all that the partners may
acquire by their industry or work during the
existence of the partnership

c. By Associations and Societies with Secret


Articles

Article 1775. Associations and societies, whose articles are
kept secret among the members, and wherein any one of the
members may contract in his own name with third persons,
shall have no juridical personality, and shall be governed by
the provisions relating to co-ownership.

Article 1775: associations and societies whose the articles are
kept secret wherein anyone of the members may contract in
his own name with 3rd persons

No juridical personality

Legal effects of Co-ownership:
1) Bundle of Rights

A co-ownership creates rights in favor of each one of the co-
owners with respect to the property owned in common. All
the bundle of rights in ownership are found in co-ownership
also, with each co-owner having all such rights in conjunction
with the others.

Bundle of Rights:
1) Jus Utendi right to use and enjoy the property
(including accessions)
2) Jus Fruendi right to the fruits of the property
3) Jus Abutendi right to consume the property
4) Jus disponendi right to dispose of the property
(totally, partially, permanently, temporary)
5) Jus vindicandi right to recover the property
6) Jus possidendi right to possess the property by
virtue of ownership (implied from the first 5 rights)

Note: the exercise of these rights is limited by the concomitant
rights of each of the co-owners.


2)

Views of Rights


Right over the thing owned in common: limited by the
concomitant rights of the other co-owners

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Right over his ideal share or undivided interest over the same
property: not limited by the concomitant rights of the co-
owners
Since the co-owner is the absolute owner of his
share, he can deal with it like any full owner of an
incorporeal property

F.

Rights of each co-owner over the thing or property


owned in common

1.

To use the thing according to the purpose


intended (Jus Utendi) (Article 486)


Article 486. Each co-owner may use the thing owned in
common, provided he does so in accordance with the purpose
for which it is intended and in such a way as not to injure the
interest of the co-ownership or prevent the other co-owners
from using it according to their rights. The purpose of the co-
ownership may be changed by agreement, express or implied.

Limitations on co-owners right:
Use must be to the purpose for which it is intended
Use must be without prejudice to the interest of the co-
ownership
Use must not prevent the other co-owners from making use of
the property according to their own rights

Purpose of the thing may be altered by agreement, express or
implied, provided
It does not cause injury or prejudice to the interest of co-
ownership,
Any act against the collective interest is an
act against ownership
A co-owner cannot devote the community
property to his exclusive use to the
prejudice of the co-ownership

And, It does not prevent the use by other co-owners
Co-owners may establish rules regarding
the use of the property held in common
There must be a just and equitable
distribution of uses among all co-owners

Case:
The sister who lived in the house cannot be compelled to pay
rents beause she was merely exercising a right pertaining to
her as a co-owner. But with respect to the portion of the
house occupied by her husband as his office, the husband
should pay his sister-in-law of the rents such portion should
have received if rented by others. He cannot use such portion
gratuitously because that would prejudice the other co-owner
who is entitled to receive the rents that it should produce had
it been leased to others. (Pardell v. Bartolome , supra)


2.

To share in the benefits in proportion to his


interest provided the charges are borne by each
in the same proportion (Article 485)


Article 485. The share of the co-owners, in the benefits as well

as in the charges, shall be proportional to their respective


interests. Any stipulation in a contract to the contrary shall be
void.

The portions belonging to the co-owners in the co-ownership
shall be presumed equal, unless the contrary is proved.


Effect of Accretion: accretion added to any portion of land
owned in common becomes part of the property in co-
ownership
Such addition must be divided according to each co-owners
proportionate share

Cases:
Tining Resuena and others resided in the upper portion of a lot
allegedly under the acquiescence of a co-owner who owned
2/8 of the property. The owner of 6/8 of the property
eventually turned the area into a resort, and he wanted the
petitioners to leave so he could expand. So he filed for an
action for ejectment.

Article 487 of the Civil Code, which provides simply that [a]ny
one of the co-owners may bring an action in ejectment, is a
categorical and an unqualified authority in favor of owner to
evict the petitioners from the portions of lot. The rule is a co-
owner may bring an action to exercise and protect the rights
of all. When the action is brought by one co-owner for the
benefit of all, a favorable decision will benefit them; but an
adverse decision cannot prejudice their rights.

Note: the rule is that persons who occupy the land of another
at the latter's tolerance or permission, without any contract
between them, are necessarily bound by an implied promise
that they will vacate the same upon demand, failing in which a
summary action for ejectment is the proper remedy against
them. (Resuena v. CA)
www
Villaners parents owned a parcel of land. By a Deed of
Absolute Sale his parents sold the land tohim, who was then
married to Justiniana Lipajan. Villaners wife died, then he
conveyed the same property to Leonardo Acabal. The
document was a deed of sale but Villaner contends that it was
a mere lease agreement.

Villaners co-heirs claim that as co-owners of the property,
the Deed of Absolute Sale executed by Villaner in favor of
Leonardo does not bind them as they did not consent to such
an undertaking. There is no question that the property is
conjugal. The presumption applies to all properties acquired
during marriage. For the presumption to be invoked,
therefore, the property must be shown to have been acquired
during the marriage.

In the case at bar, the property was acquired on July 6, 1971
during Villaners marriage with Justiniana Lipajan. It cannot be
seriously contended that simply because the tax declarations
covering the property was solely in the name of Villaner it is
his personal and exclusive property. What is material is the
time when the land was acquired by Villaner, and that was
during the lawful existence of his marriage to Justiniana. Since

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the property was acquired during the existence of the
marriage of Villaner and Justiniana, the presumption is that it
is the couples conjugal property. Upon the death of Justiniana
Lipajan, the CPG was terminated and Villaners interest in the
conjugal partnership became actual and vested with respect
to an undivided one-half portion.]Justiniana's rights to the
other half, in turn, vested upon her death to her heirs,
including Villaner who is entitled to the same share as that of
each of their eight legitimate children. As a result then of the
death of Justiniana, a regime of co-ownership arose between
Villaner and his co-heirs in relation to the property. While
Villaner owns five-ninths (5/9) of the disputed property, he
could not claim title to any definite portion of the community
property until its actual partition by agreement or judicial
decree. Prior to partition, all that he has is an ideal or abstract
quota or proportionate share in the property. Villaner,
however, as a co-owner of the property has the right to sell his
undivided share.

Every co-owner has absolute ownership of his undivided
interest in the co-owned property and is free to alienate,
assign or mortgage his interest except as to purely personal
rights. While a co-owner has the right to freely sell and
dispose of his undivided interest, nevertheless, as a co-owner,
he cannot alienate the shares of his other co-owners nemo
dat qui non habet.

Villaner, however, sold the entire property without obtaining
the consent of the other co-owners. Following the well-
established principle that the binding force of a contract must
be recognized as far as it is legally possible to do so quando
res non valet ut ago, valeat quantum valere potest the
disposition affects only Villaners share pro indiviso, and the
transferee gets only what corresponds to his grantors share
in the partition of the property owned in common. (Acabal v.
Acabal)

3. Anyone of the co-owner may bring an action in
ejectment (Article 487)


Article 487. Any one of the co-owners may bring an action in
ejectment.


Action in Ejectment: covers all kinds of actions for the
recovery of possessions (i.e. forcible entry, unlawful detainer,
accion publiciana, accion reivindicatory)
Action of a co-owner need not include all the co-owners are
co-plaintiffs because the suit is deemed to be instituted for the
benefit of all

Action will not prosper if the action is brought for the benefit
of the plaintiff alone and not for the co-ownership

4. To compel the other co-owners to contribute

to expense for preservation of the property


owned in common and to the payment of
taxes (Article 488)

Article 488. Each co-owner shall have a right to compel the

other co-owners to contribute to the expenses of preservation


of the thing or right owned in common and to the taxes. Any
one of the latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may be
equivalent to his share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the co-ownership.


What are included: only necessary expense and taxes
Not included: those not for preservation and only produces
benefits for an owner + those which are for mere luxury,
embellishment or pleasure

Expenses for preservation: those which, if not made, would
endanger the existence of the thing or reduce its value or
productivity

Do not imply an improvement or increase
Expenses advanced for preservation by one co-owner should
be borne by all and the others are bound to contribute to their
respective shares

Useful expenses not covered: even if useful expenses increase
the income of the thing owned in common for the benefit of
all co-owners, one of them cannot incur such expenses
without the consent of others, and then charge the latter for
their shares
The community is not for profit but for preservation of the
sources of income only new sources of income then cannot
be created at the expense of the co-owners without their
consent

Renunciation: other co-owners have the option not to
contribute by renouncing so much of his undivided interest as
may be equivalent to his share of the necessary expenses and
taxes
Must be express, never tacit renunciation: failure to pay is not
a renunciation

Basis for computation: value of interest in the property at the
time of the renunciation

Requirement of Consent: waiver requires the consent of other
co-owners because it is a case of dacion en pago (cessation of
rights) involving expenses and taxes already paid (J.B.L.
Reyes)


Prejudicial waiver: no waiver shall be made if prejudicial to co-
ownership

Remedy against defaulting Co-Owner: action to compel him to
contribute such share
He cannot be compelled to renounce any portion of
his share because renunciation must be a voluntary
and free act

Article 489. Repairs for preservation may be made at the will
of one of the co-owners, but he must, if practicable, first notify
his co-owners of the necessity for such repairs. Expenses to
improve or embellish the thing shall be decided upon by a
majority as determined in article 492.

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Rule before repairs for preservation may be made at the will
of one-co-owner (Article 489)
As far as practicable: notification first
Rule: a co-owner can advance expenses for
preservation of the property even without prior
consent of others. He is entitled to be reimbursed for
the amount he spent for necessary expenses.

Requisites before expenses for embellishment or
improvement may be made:
1) Notify co-owners of necessity
2) Decision by majority (Sir Labitag: Majority pertains to
financial majority or controlling interest in the co-
ownership)

Effects of failure to notify-co-owners:
1) Does not deprive co-owner who advanced the expense
the right to be reimbursed the proportionate share of the
others in the expenses
2) Co-owner who shelled out the money has the burden of
proving the necessity of such repairs and the
reasonableness of the expense
3) He will not be fully reimbursed if: the others can prove
that he had notified them, they could have hired the
services of another who would charge less than the
people with whom the one who advanced contracted or
that they know of a store that sells the needed material
at a cheaper price (difference shall be borne by him
alone)

5. To oppose any act of Alteration (Article 491)


Article 491. None of the co-owners shall, without the consent
of the others, make alterations in the thing owned in common,
even though benefits for all would result therefrom. However,
if the withholding of the consent by one or more of the co-
owners is clearly prejudicial to the common interest, the
courts may afford adequate relief.


What is an alteration: change made by a co-owner in the thing
owned in common, which involves
1) Change of the thing from the state or essence in which
the others believe it should remain, or
2) Withdrawal of the thing from the use to which they wish
to be intended, or
3) Any other transformation which prejudices the condition
or substance of the thing or its enjoyment by the others

Main requirement for any act of alteration: unanimous
consent of all co-owners
Except: withholding of consent by any one of the co-
owners is clearly prejudicial to the common interest

Remedy: court decides (Article 491)

Form of consent: express or tacit



Alteration v. Administration
Alteration
Administration
More permanent result and
Refers to the enjoyment of
relate to the substance or
the thing and is of transitory
form of the thing
character
Nature: if the thing does not
When the thing in its nature
require any modification for
requires changes,
its enjoyment, any
modifications can be
modification that is made
considered as acts of simple
will be considered an
administration
alteration
Consent: Unanimous
Consent: mere majority is
consent of all
sufficient

Alteration without consent of all is illegal
The one who did the alteration will lose whatever he
spent in case he is made to demolish the work he has
done (no right to reimbursement)

Damages to the non-consenting co-owner can also
be granted by the court

Note: this is subject to ratification if co-owners
decide to contribute to the expenses by reimbursing
the co-owner who made the alteration (effect:
benefit of alteration will inure to the co-ownership)

6. To protest against acts of majority which are

seriously prejudicial to the minority (Article


492, par. 3)


Article 492(3). Should there be no majority, or should the
resolution of the majority be seriously prejudicial to those
interested in the property owned in common, the court, at the
instance of an interested party, shall order such measures as it
may deem proper, including the appointment of an
administrator.


Administration must be done by co-owners themselves.
The court cannot appoint an administrator to manage a
property when the co-owners want to handle it themselves

Rule: majority may only proceed to act without notice to the
minority if the circumstances warrant urgency

Who can be the administrator?
It may or may not be a co-owner, provided it was delegated by
the co-owners

What can an administrator do?
PROVIDED there is a unanimous consent of all co-owners, an
administrator may compromise on, donate, cede, alienate,
mortgage, or encumber the common property

What are acts seriously prejudicial?
1) Those that seriously affect the interest of the co-owners
in the community
2) Those that will cause injuries enough to justify the
intervention of the court

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3)
4)
5)

Not mere slight causes!


Those that go beyond the limits of mere administration or
invades the propriety rights of the co-owners
Those which expose the thing to serious danger to the
prejudice of the co-owners


Remedy of minority: injunction or worse, partition
Note: court may order proper measures including
appointment of administrator if necessary

Acts of Administration have the following characteristics:
1) They do not involve alteration
2) Renewable from time to time
3) They do not bind the co-ownership for a long time in the
future
4) They do not give rise to a real right over the things owned
in common

Cases:
6 pious women bought an image of Our Lady of Guadalupe.
One of them had the initial custody, which was passed on to
another and finally to another one of them pious women.
When the current holder wanted to make the Bishop of Lipa
custodian, everyone else objected.

Simple majority rule is applied when the parties are choosing
who must have custody. If the amount of individual
contribution is undetermined, the law presumes that they all
contributed proportionately. Given than in this case it was a
4/6 versus 2/6, the majority has a right to determine who
should be entrusted the with the custody of the image.
(Lavadia v. Cosme)
www
A widow and 3 of her children executed a contract of lease in
favor of Dy for 20 years, extendible for another 20 at the
option of the lessee. Two of the co-heris did not agree to this
arrangement (they didnt sign). The contract stipulated that at
the end of the 1st 20 years, the lessors may purchase all the
buildings on the land at a price to be determined by experts
appointed by the parties. Failure to take advantage of this
privilege means that the lease would automatically continue
for another 20 years.

The heirs made an extrajudicial partition of the land, and this
leased land is part of what was partitioned. They want to
recover from Dy the possession of the land, saying they did
not consent to the lease plus they were unaware of the
contract.

A contract of lease (during this time, 1920) at this time ceases
to be an act of administration if the duration is for more than 6
years. If it exceeds 6 years, the contract must be recorded in
the registry of property. Part owners representing the greater
portion of a property held in common have no power to lease
a property longer than 6 years without the consent of all co-
owners whose propriety rights would be restricted or annulled
by contracts of long duration. (OLD civil code: if more than 6
years, lease is an act of strict ownership so all co-owners must
consent)

Note: NCC requires that a special power of attorney is required


for leases of real property by an administrator when 1) the
contract is to be recorded in the registry of property and 2)
when the lease is for more than 1 year (Melencio v. Dy)
www
3 Tuasons co-owned a piece of land, and they entered into an
agreement re: no one shall sell, alienate or dispose of his
ownership without giving preference to the other co-owners
first. Later on, one of the Tuasons wanted the property
partitioned and the agreement annulled.

The obligation imposed by their agreement has for its purpose
and object the dissolution of the co-ownership and the
community by selling the parcel held in common and dividing
the proceeds of the sale among the co-owners. The
agreement is not void for it upholds the concept which the law
upholds forbidding a co-owner from being obliged to remain a
party to the community. (Tuason v. Tuason)

7. To exercise legal redemption (Article 1620,
1623)


Article 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other co-owners or of
any of them, are sold to a third person. If the price of the
alienation is grossly excessive, the redemptioner shall pay only
a reasonable one.

Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share
they may respectively have in the thing owned in common.


Article 1623. The right of legal pre-emption or redemption shall
not be exercised except within thirty days from the notice in
writing by the prospective vendor, or by the vendor, as the
case may be. The deed of sale shall not be recorded in the
Registry of Property, unless accompanied by an affidavit of
the vendor that he has given written notice thereof to all
possible redemptioners.

The right of redemption of co-owners excludes that of
adjoining owners.


What is redemption?
Act of reclaiming possession of something by payment of a
specific price

Rules:
Period: 30 days from the date of written notification of sale by
co-owner vendor
Without such written notice, the 30-day
period does not start to run

Exceptions:
Estoppel by laches (inaction)
If there is oral notification and
several years have passed
(implied waiver) and there is

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reliance on the non-action of co-
owners
Estoppel by silence

When there is duty to speak




Written notification must come from the prospective vendor
Vendor is in a better position to know things
involving the property and the sale
The prospective vendee may not see eye-to-eye with
the co-owners since they may have a different way
of enjoying things/the property

Cases:
Dad die, left a lot to his wife and 2 daughters. One of the
daughters redeemed the lot after it was foreclosed. She also
sold the entire property after. When the other sister learned
of it, she filed a complaint for recovery.

Redemption of the property by a co-owner does not vest him
sole ownership over said property. Redemption will inure to
the benefit of all co-owners. Redemption is not a mode of
termination of relationship. The only time there could have
been a consolidation of ownership is when none of the heirs
were able to redeem it within the 1-year period, the bank
consolidated the ownership of the property, and one of the
heirs bought the land from the bank, in which case the one
who bought shall have sole ownership of the property.
(Mariano v. CA)
www
A widow remarried and then died intestate. One of her
children (David) in her 2nd marriage died intestate too. One of
her children from the first marriage sold to Verdad their
interest in a lot left by widow. The wife of David found out
that there was a sale and sought to redeem the property 5
years later.

Wife has a right over the property left by widow because she
is a forced heir of David (hence an undivided interest was
passed on to her), who had interest over his mums intestate
estate. The right of redemption was also timely since at the
time she filed the case, there was no written notice of the sale
given to her. The 30-day period was yet to commence. A
written notice of sale is mandatory in order to remove all
uncertainties about the sale, its terms and conditions and its
efficacy and status. (Verdad v. CA)

8. To ask for partition (Article 494)


Article 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned.

Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which
shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by


law.

No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.


For as long as the co-ownership exists, anyone of the co-
owners can ask for partition, or as to any co-owner, the action
for partition is imprescriptible.

Effect of partition: termination of the co-ownership

What is it?
Division between the persons of real/personal property which
they own in common so that each may enjoy and possess his
sole estate to the exclusion of and without interference from
the others

Right to ask for partition at anytime except:
1) There is a stipulation against it (not over ten years)
2) When condition of indivision is imposed by
transferor/donor/testator (not to exceed 20 years)
3) The legal nature of community prevents partition (i.e.
party wall)
4) When partition is generally prohibited by law (i.e. ACP,
party wall)
5) When the partition would render the thing unserviceable
or the thing held in common is essentially indivisible
if the thing cannot be physically partitioned,
they may sell the thing and the co-owners may
divide the proceeds)
6) When acquisitive prescription has set in in favor of a
stranger to con-ownership or in favor of a co-owner

Cases:
Ramirez brought an action for partition. Some of the co-
owners objected because they figured it would be detrimental
to them.

If there is an allegation that a physical division of the property
will cause inestimatable damage to the interest of the co-
owners, evidence must be produced to support it. (Ramirez v.
Ramirez)
www
Two brothers bought a house in Paranaque. Though 1 of them
(V) shelled out 2/3 and the other (S) only 1/3 of the amount,
they agreed by a memo to equal ownership later on. The deed
of sale and title was in Ss name. After the dad died, V
demanded that S vacate the place, that the house be sold and
that he be given 2/3 of the proceeds. S wanted equal division
of the proceeds being a co-owner.

Either one may demand that the house be sold and at any time
and the other may not object. Thereafter the proceeds must
be divided equally according to their respective interests.
(Aguilar v. CA)
www
(Note: Viudas name here is Maria Ondoy) Ape owned a piece
of land which passed on to his wife and 11 kids upon his death.

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One of the kids allegedly sold his share, and now the buyers
are asking for specific performance (deed of sale). Kid denied
this, and the co-owners are trying to redeem the share.

The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing
by the prospective vendor, or by the vendor, as the case may
be. The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible
redemptioners.

The reasons for requiring that the notice should be given by
the seller, and not by the buyer, are easily divined. The seller
of an undivided interest is in the best position to know who
are his co-owners that under the law must be notified of the
sale. Also, the notice by the seller removes all doubts as to
fact of the sale, its perfection; and its validity, the notice being
a reaffirmation thereof, so that the party notified need not
entertain doubt that the seller may still contest the alienation.
This assurance would not exist if the notice should be given by
the buyer.

Note: In this case, the records are bereft of any indication that
Fortunato (the kid who allegedly sold his share) was given any
written notice of prospective or consummated sale. The thirty
(30)-day redemption period under the law, therefore, has not
commenced to run.

Despite this, however, the SC ruled that co-owners could no
longer invoke their right to redeem for the exercise of this
right presupposes the existence of a co-ownership at the
time the conveyance is made by a co-owner and when it is
demanded by the other co-owner or co-owners. The regime
of co-ownership exists when ownership of an undivided thing
or right belongs to different persons. By the nature of a co-
ownership, a co-owner cannot point to specific portion of the
property owned in common as his own because his share
therein remains intangible. As legal redemption is intended to
minimize co-ownership, once the property is subdivided and
distributed among the co-owners, the community ceases to
exist and there is no more reason to sustain any right of legal
redemption. (Vda. De Ape v. CA)

9. Other cases where right of legal redemption is
given (Article 1621, 1622)


Article 1621. The owners of adjoining lands shall also have the
right of redemption when a piece of rural land, the area of
which does not exceed one hectare, is alienated, unless the
grantee does not own any rural land.

This right is not applicable to adjacent lands which are
separated by brooks, drains, ravines, roads and other apparent
servitudes for the benefit of other estates.

If two or more adjoining owners desire to exercise the right of
redemption at the same time, the owner of the adjoining land
of smaller area shall be preferred; and should both lands have

the same area, the one who first requested the redemption.
(1523a)


Article 1622. Whenever a piece of urban land which is so small
and so situated that a major portion thereof cannot be used
for any practical purpose within a reasonable time, having
been bought merely for speculation, is about to be re-sold, the
owner of any adjoining land has a right of pre-emption at a
reasonable price.

If the re-sale has been perfected, the owner of the adjoining
land shall have a right of redemption, also at a reasonable
price.

When two or more owners of adjoining lands wish to exercise
the right of pre-emption or redemption, the owner whose
intended use of the land in question appears best justified
shall be preferred.


Cases:
American guy died and left some properties to his widow and
son. The widow assigned all her rights to her son. The son sold
them to a Filipino citizen. Halili, isang pakielamerong
kapitbahay, questioned the transfers of property and claimed
ownership on right of legal redemption.

Halili cannot redeem since Article 1621 only applies to rural
lands. The subject land in this case was clearly urban. Art 1621,
the land sought to be redeemed and the adjacent land
belonging to the person exercising the right of redemption
must be rural. If one or both is urban, right cannot be invoked.
(Halili v. CA)
www
Francisco and her 3 sisters co-owned a land on which a
commercial building stood on. They sold 1/5 of their undivided
interest over the land to their mother, so mum became a co-
owner. Without their knowledge, mum sold her share to
Boiser. Boiser then sent a summons and a complaint claiming
her share on the rentals collected by Francisco and her sisters.
In turn, Francisco informed Bosier that she was exercising her
right of redemption as co-owner. Bosier contended that the
30-day period has lapsed because she informed Francisco of
the claim on a May, Francisco only tried to redeem on an
August.

For there to be sufficient compliance with the notice
requirement, the written notice must come from the vendor
or the prospective vendor, not from any other person. It is the
notification from the seller which can remove all doubts as to
the fact of the sale, its perfection and its validity. Hence,
Franciscos mother should have been the one to notify her,
not Bosier. (Francisco vs. Boiser)

G. Implications of co-owners right over his ideal share


1.

Rights of a Co-owner:
a.

To share in fruits and benefits

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b.

c.
d.

To alienate, mortgage, or encumber and


dispose his ideal share (but other co-owners
may exercise right of legal redemption within
30 days from notification of prospective co-
owner vendor)
To substitute another person in the
enjoyment of thing
To renounce part of his interest to reimburse
necessary expenses incurred by another co-
owner (Article 488)


Article 488. Each co-owner shall have a right to compel the
other co-owners to contribute to the expenses of preservation
of the thing or right owned in common and to the taxes. Any
one of the latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may be
equivalent to his share of the expenses and taxes. No such
waiver shall be made if it is prejudicial to the co-ownership.

2.

Effect of Transaction by each owner


a.
b.
c.

Limited to his share in the partition


Transferee does not acquire any specific portion
of the whole property until partition
Creditors of co-owners may intervene in the
partition to attack the same if it is prejudicial
(Article 499)


Article 499. The partition of a thing owned in common shall
not prejudice third persons, who shall retain the rights of
mortgage, servitude or any other real rights belonging to
them before the division was made. Personal rights pertaining
to third persons against the co-ownership shall also remain in
force, notwithstanding the partition.

Except: creditors cannot ask for rescission
even if not notified in the absence of fraud
(Article 497)

Article 497. The creditors or assignees of the co-owners may
take part in the division of the thing owned in common and
object to its being effected without their concurrence. But
they cannot impugn any partition already executed, unless
there has been fraud, or in case it was made notwithstanding
a formal opposition presented to prevent it, without prejudice
to the right of the debtor or assignor to maintain its validity.

Cases:
Sps. Espique had 5 heirs. Carvajal was occupying 2/5 of one of
Espiques lots he purchased such parts from 2 of the 5 heirs.
One of the lots Carvajal purchased is being claimed by
someone else who apparently bought the same from one of
the 5 kids. Sps. Espique wanted their land back.

Unless partition is effected, each heir cannot claim sole
ownership over a definite portion of the land and cannot
dispose of the same. Heirs become the undivided owner of the
whole estate each co-owner shall have full ownership if his
part even as to fruits and benefits. He may alienate, assign or
mortgage his share. The effect of such act shall be limited to

the portion allotted to him during partition. Until said partition


though, he cannot alienate a specific part of the estate. A co-
owner cannot adjudicate to himself a definite portion owned
in common until partition by agreement or by a judicial
decree. Until then, they can only sell their successional rights.
(Carvajal v. CA)
www
Flaviano the widower sold a portion of their conjugal lot to
Pamplona before the liquidation of the CPG and without the
consent of his co-heirs. The Pamplonas then built a house and
piggery over the area to which Flaviano pointed during the
sale. When Flaviano died, the other heirs demanded that
Pamplonas vacate the area.

Flavaiano has a right to sell the lot. As forced heir of his wife,
he was entitled to a/2 of the entire CPG, with only the other
half belonging to other heirs. They did hold the property as co-
owners. But since the area he sold was within the limits of his
share, he had the right to sell the same. There was partial
partition of the property when he sold the lot to the
Pamplonas. (Pamplona v. Moreto)
www
Brothers Castro leased to Atienza a fish pond co-owned by
them. One of the brothers and Atienza agreed to annul the
lease contract that same year. However, the widow of the
other brother did not want to sign the annulment document.

The signature of the widow was not essential to the validity of
the agreement cancelling the lease contract between the
brothers and Atienza. However, the effect of said agreement
will be limited to the portion which may be allotted to the
agreeing brother in the division upon the termination of the
co-ownership. A co-owner may enter into a contract of lease
insofar as to his interest. He can also cancel the same without
the consent of the other co-owner. (Castro v. Atienza)
www
Parents died, left a parcel of land to 3 children. One of them
sold her rights to Estoque. The next day, the other 2 children
executed a deed of extrajudicial settlement wherein they
assigned all their rights to the selling kid. This area now (2/3 of
the lot) was sold by the assignee and her children to Pajimula.

What Estoque bought was a distinct portion and separate
from what Pajimula bought. She never acquired an undivided
interest over the lot and she never became a co-owner. What
was sold to her was a distinct share owned by the original
selling kid. It became distinct as soon as the extrajudicial
settlement was made. (Estoque v. Pajimula)
www
13 co-owners owned a lot. They all signed a deed of sale in
favor of Diversified credit. The husband of one of the 13
though built a house of the property even before the property
was partitioned. Diversified credit wanted them out, but they
contended that the house was conjugal property, hence
insofar as 1/13 of the sold lot was concerned, it was void. (Wife
had no right daw to alienate that share because its part of the
CPG)

No individual co-owner can claim title to any definite portion
of the land or thing owned in common until the partition

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thereof. It cannot be validly claimed that the house
constructed was on a land belonging to selling wife. All that
the co-owner has is an ideal, abstract or proportionate share in
the entire thing owned in common by all the co-owners. As
such, Diversify can shoo them away. (Diversified Credit v.
Rosario)
www
Widow mortgaged the entire CPG to PNB. This was not
annotated on the title. Eventually, the property was sold at
public auction for another obligation, and the Malacas sps
acquired the rights to these shares. They registered their title.
When the loan on PNB was not paid, the court issued a new
title over the property in favor of PNB. But this was annulled
by the CA.

After the death of her husband, widow became a co-owner of
the property with her children. She was only entitled to ,
hence she had no right to mortgage the whole property.
Assuming the mortgage to PNB was valid, it would only be for
of the estate. Such mortgage by a co-owner is limited only
to the portion which may be alloted to him in the division
upon the termination of the co-ownership. (PNB v. CA)

H. Rules on co-ownership not applicable to CPG or


ACP


These two regimes are governed by the provisions on the
Family Code
Even void marriages and cohabitation of
incapacitated persons are governed by Article 50,
147, and 148 of the Family Code

I.

Special Rules on Ownership of Different Stories of


a House as Differentiated from Provisions of the
Condominium Act


RA 4726. The Condominium Act

Sec. 1. The short title of this Act shall be "The Condominium
Act".

Sec. 2. A Condominium is an interest in real property consisting
of a separate interests in a unit in a residential, industrial or
commercial building or in an industrial estate and an undivided
interests in common, directly and indirectly, in the land, or the
appurtenant interest of their respective units in the common
areas.

The real right in condominium may be ownership or any
interest in real property recognized by law on property in the
Civil Code and other pertinent laws.

Sec. 3. As used in this Act, unless the context otherwise
requires:

a) "Condominium" means a condominium as defined in the
next preceding section.

b) "Unit" means a part of the condominium project intended

for any type of independent use or ownership, including one


or more rooms or spaces located in one or more floors (or
parts of floors) in a building or buildings and such accessories
as may be appended thereto: Provided, that in the case of an
industrial estate wherein the condominium project consists of
several buildings, plants and factories may, by themselves, be
considered separately as individual units as herein defined.

c) "Project" means the entire parcel of real property divided or
to be divided in condominiums, including all structures
thereon.

d) "Industrial Estate or Estate" means a certain tract of land
which is subdivided and developed primarily for industrial
purposes and which usually includes provisions for basic
infrastructure facilities and common services such as roads,
water, electricity, drainage and waste disposal system.

e) "Common areas" means the entire project except all units
separately granted or held or reserved.

f) "To divide" real property means to divide the ownership
thereof or other interests therein by conveying one or more
condominium therein but less than the whole thereof.

Sec. 4. The provisions of this Act shall apply to property
divided or to be divided into condominium only if there shall
be recorded in the Register of Deeds of the province or city in
which the property lies, and duly annotated in the
corresponding certificate of title of the land, if the latter had
been patented or registered under either the Land
Registration or Cadastral Acts, an enabling or master deed
which shall contain, among others, the following:

a) Description of the land on which the building or buildings
and improvements are to be located;

b) Description of the building or buildings, stating the number
of storeys and basement, the number of units and their
accessories, if any;

c) Description of the common areas and facilities;

d) A statement of the exact nature of the interest acquired or
to be acquired by the purchased in the separate units and the
common areas of the condominium projects. Where title to or
to appurtenant interests in the common areas is to be held by
a condominium corporation, a statement to this effect shall be
included;

e) A certificate of the registered owner of the property, if he is
other than those executing the master deed, as well as of all
registered holders of any lien or encumbrances on the
property, that they consent to the registration of the deed;

f) The following plans shall be appended to the deed as
integral parts thereof:

1. A survey plan of the land included in the project, unless a
survey plan of the same property had previously been filed in

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said office.
2. A diagrammatic floor plan of the building or buildings each
unit, its relative location and approximate dimensions.

g) Any reasonable restriction not contrary to law, morals, or
public policy regarding the right of any condominium owner to
alienate or dispose off his condominium.

h) The enabling or master deed may be amended or revoked
upon registration of an instrument executed by a simple
majority of the registered owners of the property: Provided,
That in a condominium project exclusively for either residential
or commercial use, simple majority shall be on a per unit of
ownership basis and that in the case of mixed use, simple
majority shall be on a floor area of ownership basis: Provided,
further, That prior notifications to all registered owners shall
be submitted to the Housing and Land Use Regulatory Board
and the city/municipal engineer for approval before it can be
registered. Until registration of a revocation, the provisions of
this Act shall continue to apply to such property.

Sec. 5. Any transfer or conveyance of a unit or an apartment,
office or store or other space therein, shall include the transfer
or conveyance of the undivided interest in the common areas
or in a proper case, the membership or share holdings in the
condominium corporation: Provided, however, That where the
common areas in the condominium project are held by the
owners of separate units as co-owners hereof, no
condominium unit therein shall be conveyed or transferred to
persons other than Filipino citizens or corporation at least 60%
of the capital stock of which belong to Filipino citizens, except
in cases of hereditary succession. Where the common areas in
a condominium project are held by a corporation, no transfer
or conveyance of a unit shall be valid if the concomitant
transfer of the appurtenant membership or stockholding in
the corporation will cause the alien interest in such
corporation to exceed the limits imposed by existing laws.

Sec. 6. Unless otherwise expressly provided in the enabling or
master deed or the declaration of restrictions, the incidents of
a condominium grant are as follows:

a) the boundary of the unit granted are the interior surfaces of
the perimeter walls, floors, ceiling, windows and doors
thereof: Provided, that in the case of an industrial estate
condominium projects, wherein whole buildings, plants or
factories may be considered as unit defined under section 3
(b) hereof, the boundary of a unit shall include the outer
surfaces of the perimeter walls of said buildings, plants or
factories. The following are not part of the unit: bearing walls,
columns, floors, roofs, foundations, and other common
structural elements of the buildings; lobbies, stairways, hall
ways and other areas of common use, elevator equipment and
shafts, central heating, central refrigeration and central air
conditioning equipment, reservoir, tanks, pumps and other
central services and facilities, pipes, ducts, flues, chutes,
conduits wires and other utility installations, wherever
located, except the outlets thereof when located within the
unit.

b) There shall pass with the unit, as an appurtenant thereof, an


exclusive casement for the use of the air space encompasses
by the boundaries of the unit as it exists at any particular time
and as the unit may lawfully be altered or reconstructed from
time to time. Such easement shall be automatically terminated
in any air space upon destruction of the units as to render it
untenantable.

c) Unless otherwise provided, the common areas are held in
common by the holders of units, in equal share one for each
unit.

d) A non-exclusive easement for ingress, egress and support
through the common areas in appurtenant to each unit and
the common areas are subject to such easement.

e) Each condominium owner shall have the exclusive right to
paint, repaint, tile, wax, paper or otherwise refinish and
decorate the inner surfaces of the walls, ceilings, floors,
windows and doors hounding his own unit: provided, that in
the case of an industrial estate condominium unit, such right
may be exercised over the external surfaces of the said unit.

f) Each condominium owner shall have the exclusive right to
mortgage, pledge or encumber his condominium and to have
the same appraised independently of the other condominium
owner.

g) Each condominium owner has also the absolute right to sell
or dispose of his condominium unless the master deed
contains a requirements that the property be first offered to
the condominium owners within a reasonable period of time
before the same is offered to outside parties;

Sec. 7. Except as provided in the following section, the
common areas shall remain undivided, and there shall be no
judicial partition thereof.

Sec. 8. Where several persons own condominium in a
condominium project, an action may be brought by one or
more such person for partition thereof, by sale of the entire
project, as if the owners of all the condominium in such
project were co-owners of the entire project in the same
proportion as their interests in the common areas: Provided,
however, that a partition shall be made only upon a showing:

a) That three years after damage or destruction to the project
which renders a material part thereof unfit for its use prior
thereto, the project had not been rebuilt or repaired
substantially to its state prior to its damage or destruction; or

b) That damage or destruction to the project has rendered
one half or more of the units therein untenantable and that
condominium owners holding in aggregate more than 30
percent interest in the common areas are opposed to the
repair or restoration of the projects; or

c) That project has been in existence in excess of 50 years,
that it is obsolete and uneconomical, and that condominium
owners holding in aggregate more than 50 percent interest in

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the common areas are opposed to repair or restoration or
remodeling or modernizing of the project; or

d) That the project or a material part thereof has been
condemned or expropriated and that the project is no longer
viable, or that the condominium owners holding in aggregate
more than 70 percent interest in the common areas are
opposed to the continuation of the condominium regime after
expropriation or condemnation of a material proportion
thereof; or

e) That the condition for such partition by sale set forth in the
declaration of restrictions duly registered in accordance with
the terms of this Act, have been met.

Sec. 9. The owner of a project shall, prior to the conveyance
of any condominium therein, register a declaration or
restrictions, relating to such project, which restrictions shall
ensure to a bind all condominium owners in the project, such
liens, unless otherwise provided, may be enforced by any
condominium owner in the project or by the management
body of such project. The Register of Deeds shall enter and
annotate the declaration of restrictions, upon the Certificate
of Title covering the land included within the proper, if the
land is patented or registered under the Land Registration or
Cadastral Acts.
Such declaration of restrictions, among the other things, may
also provide:

a) As to management body

1. For the power thereof, including power to enforce the
provisions of the declarations of restrictions;

2. For the maintenance of insurance policies insuring
condominium owners against loss by the, casualty, liability,
workmen's compensation and other insurable risks and for
bonding of the members of any management body;

3. Provisions for maintenance, utility, gardening and other
services benefiting the common areas for the operations of
the building, and legal, accounting and other professional and
technical services;

4. For purchase of materials, supplies and the like needed by
the common areas;

5. For payment of taxes and special assessment which would
be a lien upon the entire project or common areas, for
discharge of my encumbrance levied against the entire project
of the common areas;

6. The manner for delegation of its powers;

7. For reconstruction of any portion or portions of any
damage to or destruction of the project;

8. For entry by its officers and agents into any unit when
necessary in connection with the maintenance or construction
for which such body is responsible;

9. For a power of attorney to the management body to sell


the entire project for the benefit of all of the owners thereof
when partition of the project may be authorized under Section
8 of this Act, which said power shall be binding upon all of the
condominium owners regardless or whether they assume the
obligations of the restrictions or not.

b) The manner and procedure for amending such restrictions,
provided, that the vote of not less than a majority in interest
of the owners is obtained;

c) For independent audit of the accounts of the management
body;

d) For reasonable assessments to meet authorized
expenditures, each condominium unit to be assessed
separately for its share of such expenses in proportion (unless
otherwise provided) to its owner's fractional interest in any
common areas;

e) For the subordination of the liens securing such
assessments to other lien either generally or specifically
described;

f) For conditions, other than those provided for in Sections 8
and 13 of this Act, upon which partition of the project and
dissolution of the condominium corporation may be made.
Such right to partition or dissolution may be conditioned upon
failure of the condominium owners to rebuild within a certain
period or upon specified percentage of damage to the
building, or upon a decision of an arbitration, or upon any
other reasonable condition.

Sec. 10. Whenever the common areas in a condominium
project are held by a condominium corporation, such
corporation shall constitute the management body of the
project. The corporate purposes of such a corporation shall be
limited to the holding of the common areas; either the
ownership of any other interest in real property recognized by
the law, to the management of the project, and to such other
purposes as maybe necessary, incidental or convenient to the
accomplishment of said purposes. The articles of
incorporation or by laws of the corporation shall not contain
any provision contrary to or inconsistent with the provision of
this Act, the enabling or master deed, or the declaration of
restrictions of the project, membership in a condominium
corporation regarding of whether it is stock or non-stock
corporation, shall not be transferable separately from the
condominium unit of which it is an appurtenance. When a
member or a stockholder ceases to own a unit in the project in
which the condominium corporation owns or holds the
common area, he shall automatically cease to be a member or
stockholder of the condominium corporation.

Sec. 11. The registration and regulation of a condominium
corporation shall be vested with the Housing And Land Use
Regulatory Board (HLURB) and the term of the said
corporation shall be coterminous with the duration of the
subdivision projects, the provision of the corporation law to
the contrary notwithstanding.

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Sec. 12. The dissolution of the condominium corporation in
any manner and any of the causes provided by law shall be
governed by the provisions of the Title XIV of the Corporation
Code.

Sec. 13. Until the enabling or the master deed of the project in
which the condominium corporation owns or holds the
common areas is revoked the corporation shall not be
voluntarily dissolved through an action for dissolution under
Rule 104 of the Rules of Court except upon a showing:

a) The three years after damage or destruction to the project
in which damage or destruction renders a materials part
thereof unfit for its use prior thereto, the project has not been
rebuilt or repaired substantially to its state prior to its damage
or destruction; or

b) The damage or destruction to the project has rendered one
half or more of the units therein untenantable and that more
than 30 percent of the member of the corporation entitled to
vote, if a stock corporation, are opposed to the repair or
reconstruction of the project; or

c) That the project has been in existence excess of 50 years,
that it is obsolete and uneconomical and that more than 50
percent of the members of the corporation if non-stock or
stockholders representing more than 50 percent of the capital
stock entitled to vote, if a stock corporation, are opposed to
the repair or restoration or remodeling or modernizing of the
project; or

d) That project or material part thereof has been condemned
or expropriated and that the project is no longer viable or that
the members holding in aggregate more than 70 percent
interest in the corporation if non-stock, or the stockholders
representing more than 70 percent of the capital stock
entitled to vote, if a stock corporation, are opposed to the
continuation of the condominium regime after expropriation
or condemnation of a material portion thereof; or

e) That the conditions for such a dissolution set forth in the
declaration of restrictions of the project in which the
corporation, are opposed to the continuation of the
condominium regime after expropriation or condemnation of
a material portion thereof; or

Sec. 14. The condominium corporation may also be dissolved
by the affirmative vote of all the stockholders or members
thereof at a general or special meeting duly called for such
purpose: Provided, that all the requirements of Section 62 of
the Corporation Law are complied with.

Sec. 15. Unless otherwise provided for in the declaration of
restrictions, upon voluntary dissolution of a condominium
corporation in accordance with the provisions of Sections 13
and 14 of this Act, the corporation shall be deemed to hold a
power of attorney from all the members or stockholders to
sell and dispose of their separate interests in the project and
liquidation of the corporations shall be affected by a sale of

the entire project as if the corporation owned the whole


thereof, subject to the rights of the corporation and of
individual condominium creditors.

Sec. 16. A condominium corporation shall not, during its
existence, sell, exchange, lease or otherwise dispose of the
common areas owned or held by it in the condominium
project unless authorized by the affirmative vote of a simple
majority of the registered owners: provided, that prior
notification to all registered owners are done and provided
further, that the condominium corporation may expand or
integrate the project with another upon the affirmative vote
of a simple majority of the registered owners, subject only to
the final approval of the HLURB.

Sec. 17. Any provisions of the Corporation Law to the contrary
not withstanding, the by-laws of a condominium corporation
shall provide. That a stockholder or member shall not be
entitled to demand payment of his shares or interest in those
cases where such right is granted under the Corporation Law
unless the consents to sell his separate interest in the project
to the corporation or to any purchaser of the corporation's
choice who shall also buy from the corporation the dissenting
member or stockholder's interest. In case of disagreement as
to price, the procedure set forth in the appropriate provisions
of the Corporation Law for valuation of shares shall be
allowed. The corporation shall have two years within which to
pay for the shares or furnish a purchaser of its choice from the
time of award. All expenses incurred in the liquidation of
interest of the dissenting member or stockholder shall be
borne by him.

Sec. 18. Upon registration of an instrument conveying a
condominium, the Register of Deed shall, upon payment of
the proper fees, enter and annotate the conveyance on the
certificate of title covering the land included within the project
and the transferee shall be entitled to the issuance of a
"condominium owners" copy of the pertinent portion of such
certificate of title. Said "Condominium Owner's" copy need
not reproduce the ownership status of other condominium in
the project. A copy of the description of land, a brief
description of condominium conveyed, name and personal
circumstances of the condominium owner would be sufficient
for purposes of the "condominium owners" copy of the
certificate of title. No conveyance of condominium or part
thereof, subsequent to the original conveyance thereof from
the owner of the project, shall be registered unless
accompanied by a certificate of the management body of the
project that such conveyance is in accordance with the
provisions of the declaration of restrictions of such project.

In case of condominium project registered under the
provisions of the Spanish Mortgage Law or Act 3344 as
amended, the registration of the deed of conveyance of a
condominium shall be sufficient if the Register of Deed shall
keep the original or signed copy thereof, together with the
certificate of the management body of the project, and return
a copy of the deed of conveyance to the condominium owner
duly acknowledged and stamped by the Register of Deeds in
the same manner as in the case of registration of conveyance

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is in accordance with the provisions of the declaration of
restrictions of such project.

Sec. 19. Where the enabling or master deed provides that the
land included within a condominium project are to be owned
in common by the condominium owners therein the Register
of Deeds may at the request of all the condominium owner
and upon surrender of all their condominium owner's copies,
cancel the certificate of title of the property and issue a new
one in the name of said condominium owners as pro-indiviso
co-owners thereof.

Sec. 20. The assessment upon any condominium made in
accordance with a duly registered declaration of restrictions
shall be an obligation of the owner thereof at the time the
assessment is made. The amount of any such assessment plus
any other charges thereon, such as interest, costs (including
attorney's fee) and penalties, as such may be provided for in
the declaration of restrictions, shall be and become a lien upon
the condominium to be registered with the Register of Deed
of the City or province where such condominium project is
located. The notice shall state the amount of such assessment
and such other charges thereon as may be authorized by the
declaration of restrictions, a description of condominium unit
against which same has been assessed, and the name of the
registered owner thereof. Such notice shall be signed by an
authorized representative of the management body or as
otherwise provided in the declaration of restrictions. Upon
payment of said assessment and charges of other satisfaction
thereof, the management body shall cause to be registered a
released of the lien.

Such lien shall be superior to all other liens registered
subsequent to the registration of said notice of assessment
except real property tax liens and except that the declaration
of restrictions may provide for the subordination thereof to
any other liens and encumbrances, such liens may be enforced
in the same manner provided for by law for the judicial or
extra-judicial foreclosure of mortgage or real property. Unless
otherwise provided for in the declaration of the restrictions,
the management body shall have power to bid at foreclosure
sale. The condominium owner shall have the right of
redemption as in cases of judicial or extra-judicial foreclosure
of mortgages.

Sec. 21. No labor performed or services or materials furnished
without the consent of or at the required of a condominium
owner or his agent or his contractor or sub-contractor, shall be
the basis of a lien against the condominium of any other
condominium owner, unless such other owner have expressly
consented to or requested the performance of such labor or
furnishing of such materials or services. Such express consent
shall be deemed to have given by the owner of any
condominium in the case of emergency repairs of his
condominium unit. Labor performed or services or materials
furnished for the common areas, if duly authorized by the
management body provided for in a declaration of restriction
governing the property, shall be deemed to be approved by
the condominium owner. The owner of any condominium may
remove his condominium from a lien against two of the lien of

the fraction of the total sum secured by such lien which is


attributable to his condominium unit.

Sec. 22. Unless otherwise provided for by the declaration of
restrictions, the management body, provided for herein, may
acquire and hold, for the benefit of the condominium owners,
tangible personal property and may dispose of the same by
sale or otherwise, and the beneficial interest in such personal
property shall be owned by the condominium owners in the
same proportion as their respective interests in the common
areas. A transfer of a condominium shall transfer to the
transferee ownership of the transferor's beneficial interest in
such personal property.

Sec. 23. Where, in an action for partition of a condominium
corporation on the ground that the project or a material part
thereof has been condemned or expropriated, the court finds
that the condition provided in this Act or in the declaration
have not been met, the court may decree a reorganization of
the project declaring which portion or portions of the project
shall continue as a condominium project, the owners thereof,
and the respective rights of the remaining owners and the just
compensation, if any, that a condominium owner may be
entitled to due to deprivation of his property. Upon receipt of
a copy of the decree, the Register of Deeds shall enter and
annotate the same on the pertinent certificate of title.

Sec. 24. Any deed declaration or plan for a condominium
project shall be liberally construed to facilitate the operation
of the project, and its provisions shall be presumed to be
independent and several.

Sec. 25. The building and design standards for condominium
projects to be promulgated by HLURB shall provide for,
among others, accessibility features for disabled persons
pursuant to Batas Pambansa Bilang 344 of 1994.

Sec. 26. Whenever real property has been divided into
condominiums, each condominium separately owned shall be
separately assessed, for purposes of real property taxation
and other tax purposes, to the owners thereof and tax on
each such condominium shall constitute a lien solely thereon.

Sec. 27. All acts or parts of Acts in conflict on inconsistent with
this Act are hereby amended insofar as condominium and its
incidents are concerned.

Concept of Condominium: interest in a specific unit and an
undivided interest in common areas

The two interests must go hand-in-hand

Separate interest in: a unit in a residential, industrial or
commercial building

Undivided interest in common: directly or indirectly in the land
on which it is located and in other common areas of the
building

Note: The condominium law effectively separates the building
from the land (by a master deed)

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Building is deemed an accessory

Amendments: co-ownership in common areas means shared
expenses in these areas

Sec 4: simple majority of the property
Sec 16: common areas may be disposed by
affirmative vote of a simple majority of the
registered owners

What does the Housing and Land Use Regulatory Board do?

They hear the complaints of buyers

Important documents in Condo Ownership:
1) deed of sale
2) master deed
3) declaration of restrictions: pertains to how common
areas will be governed and who will do the governing
i.e. how to contribute to common area expenses:
contribution to maintenance, upkeep, repair of
common areas included
there is an Assessment, which is a lien upon the
condo unit


Case:
Not every purchaser of a condo unit is a shareholder of the
condo corporation
The Master deed determines when shareholding will
be transferred to the buyer in this case, there was a
contract to sell, in which case there had to be full
payment before ownership can be transferred

Upon transfer of ownership, the purchaser of the
condo becomes a shareholder of the condo
corporation.

A separate interest in the condominium entitles
the holder to become automatically a share holder in
the condominium corporation (Sec 2 of the
Condominium Act) (Sunset View Condo v. Judge
Campos)

J.

Extinguishment of Co-ownership
1. Total Destruction of Thing or loss of the
Property-Co-owned


Is there still co-ownership if a building is destroyed?
Yes, over the land and the debris.

2.

Merger of all interests in one person


What: consolidation in only one of the co-owners of all the
interests of the others

3.

Acquisitive Presciption

By whom:
1) A third person (Art 1106)
2) A co-owner against the other co-owners


Requisites:
1) Unequivocal acts of repudiation of the rights of the other
co-owners (you oust the other co-owners)
must be shown by clear and convincing
evidence
must be within the knowledge of the other
co-owners
must not be a mere refusal to recognize
the others as co-owners

2) Open and adverse possession


not mere silent possession
Note: there is a presumption that possession of a co-
owner is not adverse
Prescription only arises and produces all
effects when the acts are clearly meant
to oust the rights of the other co-owners

Case:
Fabian the dad died intestate and was survived by 4 kids. One
of his grandkids, de Gaban, survived him too. Capitle is a kid of
another one of Fabians kids, meaning pet. and res. are
cousins. But! Apparently, Fabian had two wives, so the mums
of the two brothers from whom the kids filing this case came
from were different. Now they are having problems dividing
the property Fabian owned.

The Spanish Civil Code applies to the issue of inheritance since
Fabian died way before the NCC. The line of the petitioners
(Capitle) is illegitimate. Assuming arguendo that they were
legitimate and, therefore, were co-owners of the property:
From the moment co-owner Julian occupied in 1919 and
claimed to be the absolute and exclusive owner of the
property and denied his brothers any share therein up to the
time of his death in 1950, the question involved is no longer
one of partition but of ownership in which case
imprescriptibility of the action for partition can no longer be
invoked. The adverse possession by Julian and his successors-
in-interest- herein respondents as exclusive owner of the
property having entailed a period of about 67 years at the time
of the filing of the case at bar in 1986, ownership by
prescription had vested in them. (Capitle v. De Gaban)


4.

Partition or Division


Of what: respective individed shares of the co-owners

a.

Right to ask for partition at anytime


except:
i.

ii.
iii.
iv.

When there is a stipulation against it (not


over ten years)
When condition of indivision is imposed by
transferor/donor/testator (not to exceed
20 years)
When the legal nature of community
prevents partition (i.e. party wall)
When partition is generally prohibited by
law (i.e. ACP, party wall)

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v.

1)

When the partition would render the thing


unserviceable or the thing held in common
is essentially indivisible
If the thing cannot be physically
partitioned, they may sell the thing and the
co-owners may divide the proceeds)
when acquisitive prescription has set in in favor of a
stranger to con-ownership or in favor of a co-owner

b.

Effects of Partition


1)
2)
3)
4)
5)

confers upon each heir the exclusive ownership of the


property adjudicated to him
co-heirs shall be reciprocally bound to warrant the title to
and the quality of each property adjudicated
reciprocal obligation of warranty shall be proportionate
to the respective hereditary shares of co-heirs
an action to enforce warranty must be brought within 10
years from the date the right accrues
the co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate

c.

Right of creditors of individual co-owners

d.

Procedure for Partition:



How: agreement by parties or judicial decree

Form: oral or written (statute of Frauds does not operate here
because it is not a conveyance of property but a mere
segregation or designation of which parts belong to whom)
Rules of Court: does not preclude agreements or settlements

Action for Partition:
WON the plaintiff is indeed a co-owner of the property
HOW will the property be divided between the plaintiff and
defendant.

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Part 6. Possession

A. Definition and Concept



Article 523. Possession is the holding of a thing or the
enjoyment of a right.

Concept of Possession:
To possess means to have, to physically and actually occupy a
thing, with or without right. (Sanchez Roman)

It is the holding of a thing or a right, whether by material
occupation or by the fact that the thing or the right is
subjected to the action of our will. (Manresa)

It is an independent right apart from ownership.

Right of Possession
Right to possess
(jus possessionis)
(jus possidendi)
Independent right
Incident to ownership

Possession includes the idea of occupation. It cannot exist
without it. (Exceptions: Art 537)

Essential Requisites of Possession:
1) Holding or control of a thing or right (corpus) consists of
either
a) The material or physical holding or occupation either
b) Exercise of a right
c) Constructive possession (intention to possess is very
crucial)

General Rule: Possession and cultivation of a portion of a tract
under claim of ownership of all is a constructive possession of
all, if the remainder is not in adverse possession of another.

Doctrine of constructive possession applies when the
possession is under title calling for the whole. It does not
apply where possession is without title.

Cases:
Ramos instituted proceedings to have his title registered.
Director of Lands filed an opposition to register on the ground
that he has not acquired a good title, because he has only
cultivated of the land.

Possession in the eyes of law does not mean that a man has to
have his feet on every square meter of the ground before it
can be said that he is in possession. The general rule is that the
possession and cultivation of a tract of land under a claim of
ownership of all, is a constructive possession of all, if the
remainder is not in adverse possession of another.
(Ramos v. Director of Lands)
www
A land was occupied by 40 tenants during the Spanish regime.
They were granted homestead applications. Years after, the
heirs filed for registration of the land in their names.

The heirs have no right to the registration of the land. The rule
on constructive possession does not apply because the major
portion of the land is in the adverse possession of the
homesteaders and the heirs. It is still part of public domain
until the patents are issued. (Director v. CA)

2) Intention to possess (animus possidendi)

Animus possidendi may be contradicted and rebutted by
evidence to prove that the person who is in possession, does
not in fact exercise power or control and does not intend to
do so.

B. Degrees of Holding Possession



1.

Mere holding or possession without title whatsoever


and in violation of the right of the owner, e.g.
possession of a thief or usurper of land

2. Possession with juridical title but not that of
ownership, e.g. possession of a tenant, depository
agent, bailee trustee, lessee, antichretic creditor.
This degree of possession will never ripen into full
ownership as long as there is no repudiation of
concept under which property is held.

3. Possession with just title or title sufficient to transfer
ownership, but not from the true owner e.g.
possession of a vendee from a vendor who pretends
to be the owner. This degree of possession ripens
into full ownership by lapse of time.

4. Possession by just title from the true owner. The
delivery of possession transfers ownership and
strictly speaking, is jus possidendi.

Principal aspect of possession is presumed ownership, by
virtue of a just title and continuous holding of a thing,

C.

Cases of Possession

1.

Possession for oneself, or possession


exercised in ones own name and possession in
the name of another.


Article 524. Possession may be exercised in one's own name
or in that of another.

Name under which possession may be exercised:
1) In ones own name the fact of possession and the right
to such possession is found in the same person.

2) In the name of another the one in actual possession is
without any right of his own, but is merely an instrument
of another in the exercise of the latters possession.

The rights of possession may be exercised through agents and
may either be necessary or voluntary.

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Article 526. He is deemed a possessor in good faith who is not
aware that there exists in his title or mode of acquisition any
flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any
case contrary to the foregoing.

Mistake upon a doubtful or difficult question of law may be
the basis of good faith.

Necessary when exercised in behalf of a conceived child, of
juridical persons, of persons not sui juris and of the conjugal
partnership, by their representatives.

Voluntary agents or administrators appointed by the owner
or possessor. Third person may also voluntary exercise
possession in the name of another, but it does not become
effective unless ratified by the person in whose name it is
exercised.

2.

Possession in the concept of an owner, and


possession in the concept of a holder with the
ownership belonging to another


Article 525. The possession of things or rights may be had in
one of two concepts: either in the concept of owner, or in that
of the holder of the thing or right to keep or enjoy it, the
ownership pertaining to another person.

Possession in Concept of Holder:
One who possesses as a mere holder, not in the concept of
owner, acknowledges in another a superior right which he
believes to be ownership, whether his belief be right or
wrong. E.g. tenant, usufructuary, borrower in commodatum.

Possession in Concept of Owner:
May be exercised by the owner himself or one who claims to
be so. When a person claims to be the owner of a thing,
whether he believes so or not, acting as an owner, and
performing acts of ownership, and he is or may be considered
as the owner by those who witness his exercise of proprietary
rights, then he is in the possessor of an owner. This is the kind
of possession that ripens into ownership under Article 540.

Effects of Possession in Concept of an Owner:
1) Converted into ownership by the lapse of time necessary
for prescription
2) Possessor can bring all actions necessary to protect his
possession, availing himself of any action which an owner
can bring, except accion revindicatoria which is
substituted by accion publiciana.
3) He can ask for the inscription of possession in the registry
of property
4) Upon recovering possession from one who has unlawfully
deprived him of it, he can demand fruits and damages
5) He can do on the thing possessed everything that the law
authorizes an owner to do; he can exercise the right of
pre-emption and is entitled to the indemnity in case of
appropriation.

3.

Possession in good faith and possession in bad


faith



Possessor in Good Faith is one who is unaware that there
exists a flaw which invalidates his acquisition of the thing.

Good Faith consists in the possessors belief that the person
from whom he received a thing was the owner of the same
and could convey his title.

An honest intention to abstain from taking any
unconscientious advantage of another and is the
opposite of fraud.

A state of mind and not visible or tangible fact that
can be touched; it can only be determined by
outward acts and proven conduct.

It implies freedom from knowledge and
circumstances which ought to put a person on
inquiry.

The belief of a possessor that he is the owner of the thing
must be based upon the title or mode of acquisition, such as a
sale, a donation, inheritance or other means of transmitting
ownership; for without this, there can be no real, well-
grounded belief of ones ownership.

Error in the application of the law, in the legal solutions that
arise from such application, in the appreciation of legal
consequence of certain acts, and in the interpretation of
doubtful provisions or doctrines, may properly serve as basis
for good faith.

A misconception of the law, no matter how honest cannot
have the effect of making one a possessor in good faith, when
he does not hold a title valid in form or a deed sufficient in
terms to transfer property.

Possessor in Bad Faith one who knows his title is defective

Only personal knowledge of the flaw in the title or mode of
acquisition can make him a possessor in bad faith for bad faith
is not transmissible from one person to another.

Case:
Jardinico bought lot no. 9 from Pleasantville and upon the
issuance of TCT in his name, he found out that Wilson Kee had
already taken possession of the lot and made improvements
thereon. Apaprently, Kee bought lot no. 8 and the lot that was
pointed to him as lot no.8 was actually lot no. 9. Kee was
unaware of the mix up.

Kee is a builder in GF. It was CITEI (the agent of Pleasantville)
that caused the mix up. Good faith consists in the belief of the
builder that the land he is building on is his and he is ignorant
on the defect or flaw in his title. At the time he built his
improvements on the lot, Kee honestly believed that the lot he

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was possessing was Lot no. 8. (Pleasantville Development
Corp. v. CA)

a. Mistake upon a doubtful or difficult


question of law as a basis of good faith


Mistake or ignorance of the law, by itself, cannot become the
basis of good faith. What makes the error or ignorance a basis
of good faith is the presence of an apparent doubt or
difficulty in the law. In other words, the law is complex,
ambiguous, or vague such that it is open to two or more
interpretations.

When the ignorance of the law is gross and inexcusable, as
when a person of average intelligence would know the law,
such ignorance cannot be the basis of good faith. Otherwise,
the intendment of Article 3 which states that, Ignorance of
the law excuses no one from compliance therewith, will be
defeated.

Case:
Ambrosio was issued a homestead patent. She entered two
agreements with Kasilag. The first, she mortgaged the
improvements of the land as a security for the loan, and
second, where she conveyed the possession of the land to
Kasilag subject to conditions. By virtue of the 2nd agreement,
Kasilag entered upon the land. Both of them were unaware
that the legal term for the contract that they entered into was
that of an antichresis. Ambrosio died and her heirs sought
recovery of the land.

Kasilag cannot be said to have acted in bad faith by taking
possession of the land as a consequence of the agreement, as
Ambrosio was prohibited from encumbering or alienating the
land for 5 years because of a homestead patent. A person is
deemed a possessor in BF when he knows there is a flaw in his
title or in the manner of acquisition by which it is invalidated.
Gross and inexcusable ignorance of the law may not be the
basis of GF, but possible, excusable ignorance may be the
basis. Kasilag is not a lawyer nor conversant in the law. He did
not know that the possession and taking of the fruitsa re the
attributes of a contract of antichresis, and is prohibited by the
homestead agreement. Thus, his ignorance is excusable and
may be the basis of good faith. (Kasilag v. Rodriguez)

D. What Things or Rights May be Possessed



Article 530. Only things and rights which are susceptible of
being appropriated may be the object of possession.

Not all things susceptible of appropriation can be the object of
prescription (See Article 1113)

E.

What may be possessed by private persons


1. Res Communes
1. Property of Public Dominion
2. Right under discontinuous and/or non-apparent
easement

F.

Acquisition of Possession

1.

Ways of acquiring possession


Article 531. Possession is acquired by the material occupation
of a thing or the exercise of a right, or by the fact that it is
subject to the action of our will, or by the proper acts and legal
formalities established for acquiring such right.

Essential Requisites the two must concur:
1) Corpus the material holding of the thing
2) Animus the intent to possess it

Animus is essential in possession. There is no possession if the
holder does not want to exercise the rights of a possessor.
Animus is implied from the acts of the possessor.

a.

Material Possession of the Thing


Occupation acquiring possession of things but not rights. It
is only possession of fact, not the legal right of possession.

Usurpation is not sanctioned as a method of
acquiring possession.

b.

Subjection to the action of our will


Material possession of the thing subjects it to the action of our
will. The action of our will must be juridical, in the sense that it
must be according to law.

i.

The
doctrine
possession

of

constructive


Considered as equivalent to material occupation in those cases
where such occupation is essential to the acquisition of
possession.

ii.

Includes constructive delivery



1.

Traditio brevi manu (thing already in


transferees hands, e.g. under a
contract of lease, then delivered under
a sale)


One who possesses a thing by title other than ownership,
continues to possess the same under a new title, that of
ownership.

2. Traditio constitutum possessorium
(thing remains in the transferors
hands, e.g. sale then retained under a
commodatum)

When the owner alienates the thing, but continues to possess
the same under a different title, such as a depositary, pledge
or tenant

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c.

Proper acts under legal formalities refers


to the acquisition of possession by sufficient
title, intervivos or mortis causa, lucrative or
onerous. Example : 1. Includes tradition longa
manu and tradition simbolica, donations,
succession (testate or intestate), contracts,
judicial writs of possession, writ if execution of
judgments, execution and registration of public
instruments.


Tradicion simbolica effected by delivering some object or
symbol or placing the thing under the control of the
transferee, such as the keys of the warehouse containing the
goods delivered

Tradicion longa manu Effected by the transferor by pointing
out to the transferee the things which are being transferred.

Case:
Reyes mortgaged to the bank several pieces of property and
pledged part of his property and the goods were delivered to
a depositary. Garcia (another creditor of Reyes) obtained a
favorable judgment against his property and requested the
sheriff to seize the goods in the warehouse.

The sheriff could not seize the goods as there was a perfected
contract of pledge and the depositary was placed in the
possession of the goods after the symbolic transfer by means
of delivery to him of the keys of the warehouse where the
goods are kept. (Banco Espanol Filipino v. Peterson)

2. By whom may possession be acquired

Article 532. Possession may be acquired by the same person
who is to enjoy it, by his legal representative, by his agent, or
by any person without any power whatever: but in the last
case, the possession shall not be considered as acquired until
the person in whose name the act of possession was executed
has ratified the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case.

a.

By the same person;


Elements of Personal Acquisition:
1) Must have the capacity to acquire possession
2) Must have the intent to possess
3) The possibility to acquire possession must be present.

b.

By his legal representative


Acquisition through Another
The representative or agent has the intention to acquire the
thing or exercise the right for another, and not for himself

That the person for whom the thing has been acquired or the
right exercised, has the intention of possessing such thing or
exercising such right

The most usual form of authority is that of agency which may


be special power or general authority.

Negotiorum Gestio when a person voluntarily manages the
affairs of another. Acquisition takes place when the person
represented learns of it and ratifies the possession in his
name. Such ratification retroacts to the time of the
apprehension by the gestor and possession of the former
must be deemed to have been acquired from that moment.

Article 534. On who succeeds by hereditary title shall not
suffer the consequences of the wrongful possession of the
decedent, if it is not shown that he was aware of the flaws
affecting it; but the effects of possession in good faith shall
not benefit him except from the date of the death of the
decedent.

Bad faith is personal and intransmissible. Its effects must be
therefore, be suffered only by the person who acted in bad
faith; his heir should not be saddled with the consequences

Good faith can only benefit the person who has it; and the
good faith of the heir cannot erase the effects of bad faith of
his predecessor.

c.

By his agent

d.

By any person without any power


whatsoever but subject to ratification,
without prejudice to proper case or
negotiorum gestio (Arts. 2144, 2i49, 2150)


Article 2144. Whoever voluntarily takes charge of the agency
or management of the business or property of another,
without any power from the latter, is obliged to continue the
same until the termination of the affair and its incidents, or to
require the person concerned to substitute him, if the owner is
in a position to do so. This juridical relation does not arise in
either of these instances:

(1) When the property or business is not neglected or
abandoned;

(2) If in fact the manager has been tacitly authorized by the
owner.

n the first case, the provisions of Articles 1317, 1403, No. 1, and
1404 regarding unauthorized contracts shall govern.
In the second case, the rules on agency in Title X of this Book
shall be applicable.


Article 2149. The ratification of the management by the owner
of the business produces the effects of an express agency,
even if the business may not have been successful.


Article 2150. Although the officious management may not
have been expressly ratified, the owner of the property or

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business who enjoys the advantages of the same shall be liable
for obligations incurred in his interest, and shall reimburse the
officious manager for the necessary and useful expenses and
for the damages which the latter may have suffered in the
performance of his duties.

The same obligation shall be incumbent upon him when the
management had for its purpose the prevention of an
imminent and manifest loss, although no benefit may have
been derived.

e.

Qualifiedly, minors and incapacitated


persons


Article 535. Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their
legal representatives in order to exercise the rights which
from the possession arise in their favor.

Incapacitated all those who do not have the capacity to act
(insane, lunatic, deaf-mutes who cannot read and write,
spendthrifts and those under civil interdiction)

Minors can acquire the possession of things and avail
themselves of this possession when they become of age, for
purposes of acquisitive prescription.

Possession of things and not possession of rights

Acquisition of possession by material occupation

Includes acquisition by any means for which the minor or
incapacitated person has the capacity

Succession, testate or intestate, donations propter nuptias, or
even pure and simple donations

3.

What do not affect possession


Article 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor of a
thing, or by violence, do not affect possession.

a.

Acts merely tolerated


Those which by reason of neighborliness or familiarity, the
owner of property allows his neighbor or another person to
do on the property;

Those particular services or benefits which ones property can
give to another without material injury or prejudice to the
owner, who permits them out of friendship or courtesy

Acts of little disturbances which a person, in the interest of
neighborliness or friendly relations permits others to do on his
property, although continued for a long time, no right will be
acquired by prescription

Case:
The children were invited by their parents to occupy the
latters 2 lots, out of parental love and family solidarity.
However, due to conflict, the parents asked them to vacate
the premises by filing an unlawful detainer against them.

When the parents invited the children to use the lots, no
period was intended by the parties. The agreement subsisted
as long as both parties benefitted. When the conflict arose,
the children no longer had any cause for continued possession
of the lots. It ceased upon the notice to vacate. (Mascaet v.
Mascaet)

b.

Acts executed clandestinely and without


the knowledge of the possessor


Possession must be public in order to be the basis for
prescription

Article 1118. Possession has to be in the concept of an owner,
public, peaceful and uninterrupted.

c.

Acts of violence as long as the possessor


objects thereto (i.e. he files a case)


Article 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing, must invoke
the aid of the competent court, if the holder should refuse to
deliver the thing.

Possession acquired by force, not only when one forcibly takes
away the property from another, but also when one occupied
the property in the property in the absence of another, and
repels the latter upon his return.

Force may be actual or threatened; and may be employed by
the possessor himself, or by another for him, and against any
possessor.

Effect on Possession:
Acts mentioned do not constitute true possession. They do
not interrupt the period of prescription nor affect the rights to
the fruits.

For all purposes that may be favorable to the true possessor,
his possession is not considered interrupted.

Cases:
The owner of a piece of land, in order to accommodate his
neighbors and the public, permitted them to cross his
property. A road was established for this purpose, kept in
repair by the owner and continued in use for 30-40 years until
the owner began to collect tolls for the passage of the carts.

The mere permissive use merely tolerated by the possessor
cannot affect possession and cannot be the basis of
acquisitive prescription. Possession to constitute the

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foundation of prescriptive right, must be possession under
claim of title, it must be adverse. (Cuaycong v. Benedicto)

In 1961, Mitra purchased Lot 16 of East Ave. Subdivision owned
by PHHC. The lot was in actual possession of Astudillo who has
a shanty there and has been squatting on the land since 1957.

She has no cause of action to impugn the award to Mitra and
to require that she be allowed to purchase the lot. As a
squatter, she has no possessory right over Lot 16. In the eyes
of law, the award to Mitra did not prejudice her, since she was
bereft of any rights over the lot. (Astudillo v. Board of Dir.
PHHC)
www
Evasco owned a lot which he partitioned among his 5 heirs.
Alejandro (one of the heirs) allowed his niece to erect a house
on the portion of the lot. When he asked her to vacate, she
refused.

Prior possession of the niece was only by mere tolerance and
therefore does not vest them any right which they can assert.
Possession by tolerance is lawful but this becomes illegal
when, upon demand to vacate by the owner, the possessor
refuses to comply with such demand. (Peran v. CFI)

4.

Rules to solve conflicts of possession


Article 538. Possession as a fact cannot be recognized at the
same time in two different personalities except in the cases of
co-possession. Should a question arise regarding the fact of
possession, the present possessor shall be preferred; if there
are two possessors, the one longer in possession; if the dates
of the possession are the same, the one who presents a title;
and if all these conditions are equal, the thing shall be placed
in judicial deposit pending determination of its possession or
ownership through proper proceedings.

General Rule: possession cannot be recognized in two
different personalities, except in cases of co-possession by co-
possessors without conflict of claims of interest.

In case of conflicting possession preference is given to:
a. Present possessor or actual possessor
b. In there are two or more possessors, the one longer
in possession
c. If the dates of possession are the same, the one who
presents a title
d. If all conditions are equal, the thing shall be placed in
judicial deposit pending determination of possession
or ownership through proper proceedings

G. Effects of Possession

1.

In general, every possessor has a right to be


respected in his possession; if disturbed
therein, possessor has a right to be protected
in or restored to said possession.


Article 539. Every possessor has a right to be respected in his

possession; and should he be disturbed therein he shall be


protected in or restored to said possession by the means
established by the laws and the Rules of Court.

A possessor deprived of his possession through forcible entry
may within ten days from the filing of the complaint present a
motion to secure from the competent court, in the action for
forcible entry, a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the
motion within thirty (30) days from the filing thereof.

Every possessor includes all kinds of possession, from that
of an owner to that of a mere holder, except that which
constitutes a crime.

Reason for rule: Prevent anyone from taking the
administration of justice into his own hands. Even the owner
cannot forcibly eject the possessor, but must resort to the
courts.

a.

Actions to recover possession


i.

Summary proceedings forcible entry and


unlawful detainer. Plaintiff may ask for writ
of preliminary mandatory injunction.


Within 10 days from filing of complaint in
forcible entry. (Article 539)

Forcible entry and Unlawful Detainer
Rule 70, Rules of Court gives any person deprived of the
possession of any land or building by force, intimidation,
strategy, or stealth at any time within one year after such
unlawful deprivation, the action of forcible entry.

by force, intimidation, strategy, or stealth
Includes every situation or condition under which one person
can wrongfully enter upon real property and exclude another,
who has had prior possession therefrom.
The same writ is available in unlawful detainer actions upon
appeal. (Arr. 1674)

Article 1674. In ejectment cases where an appeal is taken the
remedy granted in Article 539, second paragraph, shall also
apply, if the higher court is satisfied that the lessee's appeal is
frivolous or dilatory, or that the lessor's appeal is prima facie
meritorious. The period of ten days referred to in said article
shall be counted from the time the appeal is perfected.

Case:
Marcelo Steel Corp. sold 42 tons of scrap engine blocks to
Refuerzo (an alleged swindler), the latter sold it to the YU
spouses. The purchase was in GF. The court issued a warrant
for the seizure of said goods. The Yu spouses were petitioning
for the return of the engine blocks.

Yu can get the scrap engines back in the absence of any final
judgment in the estafa case as to the civil liability of Yu. The
acquirer and possessor in GF of a chattel or movable property
is entitled to be respected and protected in his possession as if
he were the true owner, until a competent court rules

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otherwise. Possession in GF is equivalent to a title and every
possessor has a right to be respected in his possession. (Yu v.
Honorad0)

ii. Accion publiciana (based on superior right
of possession, no ownership)

Action for the recovery of possession of real property upon
mere allegation and proof of a better title thereto

iii. Accion revindicatoria (recovery of
ownership), including right to possess

An action setting up title and right to possession

Not barred by a judgment in an action for forcible entry and
unlawful detainer

iv. Action for replevin (possession or
ownership for movable property)

b.

Lawful possessor can employ self-help


Article 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property

Article 540. Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring dominion.

To consolidate title by prescription, the possession must be
under claim of ownership, and it must be peaceful, public and
uninterrupted.

It is only the conviction of ownership externally manifested,
which generates ownership.

Acts of possessory character done by virtue of a license or
mere tolerance on the part of the real owner are not sufficient
and will not confer title by prescription or adverse possession.

The following cannot acquire title by prescription:
Lessees, trustees, pledges, tenants on shares or
planters and all those who hold in the name or
representation of another,

Or as mere holders placed in possession of the
property by the owner, such as agents, employees

And those holding in a fiduciary character, like
receivers, attorneys, depositaries and antichretic
creditors

Neither can a co-owner acquire the common
property by prescription against co-owners

Except: When he holds the same adversely


against all of them with notice to them the
exclusive claim of ownership

General Rule: Prescription does not run in favor of one who
holds trust for others.

Article 542. The possession of real property presumes that of
the movables therein, so long as it is not shown or proved that
they should be excluded.

Refers to all kinds of possession, whether in concept of owner
or not, in good faith or in bad faith, and in ones own name or
anothers in reference to things only, NOT rights.

Article 543. Each one of the participants of a thing possessed
in common shall be deemed to have exclusively possessed the
part which may be allotted to him upon the division thereof,
for the entire period during which the co-possession lasted.
Interruption in the possession of the whole or a part of a thing
possessed in common shall be to the prejudice of all the
possessors. However, in case of civil interruption, the Rules of
Court shall apply.

2.

Entitlement to fruits possessor in good


faith/bad faith (Arr. 544, 549)


Article 544. A possessor in good faith is entitled to the fruits
received before the possession is legally interrupted.

Natural and industrial fruits are considered received from the
time they are gathered or severed.

Civil fruits are deemed to accrue daily and belong to the
possessor in good faith in that proportion.

Provision is based on the following reasons of equity:
The fruits received are generally used for the
consumption and livelihood of the possessor, and his
life and expenses may have been regulated in view
of such fruits

The owner has been negligent in not discovering or
contesting the possession of the possessor; it would
be unjust after the possessor has been thus allowed
o rely on the efficacy of the title, to require him to
return the fruits he has received on the basis of that
title.

Between the owner who has abandoned his
property and left it unproductive and the possessor,
who has contributed to the social wealth, by the
fruits he has produced, the law leans toward the
latter.

Right of the possessor in good faith:
Only limited to the fruits of the thing. He must restore the
fruits received from the time such good faith ceased. He has
no rights to the objects which do not constitute fruits.

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Legal interruption of possession in good faith:
Takes place when an action is filed against him from the time
he learns of the complaint, from the time he is summoned to
the trial.

Article 545. If at the time the good faith ceases, there should
be any natural or industrial fruits, the possessor shall have a
right to a part of the expenses of cultivation, and to a part of
the net harvest, both in proportion to the time of the
possession.

The charges shall be divided on the same basis by the two
possessors.

The owner of the thing may, should he so desire, give the
possessor in good faith the right to finish the cultivation and
gathering of the growing fruits, as an indemnity for his part of
the expenses of cultivation and the net proceeds; the
possessor in good faith who for any reason whatever should
refuse to accept this concession, shall lose the right to be
indemnified in any other manner.

Old Civil Code
New Civil Code
Possessor in GF was
reimbursed the entire
Proportionate division of
expense of cultivation
expenses of production
incurred by him

Charges:
Those which are incurred, not on the thing itself but because
of it

Borne by the two possessors in proportion to their respective
possession

Include every presentation required of the possessor by
reason of possession of the thing, whether it constitutes a real
right or not.

E.g. Taxes, contributions in favor of the government

When fruits are insufficient There should only be
reimbursement of expenses; but each possessor should suffer
a proportionate reduction due to the insufficiency of the
harvest.

3.

Reimbursement for expenses possessor in


good/bad faith


Article 546. Necessary expenses shall be refunded to every
possessor; but only the possessor in good faith may retain the
thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in
good faith with the same right of retention, the person who
has defeated him in the possession having the option of
refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by reason
thereof.

Necessary Expenses

Imposed by the thing itself and have no relation to the desire


or purpose of the possessor; hence they are reimbursed,
whatever may be the juridical character of the person who
advanced them.

They are the cost of living for the thing and must be
reimbursed to the one who paid them, irrespective of GF or
BF. Only a possessor in GF is entitled to retain the thing until
he is reimbursed.

Those imposed for the preservation of the thing. They are not
considered improvements; they do not increase the value of
the thing, but merely prevent them from becoming useless.

Useful Expenses
Incurred to give greater utility or productivity to the thing
E.g. Wall surrounding an estate, an irrigation system,
planting in an uncultivated land, a fishpond, an
elevator in the building, electric lighting system

They are reimbursed only to the possessor in GF as a
compensation or reward for him. Possessor in BF cannot
recover such expenses

Article 547. If the useful improvements can be removed
without damage to the principal thing, the possessor in good
faith may remove them, unless the person who recovers the
possession exercises the option under paragraph 2 of the
preceding article.

Possessor in GF may remove the useful improvement if it can
be removed without damage to the principal thing, instead of
asking for reimbursement for the expenses incurred.

Possessor in BF cannot remove, even if he can do so.

Article 548. Expenses for pure luxury or mere pleasure shall
not be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
amount expended.

Expenses for Luxury
They do not affect the existence or the substance of the thing
itself, but only the comfort, convenience or enjoyment of the
possessor. They are not the subject of reimbursement,
because the law does not compensate personal whims or
caprices.
E.g. Opening of a garden, placing fountains and
statues in it, adorning the ceilings paintings, and the
walls with reliefs

Useful Expenses v. Expenses for Luxury:
Useful Expenses
Expenses for Luxury
Those which increase the
Those which merely
income derived from the
embellished the thing
thing
Result: Increase in the
Result: Benefit or advantage
products, either absolutely,
is only for the convenience of

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or because of greater
facilities for producing them

Includes expenses resulting
in real benefit or advantage
to the thing
The resulting utility is
essential and absolute, to all
who may have the thing.

definite possessors

The utility is for the possessor


or particular persons alone
and is therefore accidental.


Article 549. The possessor in bad faith shall reimburse the
fruits received and those which the legitimate possessor could
have received, and shall have a right only to the expenses
mentioned in paragraph 1 of Article 546 and in Article 443. The
expenses incurred in improvements for pure luxury or mere
pleasure shall not be refunded to the possessor in bad faith,
but he may remove the objects for which such expenses have
been incurred, provided that the thing suffers no injury
thereby, and that the lawful possessor does not prefer to
retain them by paying the value they may have at the time he
enters into possession.

Right of the possessor in bad faith
No right to receive any fruits. Those already gathered and
existing will have to be returned. Those lost consumed or
which could have been received, he must pay the value.
He does not have to pay interest on the value of the fruits he
has to pay because such amount is unliquidated.

Article 550. The costs of litigation over the property shall be
borne by every possessor.

Article 551. Improvements caused by nature or time shall
always insure to the benefit of the person who has succeeded
in recovering possession.

Includes all the natural accessions referred to by articles 457-
465, and all those which do not depend upon the will of the
possessor.
e.g. widening of the streets, rising of fountains of
fresh or mineral water, increase of foliage of trees

a.

Liability for loss or deterioration of


property by possessor in bad faith.


Article 552. A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases in
which it is proved that he has acted with fraudulent intent or
negligence, after the judicial summons.
A possessor in bad faith shall be liable for deterioration or loss
in every case, even if caused by a fortuitous event.

Possessor in GF No liability for the loss or deterioration

The liability is for the loss or deterioration occurring when the
possession is in bad faith. A greater liability, is imposed upon
the possessor who is in bad faith from the beginning than
upon one whose possession started in good faith but was
converted into bad faith.

Former is liable, even in cases of fortuitous event. Latter is


liable only in cases of fraud and negligence, after judicial
summons.

Possessor in good faith v. Possessor in Bad faith:

Possessor in GF
Possessor in BF
Must reimburse
fruits received or
fruits legitimate
Entitled to the fruits
possessor could
Fruits
while possession is in have received (549)
Received
GF and before legal

interruption ( 544)
Entitled to expenses
for production,
gathering and
preservation
Entitled to a part of
their expenses of
cultivation and part
of the network
harvest, both
proportion to the
time of possession
(545)

Pending
Owner may indemnify

Fruits
or allow possessor in
GF to finish
cultivation and fruits
will be indemnified
for his cultivation
(545)

If possessor refuses
concession, no
indemnity (545)
Must share with the
legitimate possessor,
Charges
Same as with GF
in proportion to the
time of possession
Right of
Necessary
reimbursement and
Reimbursement only
Expenses
retention in the
meantime (545)
Owners option to
reimburse him either
for expenses or for
increase in value
(546)
No right to

reimbursement. He
Retention prior to
also cannot remove
Useful
reimbursement (546)
improvements even
Expenses

he can do so without
Limited right of
injury to the
removal but should
principal thing.
not damage principal
and owner does not
exercise option of
payment of expenses
or increase in value

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(547)

Ornamental
Expenses

Limited right of
removal as above
(548)

Limited right of
removal (no injury to
thing and lawful
possessor does not
retain by paying for
them) (548)

Deterioration
of Loss

No liability unless due


to fraud or
negligence after
becoming in BF

Liable WoN due to


his fault, negligence,
fortuitous event

Costs of
Litigation

Bears cost

Bears cost

4.

Possession of movable acquired in good (in


concept of owner) is equivalent to title (Article
559)


Article 559. The possession of movable property acquired in
good faith is equivalent to a title. Nevertheless, one who has
lost any movable or has been unlawfully deprived thereof may
recover it from the person in possession of the same.

If the possessor of a movable lost or which the owner has
been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without
reimbursing the price paid therefor.

Possessor has actual title which is defeasible only by true
owner

One who has lost a movable or ahs been unlawfully deprived
thereof may recover it without reimbursement, except is
possessor acquired it in a public sale.

Possession of personal property acquired in good faith is
equivalent to title. When the movable property is in the
possession of one who has acquired and holds it in good faith,
the true owner cannot recover it, except when the latter has
lost it or he has unlawfully deprived of it.

Requisites of title:
1) Possession in GF
2) The owner has voluntarily parted with the possession of
the thing
3) The possession is in the concept of an owner

When the Owner Can Recover:
1) Has lost the thing
2) Has been unlawfully deprived thereof

H. Effect of possession in the concept of owner:


1.

Possession may be lapsed of time ripen into


full ownership, subject to certain exceptions

2.

Presumption of just title and cannot be obliged


to show or prove it (Article 541); exception
(Article 1131)

Article 541. A possessor in the concept of owner has in his


favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it.

Basis: Possession is presumed ownership, unless the contrary
is proved. This presumption is prima facie and it prevails until
contrary is proved.

Just title that which is legally sufficient to transfer the
ownership or the real right to which it relates

Exception:

Article 1131. For the purposes of prescription, just title must be
proved; it is never presumed.

3.

Possessor may bring all actions necessary to


protect his possession except revindicatoria

4.

May employ self help under Article 429

5.

Possessor may ask for inscription of such real


right of possession in the registry of property

6.

Has right to the fruits and reimbursement of


expenses (assuming he is possessor in good
faith)

7.

Upon recovery of possession which has


unlawfully deprived may demand fruits and
damages

8.

Generally, he can do on the things possessed


everything that the law authorizes the owner
to do until he is ousted by one who had a
better right.

9.

Possession in good faith and possession in bad


faith (Article 528)

a.

Mistake upon doubtful or difficult


question of law as a basis of good faith
(Article 526, par 3)

I.

Presumption in favor of the possessor for


acquisitive prescription
1.

Of good faith until contrary is proved


Article 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden of
proof.

Presumption is only juris tantum because possession is the
outward sign of ownership. Unless such proof of bad faith is
presented, the possessor will be held to be in good faith.

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So long as the possessor is not actually aware of any defect
invalidating his title, he is deemed a possessor in good faith.

2.

Of continuity of initial good faith in which


possession was commenced of possession in
good faith does not lose this character except
in case and from the moment possessor
became aware or is not unaware of improper
or wrongful possession (Art 528)


Article 528. Possession acquired in good faith does not lose
this character except in the case and from the moment facts
exist which show that the possessor is not unaware that he
possesses the thing improperly or wrongfully.

Possession in good faith ceases from the moment defects in
the title are made known to the possessor by extraneous
evidence or by suit for recovery of the property by the true
owner.

Good faith ceases from the date of the summons to appear at
the trial.

Case:
Cordero and her children filed a complaint against Cabral and
her tenants for possessing the land they inherited from her
husband. The Corderos are demanding them to surrender the
possession of the land and/or vacate it. They refused.

There is no evidence that the Cabrals were possessors in BF.
However, their GF ceased when theyw ere served with
summons to answer the complaint. As possessors in BF from
the service of the summons, they shall reimburse the fruits
received. Good faith ceases from the date of the summons to
appear at the trial. (Cordero v. Cabral)

3.

Of enjoyment of possession in the same


character in which possession was required
until contrary is proved (Article 529)


Article 529. It is presumed that possession continues to be
enjoyed in the same character in which it was acquired, until
the contrary is proved.

4.

Of non-interruption of possession in favor of


present possessor who proves possession at a
previous time until the contrary is proved
(Article 554, 1120-1124)


Article 554. A present possessor who shows his possession at
some previous time, is presumed to have held possession also
during the intermediate period, in the absence of proof to the
contrary.

Article 1120. Possession is interrupted for the purposes of
prescription, naturally or civilly.

Article 1121. Possession is naturally interrupted when through


any cause it should cease for more than one year.

The old possession is not revived if a new possession should
be exercised by the same adverse claimant.


Article 1122. If the natural interruption is for only one year or
less, the time elapsed shall be counted in favor of the
prescription.


Article 1123. Civil interruption is produced by judicial summons
to the possessor.


Article 1124. Judicial summons shall be deemed not to have
been issued and shall not give rise to interruption:
(1) If it should be void for lack of legal solemnities;
(2) If the plaintiff should desist from the complaint or should
allow the proceedings to lapse;
(3) If the possessor should be absolved from the complaint.
In all these cases, the period of the interruption shall be
counted for the prescription.

5.

Of continuous possession or non-interruption


of possession of which he was wrongfully
deprived for all purposes favorable to him.


Article 561. One who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes which may
redound to his benefit, to have enjoyed it without
interruption.

Applicable to both the possessor in GF and BF, but only so far
as it redounded to their benefit.

Possessor in GF deemed to be in continuous possession for
the purpose of prescription.

Recovery of possession must be according to law; through the
use of proper actions and the use of competent authority.

6.

Other presumptions with respect to specific


properties of property rights:


a. Of extension of possession of real
property to all movables contained therein
so long as in is not shown that they should
be excluded; exceptions (Article 426)

Article 426. Whenever by provision of the law, or an individual
declaration, the expression "immovable things or property,"
or "movable things or property," is used, it shall be deemed to
include, respectively, the things enumerated in Chapter 1 and
Chapter 2.

Whenever the word "muebles," or "furniture," is used alone, it

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shall not be deemed to include money, credits, commercial
securities, stocks and bonds, jewelry, scientific or artistic
collections, books, medals, arms, clothing, horses or carriages
and their accessories, grains, liquids and merchandise, or
other things which do not have as their principal object the
furnishing or ornamenting of a building, except where from
the context of the law, or the individual declaration, the
contrary clearly appears.

b. Non-interruption of possession
hereditary property (Article 533, 1078)

of


Article 533. The possession of hereditary property is deemed
transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the inheritance
is accepted.

One who validly renounces an inheritance is deemed never to
have possessed the same.

Article 1078. Where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the
deceased.

c. Of just title in favor of possessor in


concept of owner (Article 541; but see Art
1141)

Article 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it.

Article 1141. Real actions over immovables prescribe after
thirty years.
This provision is without prejudice to what is established for
the acquisition of ownership and other real rights by
prescription.

J.

Possession may be lost by

Article 555. A possessor may lose his possession:


(1) By the abandonment of the thing;

(2) By an assignment made to another either by onerous or
gratuitous title;

(3) By the destruction or total loss of the thing, or because it
goes out of commerce;

(4) By the possession of another, subject to the provisions of
Article 537, if the new possession has lasted longer than one
year. But the real right of possession is not lost till after the
lapse of ten years.

1.

Abandonment

Includes the giving up possession, and not necessarily of


ownership by every possessor

It is the opposite occupation. It consists of the voluntary
renunciation of all the rights which the person may have in a
thing, with intent to lose such a thing. To be effective, it must
be necessary that it be made by a possessor in the concept of
an owner.

It must be clearly appear that the spes recuperandi is gone
and the animus revertendi is finally given up.

2.

Assignment, either onerous or gratuitous


Complete transmission of ownership rights to another person,
gratuitously or onerously

3.

Destruction or total loss of thing or it goes out


of commerce


Must be total, otherwise partial loss will result in loss of
possession in the lost part only.

4.

Possession by another; if possession has lasted


longer than one year; real right of possession
not lost after 10 years


Subject to Article 537 (acts merely tolerated, etc.)

Article 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor of
a thing, or by violence, do not affect possession.

Possession that is lost here refers only to possession as a fact
(de facto), not the legal right of possession (de jure). It is the
possession that the new possessor acquires.

Real right of possession is lost only after 10 years.

After one year, the actions for forcible entry and unlawful
detainer can no longer be brought. But accion publiciana may
still be instituted to recover possession de jure

Article 553. One who recovers possession shall not be obliged
to pay for improvements which have ceased to exist at the
time he takes possession of the thing.

The improvements, having ceased to exist, the lawful
possessor or owner cannot benefit from them; hence he
should not pay for them.

Necessary expenses are not considered improvements, and
even if the object for which they were incurred no longer
exists at the time of entry upon possession, the lawful
possessor or owner has to pay for them.

Article 557. The possession of immovables and of real rights is
not deemed lost, or transferred for purposes of prescription
to the prejudice of third persons, except in accordance with

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the provisions of the Mortgage Law and the Land Registration
laws.
Third parties relying on the Registry of Property are privileged
to consider the registered possessors or owners as still such in
spite of loss

Article 558. Acts relating to possession, executed or agreed to
by one who possesses a thing belonging to another as a mere
holder to enjoy or keep it, in any character, do not bind or
prejudice the owner, unless he gave said holder express
authority to do such acts, or ratifies them subsequently.

Rules for Loss of Movables:

Article 556. The possession of movables is not deemed lost so
long as they remain under the control of the possessor, even
though for the time being he may not know their
whereabouts.

Control means judicial control or right, or that the thing
remains in ones patrimony

Article 560. Wild animals are possessed only while they are
under one's control; domesticated or tamed animals are
considered domestic or tame if they retain the habit of
returning to the premises of the possessor.

Kinds of Animals

Wild those which live naturally independent of man

Domesticated those which, being wild by nature, have
become accustomed to recognize the authority of man. When
they observe this custom, they are placed in the same
category as domestic and when they lose it, they are
considered as wild.

Domestic or Tame those which are born and reared
ordinarily under the control and care of man; they are under
the ownership of man, and do not become res nullius unless
they are abandoned.

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Part 7. Usufruct

A. Concept

Article 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise
provides.

Definition: Usufruct is a real right, of a temporary nature,
which authorizes its holder to enjoy all the benefits which
results from the normal enjoyment of anothers property, with
the obligation to return, at the designated time, either the
same thing or, in special cases, its equivalent. (De Buen)

Use and Habitation have been omitted from the CC
Use gives the right to receive, out of the fruits of
anothers property, whatever may be sufficient for
the needs of the usuary and of his family, even
should the latter increase.

Habitation gives to the person having this right the
authority to occupy in anothers house the
apartment necessary for himself and for the
members of his family.

Extent of Usufruct:
Includes both jus utendi and jus fruendi

Preservation of form and substance preservation
not only of the material of which the object is made
up, but also the form which makes the thing suitable
for the particular purpose for which the owner
intends it.

Abnormal usufruct alteration is allowed (quasi-
usufruct in Roman Law)

Object of Usufruct:
Rights as long as the right has its own independent existence
Servitude which has no existence independent of the
tenements to which it attaches, cannot be the object
of usufruct.

Consumable things there can be no right of usufruct
independent of the right of ownership with respect to such
things.
If the thing should be consumable, the usufruct
should be considered as on their value if they were
appraised, or on an equal quantity and quality if they
were not appraised.

Unproductive things usufruct can be created even on sterile
or absolutely unproductive land, or things for mere pleasure,
such as promenades, statues or paintings, even if they do not
produce any utility.

3 fundamental rights appertaining to ownership:
1) Jus disponendi remains with naked owner

2)
3)

Jus utendi usufruct


Jus fruendi usufruct


B. Historical Considerations

2 Types of Servitudes under Roman Law
1) Personal attaches to persons

Operae servorum on slaves; first to be


abolished

Usufructus general usufruct; 3 bundles of


rights (right to use or enjoy, to own fruits, and
to possess) last remaining form of personal
servitude under Roman Law

Usus right to receive out of the fruits of


anothers property; abolished

Habitation right to occupy in anothers house


the apartment necessary for the usufructuary
and his family; abolished
2) Real or Praedial attaches to real property


C.

Characteristics of Usufruct

Essential Characteristics:
1) It is a real right
2) Of temporary duration
3) To derive all advantages from the thing due to normal
exploitation

Natural Characteristics:
1) Usufructuary must preserve the form or substance of the
thing

Preservation is a natural requisite, not essential


because the title constituting it or the law may
provide otherwise

Substance is destination and value of the thing

Reason for preserving form and substance


-
To prevent extraordinary exploitation;
-
To prevent abuse, which is frequent;
-
To prevent impairment.
2) Usufruct is extinguished by the death of the usfructuary

Natural because a contrary intention may


prevail


D. Usufruct distinguished from Lease and from
Servitude

Usufruct v. Lease
Basis
By the nature of
the right
By the creator of
the right
By the cause
By the extent of
enjoyment

Usufruct
Always a real right
Owner
Passive owner
who allows the
usufructuary to
enjoy the thing
Generally covers
all the utility of

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Lease
Quasi-real or
personal right
Need not be an
owner
Active owner or
lessor who makes
the lessee enjoy
the thing
Generally covers a
particular utility

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By the origin

As regards repairs
and taxes

which the thing is


capable
May be created by
law, by will of the
parties, or by
prescription
Pays for ordinary
repairs and taxes
on the fruits

May only be
created by the will
of the parties
Generally not
borne by a lessee


Usufruct v. Servitude
Basis
As to the object
By the extent or
enjoyment

Usufruct
May involve real or
personal property
Covers all the uses
of the thing

Servitudes
May only involve
real property
Limited to a
particular use


Similarities between Usufruct and Servitude:
1) Both are real rights, whether registered or not.
2) Both rights may be registered, provided that the usufruct
involves real property. All easements of course concerns
real property.
3) Both may ordinarily be alienated or transmitted in
accordance with the formalities set by law.


E.

c.

Classes of Usufruct
1.

By origin


Article 563. Usufruct is constituted by law, by the will of
private persons expressed in acts inter vivos or in a last will
and testament, and by prescription.

a.

Voluntary


Voluntary that created by the will of private persons, either:
1) By act inter vivos such as contracts and donations

By alienation of the usufruct

By retention of the usufruct

Where a usufruct is constituted inter vivos


and for valuable consideration, the
contract is unenforceable unless in writing
2) By act mortis causa such as testament

b.

dominion, usufruct and administration.



FC. Article 226. The property of the unemancipated child
earned or acquired with his work or industry or by onerous or
gratuitous title shall belong to the child in ownership and shall
be devoted exclusively to the latter's support and education,
unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's support
and secondarily to the collective daily needs of the family.

Query Is there still a legal usufruct under the FC? YES, but
in a limited manner. The right of the parents over the fruits
and income of the childs property shall be limited primarily to
the collective daily needs of the family.

Under Old CC, there were 2 legal usufructs:
1) Lifetime usufruct of surviving spouse over the estate
of the dead spouse surviving spouse is not a legal
heir; no one inherits as long as the remaining spouse
is alive. Under the New CC, surviving spouse is a legal
heir (forced heir)
2) Usufruct of parent

Legal


Legal that provided by law such as the usufruct of parents
over the property of their unemancipated children

321 CC v. 226 FC 226 repealed 321
Article 321. CC The property which the unemancipated child
has acquired or may acquire with his work or industry, or by
any lucrative title, belongs to the child in ownership, and in
usufruct to the father or mother under whom he is under
parental authority and in whose company he lives; but if the
child, with the parent's consent, should live independently
from them, he shall be considered as emancipated for all
purposes relative to said property, and he shall have over it

Mixed


Mixed or by prescription (but long time possession usually
creates ownership), created both by law and the acts of
persons
Ex: I possessed in good faith a parcel of land which
really belonged to another. Still in good faith, I gave
in my will to X the naked ownership of the land and Y
the usufruct. In due time, Y may acquire the
ownership of the usufruct by acquisitive
prescription.


Article 565. The rights and obligations of the usufructuary shall
be those provided in the title constituting the usufruct; in
default of such title, or in case it is deficient, the provisions
contained in the two following Chapters shall be observed.


Will of the parties prevails the rights and duties of the
usufructuary provided by law may be modified or eliminated
by the parties.

Authority to alienate title constituting the usufruct may
validly authorize the usufructuary to alienate the thing itself
held in usufruct.
If the usufructuary is authorized to alienate the thing
in case of necessity, it is the usufructuary who
determines the question of necessity.

2.

By person enjoying right of usufruct

Article 564. Usufruct may be constituted on the whole or a


part of the fruits of the thing, in favor of one more persons,
simultaneously or successively, and in every case from or to a
certain day, purely or conditionally. It may also be constituted

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on a right, provided it is not strictly personal or
intransmissible.


a.

b.

Multiple several usufructuaries enjoy


i.
Simultaneous at the same time
(there can be 100 usufructs at once)
ii.
Successive one after the other

Article 756. The ownership of property may also be donated to


one person and the usufruct to another or others, provided all
the donees are living at the time of the donation.


Article 863. A fideicommissary substitution by virtue of which
the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator.


Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to another
the usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the provisions
of Article 863 shall apply.


If usufruct is by donation, ALL donees must be alive. (756)

Fiduciary or first heir and the second heir must be alive at the
time of the death of the testator. (863)

If by testamentary succession, there must be only 2 successive
usufructuaries, and both must be alive or at least already
conceived at the time of the testators death. (869)


By object of usufruct

Article 564. Usufruct may be constituted on the whole or a


part of the fruits of the thing, in favor of one more persons,
simultaneously or successively, and in every case from or to a
certain day, purely or conditionally. It may also be constituted
on a right, provided it is not strictly personal or
intransmissible.


a.


b.

Simple only one usufructuary enjoys


Limitation on successive usufruct:

3.

Right to receive present or future support cannot be the


object of the usufruct.

ii.


Must not be strictly personal or intransmissible.

Usufruct over a real right is by itself a real right.

Things
Normal involves non-consummable
things where the form and substance are
preserved

Abnormal or irregular


Article 574. Whenever the usufruct includes things which
cannot be used without being consumed, the usufructuary
shall have the right to make use of them under the obligation
of paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return at the
same quantity and quality, or pay their current price at the
time the usufruct ceases.


May be on consumables (ex: food)
But must be replaced with equal quantity if not
appraised
Must be considered as on their value
May also be on non-consummables that gradually deteriorate
by use (ex: furniture or car)

In reality, the usufruct is converted into a simple loan.

Not upon the consumable things themselves which are
delivered to the usufructuary, but upon the sum representing
their value or upon a quantity of things of the same kind and
quality.

The usufructuary, in effect, becomes the owner of the things
in usufruct, while the grantor becomes a mere creditor
entitled to the return of the value or of the things of the same
quantity and quality.

4.


By extent of the usufruct


Article 564. Usufruct may be constituted on the whole or a
part of the fruits of the thing, in favor of one more persons,
simultaneously or successively, and in every case from or to a
certain day, purely or conditionally. It may also be constituted
on a right, provided it is not strictly personal or
intransmissible.


a.

Rights

i.

i.
ii.

As to the fruits
Total all consumed by the usufruct
Partial only on certain aspects of the
usufructs fruits

Article 598. If the usufruct be constituted on the whole of a


patrimony, and if at the time of its constitution the owner has
debts, the provisions of Articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts.

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The same rule shall be applied in case the owner is obliged, at
the time the usufruct is constituted, to make periodical
payments, even if there should be no known capital.

F.

b.

As to object
Singular only on particular property of
the owner
ii.
Universal pertains to the whole
property;

1.


Universal usufruct subject to provisions of:
Article 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does not
contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to
have been previously contracted. In no case shall the donee be
responsible for the debts exceeding the value of the property
donated, unless a contrary intention clearly appears.


Article 759. There being no stipulation regarding the payment
of debts, the donee shall be responsible therefor only when
the donation has been made in fraud of creditors.

The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient
property to pay his debts prior to the donation.


The ususfructuary has to pay for the debts of the naked owner
as earlier stipulated. If there are no stipulations, the
usufructuary has to pay only when the usufruct has been
made in fraud of creditors.

5.

i.


a.
b.

Pure no terms or conditions


Conditional either suspensive or
resolutory
c. With a term or period
i.
Ex die from a certain day
ii.
In diem up to a certain day
iii.
Ex die in diem from a certain day up to a
certain day

Fruits consist of natural, industrial and


civil fruits


Article 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in usufruct.
With respect to hidden treasure which may be found on the
land or tenement, he shall be considered a stranger.


Rights of Usufructuary:
Right to enjoy the property to the same extent as the
owner, but only with respect to its use and the
receipt of its fruits.

With respect to the use of property, he has the right
to receive from the thing all the service or benefit
that it can give.

Usufructuary cannot extract products which do not
constitute fruits because he is bound to preserve the
form and substance of the thing.

Ex: dividends from shares of a corporation, whether
in the form of cash or of stock dividends.

Usufructuary rights may be transferred, assigned or
otherwise disposed of by the usufructuary.

Not exempt from execution and can be sold at public
auction.


ii.

By the terms of usufruct

Article 564. Usufruct may be constituted on the whole or a


part of the fruits of the thing, in favor of one more persons,
simultaneously or successively, and in every case from or to a
certain day, purely or conditionally. It may also be constituted
on a right, provided it is not strictly personal or
intransmissible.

Right to possess and enjoy the thing itself,


its fruits and accessions

As to the thing and its fruit


a.

i.

Article 595. The owner may construct any works and make any
improvements of which the immovable in usufruct is
susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the value
of the usufruct or prejudice the right of the usufructuary.

Rights of Usufructuary

As to hidden treasure, usufructuary is


considered a stranger

Article 566. The usufructuary shall be entitled to all the


natural, industrial and civil fruits of the property in usufruct.
With respect to hidden treasure which may be found on the
land or tenement, he shall be considered a stranger.


Usufructuary is a stranger thus he has no share.

Article 438. Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.

Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.

If the things found be of interest to science of the arts, the
State may acquire them at their just price, which shall be

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divided in conformity with the rule stated.


If usufructuary accidentally discovers hidden treasure, he is
entitled to as finder.

iii.

Fruits pending at the beginning of


usufruct


Article 567. Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong to
the owner.

In the preceding cases, the usufructuary, at the beginning of
the usufruct, has no obligation to refund to the owner any
expenses incurred; but the owner shall be obliged to
reimburse at the termination of the usufruct, from the
proceeds of the growing fruits, the ordinary expenses of
cultivation, for seed, and other similar expenses incurred by
the usufructuary.

The provisions of this article shall not prejudice the rights of
third persons, acquired either at the beginning or at the
termination of the usufruct.


Fruits pending at the beginning of the usufruct:
Belong to the usufructuary without reimbursement
of expenses to the owners, but also without
prejudice to 3rd persons

Fruits already matured at the time of the termination
of the usufruct, which ordinarily would have already
been gathered by the usufructuary, may remain
ungathered for no fault imputable to him, but
because of malice or an act imputable to the naked
owner or a 3rd person, or even due to force majeure
or fortuitous event.

No prejudice to the right of 3rd persons if the fruits
had been planted by a possessor in good faith, the
pending crop expenses and charges shall be
prorated between said possessor and the
usufructuary.

Fruits pending at its termination:
Belong to the naked owner

The owner shall reimburse to the usufructuary
ordinary cultivation expenses from the proceeds of
the fruits (not to exceed the value of the fruits)

Rights of innocent 3rd parties should not be
prejudiced.


iv.

Civil fruits


Article 569. Civil fruits are deemed to accrue daily, and belong
to the usufructuary in proportion to the time the usufruct may
last.

Article 570. Whenever a usufruct is constituted on the right to


receive a rent or periodical pension, whether in money or in
fruits, or in the interest on bonds or securities payable to
bearer, each payment due shall be considered as the proceeds
or fruits of such right.

Whenever it consists in the enjoyment of benefits accruing
from a participation in any industrial or commercial enterprise,
the date of the distribution of which is not fixed, such benefits
shall have the same character.

In either case they shall be distributed as civil fruits, and shall
be applied in the manner prescribed in the preceding article.


There is NO prorating of natural or industrial fruits.

Rule as to certain rights (rent, pension, benefits)
Accrue proportionately to the naked owner and
usufructuary, for the time the usufruct lasts.

This article applies whether or not the date of distribution is
fixed because this after all is the usual state of things.

Example for rents If A gives B the usufruct of As land, and
As land is being rented by C, each payment of rent shall go to
B for the duration of the usufruct, each payment being
considered as part of the proceeds of the property.

v.

To enjoy any increase through


accessions and servitudes, including
products of hunting and fishing


Article 571. The usufructuary shall have the right to enjoy any
increase which the thing in usufruct may acquire through
accession, the servitudes established in its favor, and, in
general, all the benefits inherent therein.


Reason the usfructuary, as a rule, is entitled to the entire jus
fruendi and entire jus utendi.


b.

Right to lease the thing


Article 572. The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title; but all the contracts he may enter
into as such usufructuary shall terminate upon the expiration
of the usufruct, saving leases of rural lands, which shall be
considered as subsisting during the agricultural year.


Effect of the transfer of right:
The transfer or lease of the usufruct does NOT
terminate the relation of the usufructuary with the
owner.

Usufruct does NOT terminate upon the death of the
transferee, but it terminates upon the death of the
usufructuray who made the transfer.

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Alienation of thing in usufruct:
Usufructuary, not being the owner, CANNOT alienate
or dispose of the objects included in the usufruct.

He cannot renounce a servitude in favor of the
tenement in usufruct; neither can he mortgage or
pledge the thing, even if they constitute stocks or
bonds.

Right of usufruct is sometimes converted into a right
of ownership, and the usufructuary may dispose of
the things in the ff. cases:
When the things are consumable (574);
When the things by their nature are
intended for sale, such as the merchandise
in a commercial establishment; and
When the things, whatever their nature,
are delivered under appraisal as equivalent
to their sale

Sale of future crop if the usufruct terminates before the
harvest, the legal consequences of the sale are:
Valid sale owner is entitled to receive the price
from the vendee

If price has been paid in advance to the usufructuary,
he or his estate must deliver it to the owner.

Alienation of Legal Usufruct
Valverde only voluntary usufructs can be alienated
under this article because legal usufructs are created
by law for particular persons in view of certain
relations and therefore cannot be enjoyed by others
who do not have such relations.

Manresa and others while the usufruct of the
surviving spouse under the old CC could be alienated,
that of the parents over the property of
unemancipated children could not be transferred
because it is affected by important obligations in
favor of said children.

General rule the lease should be for the same period as the
usufruct
Exception leases of rural lands in which case the
lease continues for the remainder of the agricultural
year

It is the usufructuary and not the naked owner who has the
right to choose the tenant. (Fabie v. David)


Article 568. If the usufructuary has leased the lands or
tenements given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs and
successors shall receive only the proportionate share of the
rent that must be paid by the lessee.


Leases by owners a lease executed by the owner before the
creation of the usufruct is not extinguished by such usufruct.

Lease by usufructuary the usufructuary is entitled to receive


such rents only up to the time of the expiration of the
usufruct, if the lease still subsists after the termination of the
usufruct. The rents for the remaining period of the lease will
belong to the owner.


i.

Limitations


May be leased even without the consent of the owner; but no
alienation, mortgage or pledge.

Future crop may be sold but such sale would be void if not
ratified by the owner. The buyers remedy is to recover from
the usufructuary.

If things are consumables or were appraised when delivered,
the usufructuary can dispose of them.

As owner of the right of usufruct, the usufructuary may then
do any act of ownership upon it. But once done, it cannot be
taken back.

Only voluntary usufruct can be alienated.


ii.

Liability of the usufructuary-lessor


Article 590. A usufructuary who alienates or leases his right of
usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the
person who substitutes him.

Liable for the act of the substitute.



If theres a sub-usufructuary, it is still the usufructuary who is
liable to the owner.

Liability is founded upon the duty to preserve the form and
substance of the thing in usufruct.


iii.

Exceptions of right of leasing the


thing


Legal usufructs cannot be leased.

Caucion juratoria (lease would show that the usufructuary
does not need the property badly)

Case:
Fabie is the administratix and the usufructuary of the
premises, which Ngo Soo is leasing. Fabie instituted an action
of unlawful detainer against Ngo Soo claiming that she had
the right to choose who the tenants would be and as so, she
can choose herself to be the tenant since she had already
refused the renewal of the present lease agreement. The
absolute owner of the premises intervened in this case
claiming that Fabie was only a usufructuary of the income of
the premises. The case brought to the SC is not decided on the
merits and the issue revolves around the question as who is

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entitled to administer the property subject matter, and who
should be the tenant, and the conditions of the lease.

The case is remanded after the Court determined that after
resorting to the will of the former owner, the stipulation of
the parties, and a final judgment in another civil case, the
usufructuary has the right to administer the property in
question. All the acts of administration were vested in the
usufructuary. As long as the property is properly conserved
and insured, the owner have no cause for complaint, and his
right in that regard is fully protected by the terms of the
stipulation and the judgment of the court in the civil case. To
permit him to arrogate to himself the privilege to choose the
tenant, and to dictate the conditions of the lease would be to
place the usufructuary entirely at his mercy that is, it would
place the usufructuary in the absurd situation of having a
certain indisputable right without the power to protect,
enforce and fully enjoy it.

Therefore, as corollary to the right of the usufructuary to all
the rent, to choose the tenant, and to fix the amount of the
rent, she necessarily has the right to choose herself as the
tenant thereof; and, as long as the obligations she had
assumed towards the owner are fulfilled. (Fabie v. Gutierrez
David)


c.

Right to improve the thing inures to the


benefit of the naked owner


Article 579. The usufructuary may make on the property held
in usufruct such useful improvements or expenses for mere
pleasure as he may deem proper, provided he does not alter
its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without damage
to the property.


Whenever the usufructuary can remove the improvements
without injury to the property in usufruct, he has the right to
do so, and the owner cannot prevent him from doing so even
upon payment of their value.

This right does not involve an obligation if the usufructuary
does not wish to exercise it, he cannot be compelled by the
owner to remove the improvements.

Usufructuary may demolish or destroy the improvement, such
as a building, provided he leaves the land as it was before the
construction of such improvement.

This right to remove improvements can be enforced only
against the owner, not against a purchaser in good faith to
whom a clean title has been issued.

There is NO indemnity if the improvements made by the
usufructuary were subject to indemnity, we would have a
dangerous and unjust situation in which the usufructuary could
dispose of the owners funds, by compelling him to pay for
improvements which perhaps he would not have made.

Registration of improvements to protect usufructuary


against 3rd persons

While a possessor in good faith is entitled to a refund for
useful improvements, a usufructuary is not.


Article 580. The usufructuary may set off the improvements
he may have made on the property against any damage to the
same.


Compensation of values and not of rights and obligations

It is necessary that the improvements should have increased
the value of the property, and that the damages are imputable
to the usufructuary.

Increase in value and the amount of damages are set off
against each other.
If the damages exceed the increase in value, the
difference should be paid by the usufructuary as
indemnity.

If the increase in value exceeds the damages, and the
improvements are of such nature that they can be
removed without injury to the thing in usufruct, the
settlement of the difference must be agreed upon by
the parties.
If the improvements cannot be removed
without injury, the excess in value accrues
to the owner.


2.

As to the legal right of usufruct itself


a.

Right to mortgage right of usufruct


Article 572. The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title; but all the contracts he may enter
into as such usufructuary shall terminate upon the expiration
of the usufruct, saving leases of rural lands, which shall be
considered as subsisting during the agricultural year.


Does not include parental usufruct because of personal and
family considerations.

Usufruct cannot pledge or mortgage the thing itself because
he does not own the thing.

Neither can he sell or in any way alienate the thing itself, or
future crops, for crops pending at the termination of the
usufruct belong to the naked owner.

b.

Right to alienate the usufruct except in


purely personal usufructs or when title
constituting it prohibits the same
parental usufruct is inalienable

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G. Rights of the naked owner


1. At the beginning of the usufruct (see
obligations of usufructuary at the beginning of
the usufruct)

2. During the usufruct
a. Retains title to the thing or property

b. He may alienate the property he may not
alter the form or substance of the thing;
nor do anything prejudicial to the
usufructuary

It may be a private document because nothing is provided by


law as to its form.
But when immovables are involved, public
instrument is prescribed to affect 3rd persons. (1358)

Effect of failure to make inventory such failure does not
affect the rights of the usufructuary to enjoy the property and
its fruits; but a prima facie presumption arises that the
property was received by the usfructuary in good condition,
and even if he is already in possession, he may still be required
to make an inventory. (under the Argentine Code as accepted
under our law)


i.

Article 581. The owner of property the usufruct of which is


held by another, may alienate it, but he cannot alter its form or
substance, or do anything thereon which may be prejudicial to
the usufructuary.


He may construct buildings, make
improvements and plantings. Provided: (1)
the value of the usufruct is not impaired
and (2) the rights of the usufructuary are
not prejudiced

H. Obligations of Usufructuary

1. At the beginning of usufruct or before
exercising the usufruct

are easily lost or deteriorated.


ii.

c.

Article 583. The usufructuary, before entering upon the


enjoyment of the property, is obliged:

(1) To make, after notice to the owner or his legitimate
representative, an inventory of all the property, which shall
contain an appraisal of the movables and a description of the
condition of the immovables;

(2) To give security, binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter.


These requirements are NOT conditions precedent to the
commencement of the right of the usufructuary but merely to
the entry upon the possession and enjoyment of the property.

a.

Exceptions to the requirement of


inventory
No one will be injured thereby

Article 585. The usufructuary, whatever may be the title of the


usufruct, may be excused from the obligation of making an
inventory or of giving security, when no one will be injured
thereby.


b.


Title
constituting
usufruct
excused the making of inventory

Title constituting usufruct already
makes an inventory

To give a bond for the faithful


performance of duties as usufructuary

Purpose to insure faithful compliance of the duties of the


usufructuary (whether required during or at the end of the
usufruct like the duty to return)

Form of security since the law does not specify what kind of
security should be given, it follows that any kind of sufficient
security should be allowed such as a cash or personal bond,
mortgage, etc.


i.

To make inventory


The law does not require the concurrence of the owner in the
making of the inventory. It is sufficient for the usufructuary to
notify him and he may attend or not, personally or through an
authorized representative.

The expenses for the making of the inventory are borne by the
usufructuary because it is his obligation to make the inventory
and it is a prerequisite to his entry upon the enjoyment of the
property.

Requisites
Immovables must be described

Movables appraised because they

No bond are required in the following


No prejudice would result (585)

Usufruct is reserved by donor
gratitude on the donees part
demands that the donor be excused
from filing the bond

Article 584. The provisions of No. 2 of the preceding article


shall not apply to the donor who has reserved the usufruct of
the property donated, or to the parents who are
usufructuaries of their children's property, except when the
parents contract a second marriage.

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Title
constituting
usufruct
excused usufructuary

If usufructuary takes possession
under a caucion juratoria

Article 587. If the usufructuary who has not given security


claims, by virtue of a promise under oath, the delivery of the
furniture necessary for his use, and that he and his family be
allowed to live in a house included in the usufruct, the court
may grant this petition, after due consideration of the facts of
the case.

The same rule shall be observed with respect to implements,
tools and other movable property necessary for an industry or
vocation in which he is engaged.

If the owner does not wish that certain articles be sold
because of their artistic worth or because they have a
sentimental value, he may demand their delivery to him upon
his giving security for the payment of the legal interest on
their appraised value.

The security given may be by a personal bond, a pledge, or a
mortgage.

It is only by way of exception that a caucion juratoria is
allowed, and only under the special circumstances mentioned
in this article:
Upon petition of the usufructuary; and
According to judicial order

It is permitted as a matter of common humanity.

A usufructuary under this can neither alienate his right nor
lease the property, for that would mean that he does not need
the dwelling or the implements and furniture.

Requisites before this is allowed:
1) Proper court petition
2) Necessity for delivery of furniture, implements or house
included in the usufruct
3) Approval of the court
4) Sworn promise

ii.


Right of the naked owner:
Potestative right; if he does not wish to exercise it,
he may deliver the property to the usufructuary.

Delivery, however, does not mean a renunciation of
the right to demand security.

He shall have the ff. options:
Receivership of realty, sale of movables,
deposit of securities, or investment of
money; or
Retention of the property as administrator.

Net products less administration expenses fixed by
agreement or by the Court, shall be delivered to the
usufructuary.

Right of the usufructuary he may alienate his right over the
property which he does not possess in the same form as he
holds it, without prejudice to the right of the transferee to
give the required security.


Retroactivity upon giving the security, the usufructuary will
be entitled to all the benefits accruing since the time when he
should have begun to receive them.


Effect of failure to give bond

2.

During the usufruct


a.

Effect of filing a bond

Article 588. After the security has been given by the


usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title
constituting the usufruct, he should have commenced to
receive them.

iii.

Article 586. Should the usufructuary fail to give security in the


cases in which he is bound to give it, the owner may demand
that the immovables be placed under administration, that the
movables be sold, that the public bonds, instruments of credit
payable to order or to bearer be converted into registered
certificates or deposited in a bank or public institution, and
that the capital or sums in cash and the proceeds of the sale of
the movable property be invested in safe securities.

The interest on the proceeds of the sale of the movables and
that on public securities and bonds, and the proceeds of the
property placed under administration, shall belong to the
usufructuary.

Furthermore, the owner may, if he so prefers, until the
usufructuary gives security or is excused from so doing, retain
in his possession the property in usufruct as administrator,
subject to the obligation to deliver to the usufructuary the net
proceeds thereof, after deducting the sums which may be
agreed upon or judicially allowed him for such administration.

To take care of the thing like a good father


of a family


Article 589. The usufructuary shall take care of the things
given in usufruct as a good father of a family.


When damages are caused to the property by the fault or
negligence of the usufructuary, the naked owner need not
wait for the termination of the usufruct before bringing the
action to recover proper indemnity.



Article 610. A usufruct is not extinguished by bad use of the

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thing in usufruct; but if the abuse should cause considerable
injury to the owner, the latter may demand that the thing be
delivered to him, binding himself to pay annually to the
usufructuary the net proceeds of the same, after deducting
the expenses and the compensation which may be allowed
him for its administration.


The bad use of a thing, which causes considerable injury,
entitles the owner to demand the delivery and administration
of the thing.

The bad use must cause considerable injury, not to the thing,
but to the owner.

When theres sufficient security, this can seldom happen,
because there can be no injury to the owner who can recover
on the security.
If theres no security, and the usufructuary does not
have other property, the resulting prejudice is easy
to see.

The exercise of this remedy does NOT extinguish the usufruct.

b.

To undertake ordinary repairs


Article 592. The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct.

By ordinary repairs are understood such as are required by the
wear and tear due to the natural use of the thing and are
indispensable for its preservation. Should the usufructuary fail
to make them after demand by the owner, the latter may
make them at the expense of the usufructuary.

Requisites of ordinary repairs:
1) That the deteriorations or defects arise from the natural
use of the thing;
2) That the repairs are necessary for the preservation of the
thing.

The usufructuary is bound to pay only for the repairs made
during the existence of the usufruct.
He cannot be obliged to pay for the expenses for
repairs made before he enters upon the enjoyment
of the thing.

If the defects existed already at the time the usufruct
began, the obligation to defray the ordinary repairs
falls upon the owner.

When the ordinary repairs are due to defects caused by the
fault of the usufructuary he cannot exempt himself from
liability by renouncing the usufruct.
He will still be held liable for damages under the
general rule of liability for fault or negligence.

But if the defects existing before the renunciation
are occasioned by the ordinary use of the thing, the
usufructuary may exempt himself from making the

repairs by returning to the owner the fruits received


during the time that the defects took place.

Remedy if usufructuary does not make the necessary repairs
if naked owner had demanded the repair, and the
usufructuary still fails to do so, the owner may make them
(personally or thru another) at the expense of the
usufructuary.


c.

To notify owner of need to undertake


extraordinary repairs


Article 593. Extraordinary repairs shall be at the expense of
the owner. The usufructuary is obliged to notify the owner
when the need for such repairs is urgent.

i.

Concept of extraordinary repairs


Extraordinary repairs are for the account of the owner but the
usufructuary should notify the owner of the urgent need.

Kinds:
1) Those cause by exceptional circumstances, whether
or not they are necessary for the preservation of the
thing;
2) Those caused by the natural use of the thing, but are
not necessary for its preservation.

Article 594. If the owner should make the extraordinary
repairs, he shall have a right to demand of the usufructuary
the legal interest on the amount expended for the time that
the usufruct lasts.

Should he not make them when they are indispensable for the
preservation of the thing, the usufructuary may make them;
but he shall have a right to demand of the owner, at the
termination of the usufruct, the increase in value which the
immovable may have acquired by reason of the repairs.

ii.

Naked owner obliged to undertake


them but when made by owner,
usufructuary pays legal interest on the
amount while usufruct lasts


Reason why naked owner pays for extraordinary repairs it is
his property

Legal repairs must be paid by the usufructuary on the amount.

It is the usufructuary who benefits by the extraordinary
repairs, which restore the thing to its condition of usefulness.


iii.

Naked owner cannot be compelled to


undertake extraordinary repairs
If indispensible and owner fails to
undertake extraordinary repairs
may be made by usufructuary

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The expenses for extraordinary repairs are borne by the
owner but the usufructuary cannot compel him to make such
repairs, because the law does not impose such repairs as an
obligation of the owner.

Neither is the usufructuary bound to make such repairs if the
owner chooses not to make them; it is optional for the
usufructuary to make such repairs or not.

The usufructuary who has made the extraordinary repairs
necessary for preservation, is entitled to recover from the
owner the increase in value which the tenement acquired by
reason of such works.
Usufructuary may retain until he is paid.

Requisites before usufructuary is allowed to make
extraordinary repair:
1) There must be due notification to the naked owner of the
urgency if it is not urgent, there is no obligation to give
notice.
2) The naked owner failed to make them
3) The repair is needed for preservation


d.

To pay for annual charges and taxes on the


fruits

Article 612. Upon the termination of the usufruct, the thing in


usufruct shall be delivered to the owner, without prejudice to
the right of retention pertaining to the usufructuary or his
heirs for taxes and extraordinary expenses which should be
reimbursed. After the delivery has been made, the security or
mortgage shall be cancelled.

Case:
Through lease applications, Samar Mining was allowed to
construct roads for its operations on lands owned by the
public. It constructed a road thereon, which road was
assessed for real estate taxes. It was considered taxable by
the Board as it falls under the term improvements.

No real estate taxes on the road should be assessed against
Samar Mining. It is well settled that a real tax, being a burden
upon the capital, should be paid by the owner of the land and
not by a usufructuary. There is no merit in the contention of
distinguishing public lands into alienable and indisposable. All
properties owned by the government, without any distinction,
are exempt from taxation. (Board of Assessment Appeals of
Zamboanga del Sur v. Samar Mining Company, Inc.)

e.

Article 596. The payment of annual charges and taxes and of


those considered as a lien on the fruits, shall be at the expense
of the usufructuary for all the time that the usufruct lasts.

Annual charges and taxes are to be paid by the usufructuary
only when they can be considered as a lien upon the fruits.
(Sanchez Roman)

They cannot include those levied upon the tenement itself, but
only those levied upon the persons in possession or
enjoyment thereof.

Article 601. The usufructuary shall be obliged to notify the


owner of any act of a third person, of which he may have
knowledge, that may be prejudicial to the rights of ownership,
and he shall be liable should he not do so, for damages, as if
they had been caused through his own fault.
Usufructuary must give notice to the owner of acts which may
prejudice the rights of ownership, if urgent repairs are needed
and if an inventory is to be made.


f.


Article 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of the
owner.

If the latter has paid them, the usufructuary shall pay him the
proper interest on the sums which may have been paid in that
character; and, if the said sums have been advanced by the
usufructuary, he shall recover the amount thereof at the
termination of the usufruct.

To shoulder the costs of litigation re


usufruct


Article 602. The expenses, costs and liabilities in suits brought
with regard to the usufruct shall be borne by the usufructuary.


Reason: the suits affect usufructuarys rights


g.

Land tax is a burden upon the capital, that is, upon the real
value of the property, and under the present article it should
be paid by the owner.

If paid by the owner he is entitled to interest on the payment
Reason: the usufructuary is enjoying the property

If paid by the usufructuary he is entitled to reimbursement at
termination with a right of retention.

To notify owner of any act detrimental to


ownership

To answer for fault or negligence of


alienee, lessee or agent of usufructuary

Article 590. A usufructuary who alienates or leases his right of


usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the
person who substitutes him. (498)
The usufructuary is made liable for the acts of the substitute.
While the substitute answers to the usufructuary, the
usufructuary answers to the naked owner.

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I.

At the time of termination of the usufruct


1. To deliver the thing in usufruct to the owner in
the condition in which he has received it, after
undertaking ordinary repairs


Exception: abnormal usufruct return the thing of same kind,
quantity and quality; if with appraised value, must return value
appraised


J.

Special Cases of Usufruct


1.

Usufruct over a pension or periodical income

Article 570. Whenever a usufruct is constituted on the right to


receive a rent or periodical pension, whether in money or in
fruits, or in the interest on bonds or securities payable to
bearer, each payment due shall be considered as the proceeds
or fruits of such right.

Whenever it consists in the enjoyment of benefits accruing
from a participation in any industrial or commercial enterprise,
the date of the distribution of which is not fixed, such benefits
shall have the same character.

In either case they shall be distributed as civil fruits, and shall
be applied in the manner prescribed in the preceding article.


Each payment shall be considered as fruits.

The distribution of benefits (dividends) of industrial or
commercial enterprises shall also be deemed fruits.

Apportionment shall be on the basis of the ordinary rules
governing civil fruits.


2.

Usufruct of property owned in common


Article 582. The usufructuary of a part of a thing held in
common shall exercise all the rights pertaining to the owner
thereof with respect to the administration and the collection
of fruits or interest. Should the co-ownership cease by reason
of the division of the thing held in common, the usufruct of
the part allotted to the co-owner shall belong to the
usufructuary.

The usufructuary takes the place of the owner as to:


1) Management;
2) Fruits; and
3) Interest

Effect of partition:
1) The right of the usufructuary is not affected by the
division of the property in usufruct among the co-owners.
2) After partition, the usufruct is transferred to the part
allotted to the co-owner.

3.

Usufruct constituted on a flock or herd of


livestock


Article 591. If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to replace with the
young thereof the animals that die each year from natural
causes, or are lost due to the rapacity of beasts of prey.
If the animals on which the usufruct is constituted should all
perish, without the fault of the usufructuary, on account of
some contagious disease or any other uncommon event, the
usufructuary shall fulfill his obligation by delivering to the
owner the remains which may have been saved from the
misfortune.

Should the herd or flock perish in part, also by accident and
without the fault of the usufructuary, the usufruct shall
continue on the part saved.

Should the usufruct be on sterile animals, it shall be
considered, with respect to its effects, as though constituted
on fungible things.


On sterile stock same rules on consumable property govern
(i.e. replacement upon termination)

On fruitful stock
Where theres obligation to replace: (1) If some
animals die from natural causes; (2) Or if some
animals are lost due to rapacity of beasts of prey
Even though the cause is fortuitous, there
is the duty to replace. This is because the
loss is more or less expected and natural.

Replace ordinary losses with the young.

Where theres no obligation to replace: (1) if there is a
total loss of animals because of some unexpected or
unnatural loss (like contagious disease or any other
uncommon event, provided the usufructuary has no
fault); (2) if there is a partial loss
If all perish, the usufructuary should deliver
the remains to the owner.

If a part of the stock perishes, the usufruct subsists on the
remainder.


4.

Usufruct over fruit bearing trees and sprout


and woodlands


Article 575. The usufructuary of fruit-bearing trees and shrubs
may make use of the dead trunks, and even of those cut off or
uprooted by accident, under the obligation to replace them
with new plants.


This is a rare application now to forest lands because of the
Regalian Doctrine governing natural resources under the
Constitution.
There are private plantations in the Philippines.

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The usufructuary can use the ff: Dead trunks and those cut off
or uprooted by accident.

Usufructuary must replace dead trees, unless it would be
impossible or burdensome, in which case he may demand that
the owner clear the land.

Can make usual cuttings that owner used to do.

Can also cut the trees that are not useful


Article 576. If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in such
considerable number that it would not be possible or it would
be too burdensome to replace them, the usufructuary may
leave the dead, fallen or uprooted trunks at the disposal of the
owner, and demand that the latter remove them and clear the
land.


A is a usufructuary of trees and shrubs belonging to B. as a
result of an earthquake, many of the trees and shrubs
disappeared or were destroyed. What are As rights and
obligations?
If it is impossible or too burdensome to replace
them, the usufructuary has an option. He:
May use the trunks but should replace
them;
Or may leave the dead, fallen, or uprooted
trunks at the owners disposal, and demand
that the latter remove them and clear the
land.

If it is slightly burdensome to replace them, the
usufructuary must replace them (whether he uses
the dead trunks or not), and he cannot demand
clearance of the land by the owner.

5.

Usufruct on a right of action

Article 578. The usufructuary of an action to recover real


property or a real right, or any movable property, has the right
to bring the action and to oblige the owner thereof to give
him the authority for this purpose and to furnish him whatever
proof he may have. If in consequence of the enforcement of
the action he acquires the thing claimed, the usufruct shall be
limited to the fruits, the dominion remaining with the owner.


Deals with the right to recover by court action:
1) Real property
2) Personal property
3) Real right over real or personal property

The usufructuary can demand from the owner:
1) Authority to bring the action (usually a special power of
attorney)
2) Proofs needed for a recovery

Institution of the action the action may be instituted in the


usufructuarys name, for being the owner of the usufruct, he is
properly deemed a proper party in interest
If the purpose is the recovery of the property or
right, he is still required under 578 to obtain the
naked owners authority.
If the purpose is to object to or prevent disturbances
over the property, no special authority from the
naked owner is needed.


6.

Usufruct on mortgaged property


Article 600. The usufructuary of a mortgaged immovable shall
not be obliged to pay the debt for the security of which the
mortgage was constituted.
Should the immovable be attached or sold judicially for the
payment of the debt, the owner shall be liable to the
usufructuary for whatever the latter may lose by reason
thereof.


Usufruct of mortgaged immovable (particular usufruct)
A mortgaged his land to B and gave its usufruct to C.
Since A did not pay his debt, B foreclosed the
mortgage and at the foreclosure sale D bought the
property. Can C demand anything from A? Yes,
because A is held by the law liable for the loan.

When the usufruct is universal
As when the usufruct involves the entire patrimony,
some object of which are mortgaged, the more
applicable article is 598.

If there is no stipulation for payment by the
usufructuary is made, and the usufruct was not
created to defraud creditors, the usufructuary has
NO duty to payy off the debt.

The usufruct may mortgage the usufruct itself. In such a case,
it is the usufructuary who should pay his own debt.

This article can also apply, by analogy, to a pledged movable,
provided that the movable is in the usufructuarys possession,
since in the law of pledge, it is essential that the thing pledged
be placed in the possession of the creditor, or a 3rd person by
common agreement.

7.

Usufruct over an entire patrimony

Article 598. If the usufruct be constituted on the whole of a


patrimony, and if at the time of its constitution the owner has
debts, the provisions of Articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of the
usufructuary to pay such debts.

The same rule shall be applied in case the owner is obliged, at
the time the usufruct is constituted, to make periodical
payments, even if there should be no known capital.


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Application:
1) If the usufruct is a universal one
2) And the naked owner Has debts or is obliged to make
periodical payments (whether or not there be known
capital)

General rule: the usufructuary is NOT liable for the owners
debts.

Exceptions:
1) When it is so stipulated; in which case
The usufructuary shall be liable for the debt
specified.

If there is no specification, he is liable only for debts
incurred by the owner before the usufruct was
constituted.

2) When the usufruct is constituted in fraud of creditors

Limitation in no case shall the usufructuary be responsible
for debts exceeding the benefits under the usufruct. (except
when the contrary intention appears)


8.

Usufruct over deteriorable property


Article 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through wear
and tear, the usufructuary shall have the right to make use
thereof in accordance with the purpose for which they are
intended, and shall not be obliged to return them at the
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud or
negligence.

shall have the right to make use of them under the obligation
of paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return at the
same quantity and quality, or pay their current price at the
time the usufruct ceases.


If the thing is appraised at delivery, the usufructuary must pay
their appraised value at the termination of the usufruct.

If they were not appraised, he must return the same kind and
quality or pay the current price at the expiration of the
usufruct.

Simple loan


K. Extinguishment of usufruct

Article 603. Usufruct is extinguished:

(1) By the death of the usufructuary, unless a contrary
intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the fulfillment of any resolutory condition
provided in the title creating the usufruct;
(3) By merger of the usufruct and ownership in the same
person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting
the usufruct;
(7) By prescription.


1.


Abnormal usufruct

Nature of deterioration In the natural use of things, there
may occur certain defects calling for repairs for their
preservation, independent of the deterioration produced by
age and time which slowly and without appreciable effects
changes the aspect of the things from day to day.

Liability to indemnify:
It is sufficient if the usufructuary returns them in the
condition in which they may have been found at the
time of the expiration of the usufruct.
The law renders the usufructuary liable only when he
causes deterioration by his fraud or negligence.

If usufructuary does not return the things upon the expiration
of the usufruct, he should pay an indemnity equivalent to the
value of the things at the time of such expiration.


9.

Usufruct over consumable property


Article 574. Whenever the usufruct includes things which
cannot be used without being consumed, the usufructuary

Death of usufructuary natural end;


Exceptions:


a.

In multiple usufructs it ends at the death


of the last survivor

Article 611. A usufruct constituted in favor of several persons


living at the time of its constitution shall not be extinguished
until death of the last survivor.


If simultaneously constituted, all the usufructuaries must be
alive (or at least conceived) at the time of constitution.

If successively constituted, (1) if by virtue of donation all the
donees-usufructuaries must be living at the time of the
donation; (2) if by will there should only be 2 successive
usufructuaries and both must have been alive at the time of
testators death.


b.

If the period is fixed by reference to the life


of another or there is a resolutory condition
the right is transmitted to the heirs of the
usfructuary until the expiration of the term
or the fulfillment of the condition.

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Article 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for the
number of years specified, even if the third person should die
before the period expires, unless such usufruct has been
expressly granted only in consideration of the existence of
such person.


A gave B his land in usufruct until C becomes 40yrs. old. A
constituted the usufruct when C was only 20yrs. old. This
means that the usufruct should last for 20yrs even if C dies
before attaining the age of 40. If therefore C dies at the age of
30, the usufruct in Bs favor generally continues.


c.

When a contrary intention clearly appears


A period or a resolutory condition is stipulated, and the
usufructuary dies before the expiration of the period or the
happening of the resolutory condition, is the usufruct
extinguished or must it continue to the end of the period or
the fulfillment of the condition?
1st view: usufruct is personal and it CANNOT be
extended beyond the lifetime of the usufructuary.
(Sanchez Roman and SC)

2nd view: usufruct SUBSISTS and is transmitted to the
heirs of the usufructuary because the will of the
parties must be respected. (Manresa)

3rd view: usufruct will NOT be terminated by the
death of the usufructuary ONLY when it is expressly
stipulated that it shall continue even after such death
until the expiration of the period or the happening of
the condition agreed upon. (Valverde and Scaevola)

2.

Expiration of period or fulfillment of


resolutory condition imposed on usufruct by
person constituting the usufruct


Cases:
The parties called it a barter of their properties, although
they retained the possession of their own respective
properties. The residential lot bartered by one of the parties
was stipulated to be subject to a resolutory condition. Upon
fulfillment of the condition, the party to whom the residential
lot was bartered to sought to reclaim possession over the
land.

The nature of the contract is determined by the law and not
what the parties stipulate. Here, with the material possession
being the only one transferred, all that the parties acquired
was the right of usufruct which in essence is the right to enjoy
the property of another. In this case, the action by the one
reclaiming possession has not yet prescribed because a
usufruct may be constituted by the parties for any period of
time and under such conditions as they may deem convenient
and beneficial subject to the provisions of the CC on Usufruct.
The manner of terminating or extinguishing the right of
usufruct is primarily determined by the stipulations of the

parties which in this case is the happening of the event agreed


upon.

Art, 579 is applied here with the effect that the happening of
the resolutory condition extinguishes the right of usufruct of
the parties and each is entitled to a return of his property.
(Baluran v. Navarro)
www
A Presidential Proclamation gave MSBF usufructuary rights
over a segregated portion (7 has) of NHAs land. MSBF in turn,
leased this portion to BGC (Bulacan Garden). A Memorandum
Order granted NHA to commercialize its property and sell it to
the public. Therefore, NHA asked BGC to vacate the property it
was leasing.

The case is remanded because according to the Presidential
Proclamation, which was the title constituting the usufruct, it
stated that the 7 ha. area to be segregated shall be
determined by a future survey. This meant that MSBF was to
choose the location of the 7 ha. area under its usufruct. Since
in this case, both the NHA and MSBF conducted their own
survey of what the 7 ha. should be, they are now both ordered
to conduct it jointly.

Concerning the rights of BGC, a usufruct may be constituted
for a specified term and under such conditions as the parties
may deem convenient subject to the legal provisions on
usufruct. A usufructuary may lease the object held in usufruct.
Thus, the NGA may not evict BGC if the portion leased to it by
MSBF is within the 7 ha. area held in usufruct by MSBF. The
owner of the property must respect the lease entered into by
the usufructuary so long as the usufruct exists. However, the
NHA has the right to evict BGC if BGC occupied a portion
outside of the 7 ha. area. (NHA v. CA, Bulacan Garden Corp.)

a.

In favor of juridical persons period


cannot exceed 50yrs.

Article 605. Usufruct cannot be constituted in favor of a town,


corporation, or association for more than fifty years. If it has
been constituted, and before the expiration of such period the
town is abandoned, or the corporation or association is
dissolved, the usufruct shall be extinguished by reason
thereof.

b.


Time that may elapse before a 3rd person
attains a certain age, even if the latter dies
before period expires unless granted
only in consideration of his existence


Article 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for the
number of years specified, even if the third person should die
before the period expires, unless such usufruct has been
expressly granted only in consideration of the existence of
such person.

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3.

Merger of rights of usufruct and naked


ownership in one person


H was the usufructuary of land owned by X. x dies, leaving in
his will, the naked ownership of the land to H. the usufruct is
extinguished because now H is both the naked owner and the
usufructuary.


4.

Renunciation of usufruct

Waiver means a voluntary surrender of the rights of the


usufructuary, made by him with intent to so surrender them

Article 608. If the usufructuary shares with the owner the


insurance of the tenement given in usufruct, the former shall,
in case of loss, continue in the enjoyment of the new building,
should one be constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to rebuild.

Should the usufructuary have refused to contribute to the
insurance, the owner insuring the tenement alone, the latter
shall receive the full amount of the insurance indemnity in
case of loss, saving always the right granted to the
usufructuary in the preceding article.

When insurance premium paid by


owner and usufructuary (par. 1)
If owner rebuilds, usufruct
subsists on new building
If owner does not rebuild interest
upon insurance proceeds paid to
usufructuary

ii.

When the insurance taken by the


naked
owner
only
because
usufructuary refuses to contribute to
the premium (par. 2)
Owner entitled to insurance
money (no interest paid to
usufructuary)
If he does not rebuild, usufruct
continues over remaining land
and/or owner may pay interest on
value of both materials and land
(607)
If owner rebuilds, usufruct does
not continue on new building, but
owner must pay interest on value
of land and old materials

iii.

When insurance taken by usufructuary


only depends on value of
usufructuarys insurable interest
Insurance proceeds goes to the
usufructuary
No obligation to rebuild
Usufruct continues on the land
Owner has not share in insurance
proceeds

a.

5.

Limitations
i.
Must be express tacit renunciation is
not sufficient
ii.
Does not need the consent of naked
owner
iii.
If made in fraud of creditors, wiaver
may be rescinded by them through
action under Article 1381 accion
pauliana

Extinction or loss of property
a. If destroyed property is not insured

i.

Article 607. If the usufruct is constituted on immovable


property of which a building forms part, and the latter should
be destroyed in any manner whatsoever, the usufructuary
shall have a right to make use of the land and the materials.

The same rule shall be applied if the usufruct is constituted on
a building only and the same should be destroyed. But in such
a case, if the owner should wish to construct another building,
he shall have a right to occupy the land and to make use of the
materials, being obliged to pay to the usufructuary, during the
continuance of the usufruct, the interest upon the sum
equivalent to the value of the land and of the materials.


i.

ii.

If building forms part of an immovable


under usufruct the usufruct
continues over the land and the
remaining materials
If usufruct is on the building only
If owner does not rebuild,
usufruct continues over the land
and materials (plus interests)
If owner rebuilds, usufructuary
must allow owner to occupy the
land and to make use of materials;
but the owner must pay interest
on the value of both the land and
the materials.


b.

If destroyed property is insured before


termination of the usufruct

6.


Termination of right of person constituting the
usufruct


Ex: usufructs constituted by a vendee a retro terminate upon
redemption

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7.

Prescription

2)


Adverse possession against the owner or the usfructuary.

It is not the non-use which extinguishes the usufruct by
prescription, but the use by a 3rd person.

There can be no prescription as long as the usfructuary
receives the rents from the lease of the property, or he enjoys
the price of the sale of his right.

Covered cases: If 3rd party acquires ownership of thing or
property in usufruct or right of ownership lost through
prescription or right of usufruct not began within prescriptive
period, or if there is a tacit abandonment or non use of thing
held in usufruct for required period.


8.

What do not cause extinguishment of usufruct


a.

Expropriation of thing in usufruct


Article 609. Should the thing in usufruct be expropriated for
public use, the owner shall be obliged either to replace it with
another thing of the same value and of similar conditions, or
to pay the usufructuary the legal interest on the amount of
the indemnity for the whole period of the usufruct. If the
owner chooses the latter alternative, he shall give security for
the payment of the interest.


If naked owner alone was given the indemnity, he has the
option:
1) To replace with equivalent thing
2) Or to pay to the usufructuary legal interest on the
indemnity requires security given by the naked owner
for the payment of the interest

If both the naked owner and the usufructuary were separately
given indemnity, each owns the indemnity given to him, the
usufruct being totally extinguished.

If usufructuary alone was given the indemnity, he must give it
to the naked owner and compel the latter to return either the
interest or to replace the property. He may even deduct the
interest himself, if the naked owner fails to object.

The bad use must cause considerable injury not to the


thing, but to the owner.

Court will determine if theres considerable injury to the naked
owner.


c.

Usufruct over a building


Article 607. If the usufruct is constituted on immovable
property of which a building forms part, and the latter should
be destroyed in any manner whatsoever, the usufructuary
shall have a right to make use of the land and the materials.

The same rule shall be applied if the usufruct is constituted on
a building only and the same should be destroyed. But in such
a case, if the owner should wish to construct another building,
he shall have a right to occupy the land and to make use of the
materials, being obliged to pay to the usufructuary, during the
continuance of the usufruct, the interest upon the sum
equivalent to the value of the land and of the materials. (517)


Article 608. If the usufructuary shares with the owner the
insurance of the tenement given in usufruct, the former shall,
in case of loss, continue in the enjoyment of the new building,
should one be constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to rebuild.

Should the usufructuary have refused to contribute to the
insurance, the owner insuring the tenement alone, the latter
shall receive the full amount of the insurance indemnity in
case of loss, saving always the right granted to the
usufructuary in the preceding article.


b.

Bad use of thing in usufruct


Article 610. A usufruct is not extinguished by bad use of the
thing in usufruct; but if the abuse should cause considerable
injury to the owner, the latter may demand that the thing be
delivered to him, binding himself to pay annually to the
usufructuary the net proceeds of the same, after deducting
the expenses and the compensation which may be allowed
him for its administration.


Effect of bad use:
1) Entitles the owner to demand delivery and administration
of the thing.
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Part 8. Easements of Servitudes



A. Definition

A real right + Burdens a thing with a prestation of determinate
servitudes + for the exclusive enjoyment of one who is NOT an
owner of a tenement

A real right + By virtue of which the owner has to ABSTAIN
from doing or ALLOW somebody else to do something to his
property + for the benefit of another

Encumbrance + Imposed upon an immovable + for the benefit
of another immovable owned by another.

DOMINANT ESTATE: immovable in favor of which the
easement is established (the property which benefits)

SERVIENT ESTATE: immovable that is subject to the easement
(the property which must suffer the said servitude for the
benefit of another)


B. Essential Features of Easements/Real
Servitudes/Paredial Servitudes

1. It is a REAL RIGHT it gives an action in rem or
real action against any possessor of servient
estate

Action in rem: an action against the thing itself, instead of
against the person.

Owner of the dominant estate can file a real action for
enforcement of right to an easement

2.


Possession of the property remains in the servient owner, but
the owner of the dominant estate enjoys a certain benefit.

There exists a limitation on ownership: the dominant owner is
allowed to enjoy or use part of the servient estate, or imposes
on the owner a restriction as to his enjoyment of his own
property.

Use of the easement is also limited.


5.

It creates a relation between tenements


No transfer of ownership, but a relationship is created,


depending on the easement.


6.

It cannot consist in requiring the owner of the


servient estate to do an act (servitus in
faciendo consistere nequit) unless the act is
accessory to a praedial servitude (obligation
propter rem)


Servient owner merely allows something to be done to his
estate.

EXCEPT Praedial servitudes:

JUS TIGNI IMMITENDI: Right to place beams in an adjoining
wall


It is a right enjoyed over another property (jus
in re aliena) it cannot exist in ones property
(nulli res sua servit)


When a dominant and servient estate have the same owner,
an easement is extinguished. Separate ownership is a
prerequisite to an easement.

3.

It is a right constituted over an immovable by


nature (land and buildings), not over
movables. (Article 613)

Immovable: used in its common and not in the legal sense,


meaning only property immovable BY NATURE can have
easements.


4.

It limits the servient owners right of


ownership for the benefit of the dominant
estate. Right of limited use but no right to
possess servient estate. Being an abnormal
llimitation of ownership, it cannot be
presumed.

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JUS ONERIS FERENDI: Right to support a building upon
anothers wall

1)

2)

If servient estate is divided: Easement is not modified,


and each of them must bear it on the part which
corresponds to him.
If dominant estate is divided: Each may use the easement
in its entirety, without changing the place or making it
more burdensome. There arise as many new dominant
tenements as there are parts


11. It has permanence once it attaches, whether
used or not, it continues and may be used at
anytime

Perpetual: exists as long as property exists, unless it is
extinguished.

7.


8.

Generally, it may consist in the owner of the


dominant estate demanding that the owner of
the servient estate refrain from doing
something (servitus in non faciendo) or that the
latter permit that something be done over the
servient property (servitus in patendo), but not
in the right to demand that the owner of the
servient right to demand that the owner of the
servient estate do something (servitus in
faciendo) except if such act is an accessory
obligation to a preadial servitude (obligation
propter rem)
It is inherent or inseparable from estate to
which they actively or passively belong (Article
617)


Easements are merely accessory to the tenements, and a
quality thereof. They cannot exist without tenements.

Such easements exist even if they are not expressly stated or
annotated as an encumbrance of the titles.

9.

It is intransmissible it cannot be alienated


separately from the tenement affected or
benefited


Any alienation of the property covered carries with it the
servitudes affecting said property. But this affects only the
portion of the tenement with the easement, meaning the
portions unaffected can be alienated without the servitude.

10. It is indivisible (Article 618)



Relates only to the portion of the tenement affected by the
servitudes.


C.

Classification of Servitudes
1.

As to recipient of benefits


a.

Real or Praedial


The servitude exists for the benefit of a particular tenement.


b.

Personal


The servitude exists for the benefit of persons without a
dominant tenement.

Note that under Roman Law, usufruct together with usus
habitatio and operae servorum were classified as personal
servitude

USUS HABITATIO: the right to reside in a house

OPERAE SERVORUM: the right to the labor of slaves

2.

As to cause or origin


a.

Legal whether for public use or for the


interest of private persons


Once requisites are satisfied, the owner of the dominant
estate may ask the Court to declare that an easement is
created.

E.g. Natural drainage of waters, Abutment of land, Aqueduct,
etc.


b.

Voluntary


Created by the will of the owners of the estate through
CONTRACT

Created by an owner in A LAST WILL OR TESTAMENT,
DONATION, ETC.

*** There is no such thing as a JUDICIAL EASEMENT. The
Courts cannot create easements, they can only declare the

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existence of one, if it exists by virtue of the law or will of the
parties.


3.

As to its exercise (Article 615)


Important in determining prescription: only continuous and
apparent easements can be created by prescription

a.

Continuous


Use is or may be incessant, without the intervention of any
man


b.

Although some easements seem to impose a positive


prestation upon the owner of the servient estate, in reality,
the primary obligation is still negative.

E.g. Under Article 680: the owner of a tree whose branches
extend over to a neighboring property is required to cut off
the extended branches, but the real essence of the easement
is the obligation NOT TO ALLOW the branches of the tree to
extend beyond the land


Used at intervals, and dependent upon the acts of man.

4.

Apparent


Made known and continually kept in view by external signs
that reveal the use and enjoyment of the same

b.

Non-apparent


Show no external indication of their existence

5.

By the object or obligation imposed (Article


616)


a.

Positive


Imposes upon the owner of the servient estate the obligation
of allowing something to be done, or doing it himself


b.

Negative (prescription starts to run from


service of notarial prohibition)


Prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did not
exist.

E.g. Negative Easement of Light and View: An opening is
made on the wall of the dominant estate, and the easement
consists of imposing upon the servient estate the obligation to
not build anything that would obstruct the light.


D. General Rules relating to Servitudes

1. Nulli res sua servi: No one can have a servitude
over ones own property

2. Servitus in faciendo consistere nequit: A
servitude cannot consist in doing

4.

A servitude must be exercised civiliter in a


way least burdensome to the owner of the land


5. A servitude must have a perpetual cause

Modes of Acquiring Easements

As indication of its existence (Article 615)



a.

Servitus servitutes esse non potes: There can be


no servitude over another servitude

Discontinuous


Also important for purposes of prescription

3.

E.

Case:

The road to the tuba saloon = voluntary easement. May be


closed by owner to all, but no capricious exclusion of a
certain person.

Hacienda owner constructs road for its employees, and made
the road accessible to general public. But employees used the
road to get to a tuba saloon, and would get drunk there. The
hacienda owner then decided to ban the saloon owner from
using the road.

Because the road was voluntarily created as a servitude by the
owner, he may close it at his pleasure. But while the road is
open, he may not capriciously exclude the owner of the tuba
saloon from its use. (North Negros Sugar v. Hidalgo)


1.

By title juridical act which gives rise to the


servitude (e.g. law, donations, contracts or
wills)


Case:
Right of way to Church side door = By prescription.

Parcel of land on the edge of one of the walls of the church is
being claimed by both the municipality and the church. The
municipality was adjudged as owner having performed acts of
ownership over the lot building a flagstaff, a theater,
cockpit, etc.

BUT a right of way had been acquired because the Catholic
faithful used the lot to enter the side door of the Church.

The right to use the lot had been acquired by prescription, in
view of the time that has elapsed since the church was built
and dedicated to religious worship, during which period the
municipality has not prohibited the passage over the land by

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the persons who attend services. (Dumangas v. Bishop of
Jaro)

a.

Article 623: If easement has been acquired


but no proof of existence of easement
available, and easement is one that cannot
be acquired by prescription, then

E.g. by oral contract or missing document.


i.

May be cured by deed of recognition


by owner of servient estate or


- By affidavit or a formal deed acknowledging the servitude

ii.

By final judgment

- Owner of the dominant estate must file a case in Court to


have the easement declared.
- May prove the easement through other evidence e.g.
testimony, photos

b.

Article 624: Existence of an apparent sign


considered a title


Sign indicating the existence of a servitude between
tenements = sufficient title to allow the easement to continue

For purposes of alienation or division in co-ownership, the
easement continues UNLESS:

A contrary stipulation is included in the title of


conveyance, at the time the ownership is divided

Sign of such easement is removed before the execution


of the deed.


Case:

Owner of a camarin and a house situated in adjacent lots


bequeathed said properties to different persons. The house
had 4 windows facing the lot occupied by the camarin thus
enjoying the easement of light and view.

The lot where the camarin stood was however sold to an
owner who wanted to build a two-storey house thereon. The
new owner was however prohibited from doing so, and
mandated to respect the easement.

Four windows = Existence of a sign + No contrary act or
stipulation when ownership passed to another = Equivalent of
title.

No easement existed while the properties were still owned by
the same owner, but upon her death and the transfer to two
different heirs, who accepted the properties but did not
oppose the easement thereon, such easement of light and
view-altius non tollendi was created.

The easement of light and view necessarily goes together with


an easement not to build higher (altius non tollendi). They are
two sides of the same coin. While an easement of light and
view is positive, that of altius non tollendi is negative. (Amor
v. Florentino)

2.

By prescription

REQUISITES:
1) Easement must be continuous and apparent.
2) Easement must have existed for 10 years.
3) NO NEED for good faith or just title.


Case:
Road or passageway from home to the market place was
obstructed by the construction of a chapel.

Although the road had been used for more than 20 years,
since an easement of right of way is a discontinuous
easement, it CANNOT be acquired by prescription because of
the requirement of continuous or uninterrupted possession.

JBL Reyes: The essence of this easement ("servidumbre de
paso") lies in the power of the dominant owner to cross or
traverse the servient tenement without being prevented or
disturbed by its owner.

As a servitude, it is a limitation on the servient owner's rights
of ownership, because it restricts his right to exclude others
from his property. But such limitation exists only when the
dominant owner actually crosser, or passes over the servient
estate; because when he does not, the servient owner's right
of exclusion is perfect and undisturbed.

Since the dominant owner cannot be continually and
uninterruptedly crossing the servient estate, but can do so
only at intervals, the easement is necessarily of an intermittent
or discontinuous nature. (Ronquillo v. Roco)


F.

Rights and Obligations of Owners of dominant and


Servient Estates


1.

Right of owner of dominant estate


Limited Jus Utendi: limited by the nature of the easement
itself

a.

To use the easement and exercise all rights


necessary for the of it


Article 625: Grants the owner of the dominant estate the right
to use the principal easement, and all accessory servitudes.

E.g. Easement of drawing water carries with it the easement
of right of way to the place where water is drawn.

Article 626: Grants the right to use the easement for all the
needs of the dominant estate (if the easement is established
in a general way) or for the purpose because of which it was

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established (e.g. easement to draw water for irrigation,
cannot be used to supply water to a factory).

b.


To do at his expense, all necessary works
for the use and preservation of the
easement


Article 627: Servient owner may make at his own expense any
works necessary for USE and PRESERVATION of the servitude
WITHOUT altering it or rendering it more burdensome.

Necessity of the works determine extent of such works.

Works must be executed in the manner least inconvenient to
the servient owner, who cannot recover indemnity for the
inevitable damages or inconveniences which may be caused
thereby.


c.

In a right of way, to ask for change in


width of easement sufficient for needs


Article 651: The needs of the dominant estate determine the
width of the passage. The servitude may be modified after its
establishment, depending upon the needs of the dominant
tenement.


Case:
Petitioner seeks the widening of the road path through
respondents property, alleging that his plant nursery business
had prospered enough for him to require an automobile.

The Court granted the modification of the easement stating
that under the law, the needs of the dominant property
ultimately determine the width of the passage. And these
needs may vary from time to time. When petitioner started
out as a plant nursery operator, he and his family could easily
make do with a few pushcarts to tow the plants to the
national highway. But the business grew and with it the need
for the use of modern means of conveyance or transport.
Petitioner should not be denied a passageway wide enough to
accomodate his jeepney since that is a reasonable and
necessary aspect of the plant nursery business. (Encarnacion
v. CA)


2.

b.


Article 627(2): Notify the owner of the servient estate before
making repairs and choosing the most convenient time and
manner so as to cause the least inconvenience to the owner of
the servient estate.

c.

Not to alter easement or render it more


burdensome

Article 627: Owner of dominant estate may make repairs at his


expense, but cannot alter the easement or make it more
burdensome.


Case:
Planters of sugar cane established a right of way for the
transportation of the cane to the milling central. Because the
said planters could not deliver the quantity required, the
Central entered into contracts with other planters, but still
used the right of way to transport the additional sugar.

Court allowed Central to use the right of way to transport the
additional sugar. This did not make the easement more
burdensome nor did it alter it. What is prohibited is extending
the road or repairing it or depositing excavations outside the
area. But the additional use produced no such effects.
(Valderama v. North Negros)


d.

To contribute to expenses of works


necessary for use and preservation of
servitude, if there are several dominant
estates, unless he renounces his interest


Article 628: The owners who benefit from a servitude must
contribute to expenses to maintain and preserve such
easement, in proportion to the benefit they respectively
receive, and not in proportion to their value (presumed equal
if there is no proof or agreement to the contrary).

OR he may renounce his share to exempt himself from paying
expenses.

Obligations of the owner of dominant estate


a. To use the easement for benefit of
immovable and in the manner originally
established

Article 626: Right to use the easement for the benefit of the
immovable originally contemplated, and in the manner
originally established.

If established for a particular purpose, the easement cannot
be used for a different one. However, if established in a
general way, without specific purpose, the easement can be
used for all the needs of the dominant estate.

To notify owner of servient before making


repairs and to make repairs in a manner
least inconvenient to servient estate

3.


Rights of owner of servient estate
a.

To retain ownership and use of his


property


Article 630: Servient owner must respect the use of the
servitude, but retains ownership and use the same, in a
manner not affecting the easement.

b.

To change the place and manner of the use


of the easement


Article 629(2): Right to change the place and manner of use

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REQUISITES if change will cause prejudice to the dominant
owner nor impair the use of the servitude:
1) By reason of the place/manner originally assigned, the use
of such easement has become VERY INCONVENIENT to
the owner
2) The easement should prevent him from making any
important works, repairs or improvements thereon
3) Change must be done at his expense
4) He offers another place or manner equally convenient
5) In such a way that no injury is caused by the change to the
owner of the dominant estate or to those who may have
a right to use the easement

But if change will NOT cause prejudice or impair the use of the
easement, the requisites need not be satisfied.


c.

To use the easement


May use the easement but must also contribute
proportionately to the expenses


4.

In legal easements, what may be extinguished through non-


user is only the actual form or manner of the easement.
BUT the right or power to claim the exercise of the legal
servitude does not prescribe.

a.


b.

b.

Not to impair the use of the easement


Article 628(1): Cannot impair, in any manner whatsoever, the


use of the servitude

To contribute proportionately to expenses


if he uses the easement


G. Modes of Extinguishment of Easements

1. Merger must be absolute, perfect and
definite, not merely temporary

Absolute: Ownership of the property must be absolute, thus
not applicable to lease, usufruct, etc.

Perfect: Merger must not be subject to a condition

If the merger is temporary, there is at most a suspension of
the easement, but no extinguishment.

2.

By non-user for 10 years


Owner of dominant estate does not exercise right over
easement.

Inaction, not outright renunciation.

Due to voluntary abstention by the dominant owner, and not
to a fortuitous event

Discontinuous easements counted


from the day they ceased to be used

ii.

Continuous easements counted from


the day an act adverse to the exercise
took place


The use by a co-owner of the dominant
estate bars prescription with respect to
the others


For dominant estates owned in common, if one co-owner
exercises the easement, it inures to the benefit of all the
others and leads to preservation of the easement.


c.


Article 628(2): Must contribute proportionately to expenses.

Corollary to right to use the easement.

i.


An act must be done to prevent the dominant owner from
using the easement.

E.g. in an easement of light and view, the erection of works
obstructing the servitude would commence the period of
prescription

Obligations of the servient estate


a.

Computation of the period

Servitudes not yet exercised cannot be


extinguished by non-user

An easement must have first been used, before it can be


extinguished by inaction.

3.


Extinguishment by impossibility of use

Impossibility referred to must render the entire easement


unusable for all time.

Impossibility of using the easement due to the
condition of the tenements (e.g. flooding) only
suspends the servitude until it can be used again.

If the suspension exceeds 10 years, the easement is
deemed extinguished.


4.

Expiration of the term or fulfillment of


resolutory condition


Only for voluntary easements

5.

Renunciation of the owner of the dominant


estate must be specific, clear, express
(distinguished from non-user)

6.

Redemption agreed upon between the owners

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The servient owner redeems the property from the burden of
the servitude, pursuant to an agreement.

b.


7.

Other causes not mentioned in Article 631


a. Annulment and rescission of the title
constituting the easement


For voluntary easements

b.

2.

Termination of the right of grantor

For voluntary easements


c.

Abandonment of the servient estate

For private legal easements


By agreement of the interested
parties whenever the law does not
prohibit it and no injury is suffered by
a 3rd person
ii.
By the provisions of Chapter 2, title
VII, Book II

Private legal easements provided for by the
NCC
a. Those established for the use of water or
easements relating to waters
i.

i.

Natural drainage of waters

Owner of the servient estate gives up ownership of the


easement (e.g. the strip of land where the right of way is
constituted) in favor of the dominant estate.

The easement is extinguished because ownership is
transferred to the dominant owner, who now owns both
properties.

d.

Eminent domain

The governments power to expropriate property for public


use, subject to the payment of just compensation.


e.

Special cause for extinction of legal rights


of way; if right of way no longer necessary


Article 655: Right of way ceases to be necessary:

1) Owner of the of the dominant estate has joined to
another abutting on a public road

2) A new road is opened giving access to the isolated estate

Requisite: the public highway must substantially meet the
needs of the dominant estate in order that the easement may
be extinguished

= Owner of the servient estate may demand that the
easement be extinguished.

Owner of the servient estate must return indemnity he
received (value of the land)


H. Legal Easements

1. Law governing legal easements

a. For public easements
i.
Special laws and regulations relating
thereto (ex: PD 1067 and PD 705)
ii.
By the provisions of Chapter 2, Title
VII, Book II, NCC

Article 637: Lower estates are obliged to receive waters as


well as stones or earth from higher estates

REQUISITE:
1. Waters must flow naturally, without the intervention of
man

DUTIES:

DOMINANT OWNER (Higher Estate): Cannot construct works
to increase the burden e.g. canals draining other lands into the
lower estate, works which prevent absorption of water like
pavements which make the ground more impervious than it is.

May demand that the servient owner allow him to
make works necessary to remove obstructions
impeding natural passage

SERVIENT OWNER (Lower Estate): Cannot make works which
would impede the servitude e.g. dams which would block the
natural flow, walls, ditches that enclose the tenements.


Can construct works that he may deem necessary to
prevent damage to himself, so long as he foes not
cause damage to inferior tenements


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Case:
Plaintiffs had an easement of natural drainage over
defendants land, but the defendants obstructed the
easement by constructing a dam in 1938. The action to destroy
the dam was filed in 1951, on the theory, among other things,
that the dam was a nuisance and therefore could never be
legalized and that the action could not prescribe.

The action has prescribed. Article 63 is an exception to Article
698. Moreover, granting that the dam was originally a
nuisance, it must have been due to its interference with the
plaintiffs right of drainage; but since that same right of
drainage had become extinct by non-user for 10 years, after
that period, the dam could no longer interfere with
terminated rights and was no longer a nuisance when the
action was instituted in 1951. Moreover, under the law of
nuisance in 1938, while no right to maintain a public nuisance
could be acquired by prescription, the right to maintain a
private nuisance could be acquired by prescription. Since the
defendants prescriptive rights were acquired under said law,
any contradictory rule in the new Code should not be allowed
to operate retroactively to their prejudice. (Ongsiaco v.
Ongsiaco)

ii.

Easements on lands along riverbanks

Article 638:

1. Banks of rivers and streams are subject throughout their
entire length, and within a zone of 3 meters along their
margins to the EASEMENT OF PUBLIC USE in the general
interest of navigation, floatage, fishing and salvage.

2. Estates adjoining banks of navigable or floatable rivers are
subject to the EASEMENT OF TOWPATH for the exclusive
service of river navigation and floatage

If occupation of public lands of private ownership is necessary
= Proper indemnity to be paid


iii.

Abutment of a dam

Article 639: Easement of abutment of a dam may be


established after payment of proper indemnity

REQUISITES:
1)
2)


Construction of dam mecessary for the use of any other
continuous or discontinuous stream
Person who is to construct the dam is NOT the owner of
the banks or lands which must support the dam

Unauthorized construction: no easement has been
previously established, and one of the wings of the dam
occupied the land of another


iv.
Aqueduct:

Arts. 642-646: Any person wishing to use upon his own estate
any water can make it flow through intervening estates + With
obligation to indemnify owners of such estates
Considered as a continuous and apparent easement,
even though the flow of water may not be
continuous

REQUISITES:

1) Dominant owner must prove that:
a) He can dispose of the water
b) Water is sufficient for the use for which it is intended
c) The proposed right of way is the most convenient
and the least onerous to third persons

2) Dominant owner must also indemnify the servient estate
in the manner determined by laws and regulations

3) Dominant owner cannot impose the easement of
aqueduct on buildings, courtyards, annexes, outhouses,
orchards or gardens already existing

Existing structures cannot be injured to establish the
easement.

RIGHT OF SERVIENT OWNER: May fence or build over the
aqueduct in such a manner as not to cause any damage, or
render impossible any necessary repairs and cleanings

v.

Stop lock and sluice gate


Article 646: Construction of a stop lock or sluice gate in the
bed of the stream from which the water is to be taken =
Owners of the banks must permit construction

1) For the purpose of irrigating or improving his estate
2) After payment of damages (including damage caused by
the new easement)


vi.

Drawing waters and watering animals


REQUISITES:
1) Can be imposed only for reasons of public use in favor of
a town or village
2) After payment of proper indemnity

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b.

If right of way is limited to necessary passage for


cultivation of the estate and for gathering crops, without
permanent way = damage caused by encumbrance

The easement of right of way



3)

RULES for establishing the right of way


a) Article 650: Must be established at the point LEAST
prejudicial to the servient estate
i) Insofar as consistent with the first rule, where
the distance from the dominant estate to a
public highway is shortest

E.g. as between a longer way without injury to
the servient estates constructions, etc. and a
shorter way that would cause injury


b)
Article 649:
1)


2)


Who may demand:
a) The owner of the dominant estate
b) Any person with the real right to cultivate or use the
immovable e.g. a usufructuary

BUT a lessee cannot demand such easement, because the
lessor is the one bound to maintain him in the enjoyment
of the property
REQUISITES:
a) Dominant estate is surrounded by other immovables
owned by other persons
b) There must absolutely be no access to a public
highway
c) Even if there is access, it is difficult or dangerous to
use, or grossly insufficient

c)

d)

Article 651: Width of the easement shall be that


which is sufficient for the needs of the dominant
estate
i) Easement may be changed from time to time
depending upon the needs of the dominant
tenement

Article 654: Necessary repairs for a permanent right
of way shall be made by the DOMINANT OWNER.

Article 654: A proportionate share of taxes shall be
reimbursed by the dominant owner to the proprietor
of the servient estate


e)

Article 652: In cases where the dominant estate


needing the right of way is acquired by sale,
exchange or partition + Estate is surrounded by
other estates owned by the vendor, exchanger of
co-owner
i)

Mere inconvenience in the use of an outlet does not


render the easement a necessity.

d)

An adequate outlet is one that is sufficient for the


purpose and needs of the dominant owner, and can
be established at a reasonable expense.

Does not necessarily have to be by land
an outlet through a navigable river if
suitable to the needs of the tenement is
sufficient.

Isolation of the immovable is NOT due to the
dominant owners own acts

ii)

E.g. if he constructs building to others obstructing the old


way
e)

Payment of indemnity

If right of way is permanent and continuous for the needs
of the dominant estate = value of the land + amount of
damage caused to the servient estate

- Grantor receives nothing from the grantee,


therefore no implied condition as to a right of
way is constituted


f)



4)

Vendor, exchanger or co-owner shall grant the


right of way WITHOUT INDEMNITY

- Granting the servitude without indemnity is a
tacit condition of the sale, exchange or
partition: each party receives something

Donor (simple donation) must still be
indemnified for right of way

If the land of the grantor is the one which becomes


isolated, he may demand right of way after paying an
indemnity

EXTINGUISHMENT
a) Extinguished in the following circumstances because
easement ceases to be necessary:
i) Owner has joined the dominant estate to
another abutting the public road
ii) A new road is opened giving access to the
isolated estate

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b)

5)

Extinguishment is NOT automatic. The owner of the


servient estate must ask for such extinguishment

c) Indemnity paid to the servient owner must be
returned:
i) If easement is permanent: value of the land
must be returned
ii) If easement is temporary: nothing to be
returned

SPECIAL RIGHTS OF WAY
a) Article 656: With payment of proper indemnity
i) Right of way to carry materials for the
construction, repair, improvement, alteration or
beautification of a building through the estate
of another
ii)

iii)

Right of way to raise on anothers land


scaffolding or other objects necessary for the
work

Article 657:
(1) Right of way for the passage of livestock
known as animal path, animal trail,
watering places, resting places, animal
folds
-
ANIMAL PATHS shall not exceed in any
case a width of 75 meters
-
ANIMAL TRAILS shall not exceed 37
meters and 50 cm
-
Rights of way for WATERING PLACES
shall not exceed 10 meters
-
Governed by ordinances and
regulations relating thereto, and in the
absence thereof, by the usages and
customs of the place

Cases:
Sari-sari store obstructs the shortest possible route through
the land to the public highway. To avoid the store, the passage
must go through respondents property, where the only
obstruction is the avocado tree.

The Court granted the easement through the respondents
property, a legal easement having met the following
conditions: (a) the dominant estate is surrounded by other
immovables without an adequate outlet to a public highway;
(b) the dominant estate is willing to pay the proper indemnity;
(c) the isolation was not due to the acts of the dominant
estate; and, (d) the right of way being claimed is at a point
least prejudicial to the servient estate

The said easement is to be constituted on respondents
property, even if the same is not the shortest route. The
criterion of least prejudice to the servient estate must prevail
over the criterion of shortest distance although this is a matter
ofjudicial appreciation. While shortest distance may ordinarily
imply least prejudice, it is not always so as when there are
permanent structures obstructing the shortest distance; while
on the other hand, the longest distance may be free of

obstructions and the easiest or most convenient to pass


through. (Quimen v. CA)
www
Plaintiff seeks to enjoin the owner of the adjoining estate from
enclosing their property, as to deprive her of her only access
to the public highway.

Court ruled that the plaintiff cannot claim a right of way,
because:

1. She had another access to the public highway through
another adjoining estate
2. Her isolation was due to her own act of building a fence to
separate her own property
3. She failed to make a valid tender of an indemnity (David
Chan v. CA)
www
La Vista and LGV had a dispute as to whether there was a right
of way constituted for their mutual benefit, via the 15 meter
Mangyan Road in the boundary of their properties.

The Court ruled that based on the contracts entered into by
the predecessors of La Vista and LGV, a voluntary easement of
right-of-way over Mangyan Road was constituted. Like any
other contract, the same could be extinguished only by mutual
agreement or by renunciation of the owner of the dominant
estate.

The fact that LGV had other means of egress to the public
highway cannot extinguish the said easement, being voluntary
and not compulsory. The free ingress and egress along
Mangyan Road created by the voluntary agreement between
the parties is thus legally demandable with the corresponding
duty on the servient estate not to obstruct the same. (La Vista
Association v. CA)
www
Baltazar opposes the establishment of a right of way over her
property, alleging that the respondent had two other
passageways available to him.

The Court found however that the two passageways
mentioned were mere temporary pathways which respondent
Panganiban requested successively from his two neighbors
when petitioner Baltazar closed the passageway through his
property. Because petitioners property offered the shortest
distance from the respondents land to the highway, such
easement could be legally constituted. (Vda. de Baltazar v. CA)
www
Petitioners seek to affirm the existence of a right of way over
respondents property, upon which they appropriated a
passage way and constructed a shed.

The Court ruled that inasmuch as petitioners have an adequate
outlet to a public highway, they have no right to insist on using
a portion of respondents property as pathway and for which
no indemnity was being paid by them.

It was likewise found that the adequate outlet was established
by the original owner precisely for the purpose of ingress and
egress to the properties. Although the way through

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petitioners property is shortest, mere convenience for the
dominant estate is not enough to serve as its basis. To justify
the imposition of this servitude, there must be a real, not a
fictitious or artificial necessity for it. (Spouses Dela Cruz v.
Ramiscal)


c.

The easement of party walls

PARTY WALL
Built by common agreement
by getting land from the
adjoining tenements in equal
parts
Owner may use the wall for
his own exclusive benefit

WALL OWNED IN COMMON


Owned by adjoining owners
from its construction or by
subsequent act

Co-owner cannot use the


wall for his own exclusive
benefit, because he would be
impairing the rights of his co-
owners
Each owner can insert beams
in the wall to the extent of
entire thickness

Each owner may insert beams


but only to the extent of of
its thickness

DETERMINING THE EXISTENCE OF A PARTY WALL


1) PRESUMED in the following situations UNLESS there is a
TITLE or EXTERIOR SIGN or PROOF to the contrary

a) In dividing walls of adjoining buildings, up to the
point of common elevation
b) In dividing walls of gardens or yards, situated in
cities, towns or rural communities
c) In fences, walls and live hedges dividing rural lands
d) Ditches or drains between two estates

2) EXTERIOR SIGNS CONTRARY TO THE EASEMENT OF
PARTY WALL (merely illustrative and not exclusive)

a) A window or opening in the dividing wall of buildings
b) A lower part of the wall slants or projects outward
on one side of the wall, while the other side is
straight and plumb on its facement
c) Entire wall is built WITHIN the boundaries of one of
the estates


Existence of an exterior sign (protrusion) will have to give
way to the fact that the entire party wall is built within the
boundary of one estate.

d) Dividing wall bears the burden of beams, floors and
roof frame of only one of the buildings
e) Dividing wall between courtyards, garden or
tenements is constructed in such a way that the it
sheds water upon only one of the estates
f) Dividing wall has stepping stones which project from
the surface of one side only, but not on the other
g) Lands enclosed by fences or live hedges adjoin
others which are not enclosed


OTHERS NOT ENUMERATED in ARTICLE 659

h) Two adjoining tenements surrounded by live hedges
of different kinds = the hedge must belong to the
owner of the tenement using the same kind of plants
i) For ditches or drains between two estates,
whenever the earth or dirt removed to open or clean
the ditch is only on one side thereof



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CONTRADICTORY SIGNS

1) Contradictory external signs are left to the determination
of the Court, but the quality instead of the number of
signs must prevail. Also, a presumption arising from the
object or purpose of the wall is of more force than that
arising from a doubtful external sign.
2) Title, as an express proof of ownership prevails over an
external sign, which merely gives rise to a presumption

RULES

1) Cost of repairs and construction, maintenance of fences,
hedges, ditches and drains shall be borne by ALL the
owners of the lands or tenements
EXCEPT: if the defects were occasioned only by one
owner

2) An owner may exempt himself from contributing to the
expenses by renouncing his part-ownership, UNLESS the
party wall supports a building he owns

Renunciation refers not only to the wall, but also to the
land on which it is constructed.

3) An owner of a building supported by a party wall who
desires to demolish his building, may also renounce his
part ownership of the wall.

BUT he must still bear the cost of all the repairs and work
necessary to prevent any damage to the party wall.

4) Every owner may increase the height of the wall, at his
own expense and paying for damages caused by the
work.

He must also pay for:

Expenses of maintaining the wall in the part newly
raised, or deepened foundation

Indemnity for increased expenses necessary for the
preservation of the wall by reason of the greater
height or depth which has been given it

Reconstruction expenses in case the party wall
cannot bear the increased height.

If increased thickness is needed, the owner shall
give the space required from his own land

Other owners may acquire part ownership of the
increased height, depth or thickness of the wall, by
paying proportionately the value of the work at the
time of the acquisition, and of the land for its
increased thickness

5) Part-owners may use the party wall IN PROPORTION to
the right he may have in the co-ownership, without

interfering with the common and respective uses of the


others.

E.g. A interest in the wall = payment for expenses =
use as in one can insert beams in the wall up to
thickness

d.

The easement of light and view

NATURE OF THE EASEMENT



1) POSITIVE: Opening a window through a party wall

When a part owner of a party wall opens a window
therein, such act implies the exercise of the right of
ownership by the use of the entire thickness of the wall =
invasion of the right of the other part owners / violation
of the right to proportional use of the party wall.

2) NEGATIVE: Formal prohibition upon the owner of the
adjoining land or tenement

When a person opens a window on his own building, he
does nothing more than exercise an act of ownership on
his property = Does not establish an easement

Coexistent is the right of the owner of the adjacent
property to build on his own land, even if such
structures cover the window

If the adjacent owner does not build structures to
obstruct the window, such is considered mere
tolerance and NOT a waiver of the right to build.

An easement is created only when the owner who opens up a
window prohibits or restrains the adjacent owner from doing
anything, which may tend to cut off or interrupt the light.
DISTANCES

1) Window, apertures, balconies and other projections with
a direct view upon or towards an adjoining land must
have a distance of 2 METERS between the wall and the
contiguous property.

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2)


3)


4)

For structures with a side or oblique view (at an angle


from the boundary line), there should be a distance of 60
centimeters.
Measured from:
a) The outer line of the wall if the openings do not
project
b) The outer line of the openings if they project
c) The dividing line between the two properties in cases
of oblique view
If distances are not complied with:
a) Windows are considered unlawful openings = owner
may be ordered by the Court to close them
Even if the adjoining owner does not object
to the construction of such structures at
first, he cannot be held to be in estoppel.

b) Does not give rise to prescription
Mere opening of the window in violation of
the distances does not give rise to the
easement of light and view by prescription


5)


Owners of a wall (not a party wall) adjoining a tenement
of another can make openings to admit light without
complying with the distance requirements SO LONG AS:
a) Openings are made at the height of the ceiling joists
(horizontal beams) or immediately under the ceiling
b) Size: 30 cm square
c) With iron grating imbedded in the wall
d) With a wire screen

from doing something he could


lawfully do.

THUS, although the action to
compel the closure might have
prescribed, the owner of the
adjoining estate may still build on
his own land a structure which
might obstruct the view.

6)
7)

In buildings separated by a public way or alley, not less


than 3 meters wide, the distances required (2 m, 60 cm)
do not apply.
If an easement is acquired to have direct views, balconies
or belvederes, the owner of the servient estate must not
build at less than 3 meters from the boundary line of the
two tenements.

True servitude, because the servient owner is
prohibited from building at a certain distance.

The distances may be stipulated by the parties,
but should not be less than what is prescribed
by the law (2 meters and 60 cm)


e.

The easement of drainage of buildings


But owner of the adjoining estate can close the
opening if:

a) He acquires part ownership of the party
wall
b) He constructs a building or raises a wall on
his land, unless an easement of light has
been acquired

If requirements are not complied with, the owner of
the adjoining estate may compel the closure of the
opening.
The action to compel the closing of the
opening may prescribe, if the opening is
permitted without protest.
The period begins to run from the
moment such opening is made.

BUT prescription of the action to compel
the closure of the opening DOES NOT
MEAN that the servitude of light and view
has been acquired.
Period of acquisitive prescription
will only start to run from the
time the owner asserting the
servitude has forbidden the
owner of the adjoining tenement



Article 674: Regulating the disposal of rain water
1) Owner of a building is obliged to construct a roof or
covering so as to ensure that the rain water shall fall on
his own land, or on a street or public place, and NOT on
the land of his neighbor.
2) Owner is also obliged to collect the war falling on his own
land so as not to cause damage to adjacent tenements

Rain water is res nullius, and has no owner. This article merely
imposes a limitation on the use of ones property, so that rain
water falling thereon may not cause damage.

Obligation to collect water (#2) is an exception to the rule
requiring lower tenements to receive water flowing from
higher tenements.

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Owner is obliged to provide an outlet for waters
falling upon his land.

Article 675: Owner of tenement subject to the easement of
receiving water falling from roofs may build as to receive the
water upon his own roof, or give it another outlet in
accordance with local ordinances or customs, in a way as not
to cause nuisance or damage to the dominant estate.

Article 676: Easement giving an outlet to the water through
contiguous estates


Requisites:
1) Yard or court of a house is surrounded by other houses
2) Water is collected thereon
3) Not possible to give an outlet through the house itself
4) Establishment of conduit for drainage must be at a point
where egress is easiest and where it will cause the least
damage to the servient estate
5) After payment of proper indemnity

f.

The easement of distance for certain


constructions and plantings


CONSTRUCTIONS may be built only after complying with
prescribed regulations (special laws, ordinances, regulations):
1) Constructions or plantings near fortified places or
fortresses
2) Aqueduct, well, sewer, furnace, forge, chimney, stable,
depository of corrosive substances, machinery, factory
(with dangerous and noxious substances)
Distances must be observed and protective works
necessary for the conditions must be made
3) Trees planted near a tenement or piece of land
In the absence of ordinances or customs of the
place:
TALL TREES: At a distance of at least 2
meters from the dividing line of the estates
SHRUBS/SMALL TREES: At least 50 cm from
the dividing line

If trees are planted at a shorter distance, landowner
may demand that it be uprooted

PLANTINGS ENCROACHING ON ADJOINING ESTATES


1) Branches of any tree extending over a neighboring
estate, garden, etc.

Owner of the adjoining estate has the right to
demand that they be cut off insofar as they may
spread over his property


2) Roots of a neighboring tree which should penetrate into
the land of another

Owner may cut the roots off himself within his
property, even without notice to the owner of the
trees

Roots, by accession are converted into the property
of the owner of the land into which they penetrate.

Also, cutting off the roots will not give the
cutter any benefit, in contrast to cutting off
the branches of a tree.

PRESCRIPTION OF ACTION TO CUT: Period only starts to run
after the owner of the estate has demanded that the owner of
the trees cut off the branches or roots, and the latter refuses.

The fact that the owner does not cut off the trees
only constituted mere tolerance.

3) Fruits naturally falling upon adjacent land belong to the
owner of the land

Not by right of occupation but by principle of
accession.

Owner of the tree retains ownership:
a. If he picks the fruits from the branches
which invade the neighboring tenement
b. If fruits fall on immovables for public use
(not considered as fruits of these
immovables)


g.

The easement against nuisances


Article 682: Every proprietor or possessor of a building or
piece of land is prohibited from committing nuisance through
noise, jarring, offensive odor, smoke, heat, dust, water, glare
and other causes

Noise, heat, jarring, etc. are licit if they produce no injury or
material impairment in the utilization of the neighboring
tenement.
Material impairment depends on the nature and purpose
of the tenement e.g. dwelling house vs. factory.

Degree of annoyance to be tolerated depends on what is
usual for a specific locality.

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Article 683: Factories and shops may be maintained, subject to
zoning, health, police and other laws and regulations.


h.

The easement of lateral and subjacent


support


Article 684: An owner cannot make such excavations as to
deprive any adjacent land or building of sufficient lateral or
subjacent support

LATERAL SUPPORT


Limitation on the right to excavate on his own land: one
cannot excavate so close to an adjoining estate as to deprive it
of natural support and cause it to crumble.

Not necessary that the excavation is made on the lot
immediately adjoining. It is sufficient if the excavation results
in a slide in the plaintiffs property

Owner who makes excavations can either:
1) Observe a sufficient distance to permit the necessary
lateral support of adjoining land
2) Support the latter artificially through walls, etc.

SUBJACENT SUPPORT

The owners of the rights below the surface are burdened with
the easement to refrain from removing such sufficient support
which will protect the surface from subsidence or sinking, and
keep it securely at its original level.

REMEDIES FOR VIOLATION
1) Action for Damages against the one who made the
excavation, whether owner or contractor, etc.

A consequence of the violation of the right of property;
may be recovered by any one who has an interest in the
land which has been injured e.f. one in possession, lessee,
etc.

2) Injunction
Restraining the owner from excavating so as to deprive
the land of natural support

Will prohibit merely any excavation which shall cause the
plaintiffs land to fall away due to withdrawal of support

OTHER RULES:
1) Stipulations or testamentary provisions allowing
excavations that cause danger to adjacent land or
building is VOID.

2) Also applicable to future constructions

3) Any proprietor intending to make any excavation shall
notify all owners of adjacent lands.

Notice must sufficiently inform the adjoining owner of
the nature and extent of the proposed excavation, so as
to enable the owner to take the necessary precautions to
protect his property.

No formal notice is necessary if the adjoining owner
already has actual knowledge of such excavation.

But giving notice does not absolve the excavator from
the duty to exercise reasonable care to avoid injury to
neighbors.


Exists when there is severance of ownership (surface owner
vs. substrata owner) as in mines and tunnels.
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Part. 9 Nuisance

A. Definition

Art. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public
highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

To constitute a nuisance there must be an arbitrary or abusive
use of property or disregard of commonly accepted standards
set by society.

The word nuisance is derived from the French word nuire,
which means injury, hurt or harm. Latin: nocumentum.
Literally, it means annoyance anything that works hurt
or injury.

Legal meaning the term nuisance is applied to that
class of wrongs that arise from the unreasonable and
unwarrantable or unlawful use by a person of his own
property, real or personal, or from his own improper,
indecent, or unlawful personal conduct, working an
obstruction or injury to a right of another, or of the
public,
producing
such
material
annoyance,
inconvenience, discomfort or hurt that the law will
presume a consequent damage.

Contemporary usage:
1) Harm caused
2) That which causes the ham (indecent human
conduct or physical condition of the land)
3) Both

Nuisance v. Trespass:
Nuisance
Trespass
Use of ones own property in
such a manner as to cause
injury to the property or right
or interest of another, and
Direct infringement of
generally results from the
anothers right of property.
commission of an act beyond
the limits of the property
affected.
Injury is consequential
Injury is immediate

Nuisance is distinguished from trespass to realty in that it may
consist of injury to realty or interference with its use or
enjoyment, without entry upon it. (Ex: Damming a stream on
ones own land which causes it to overflow the land of
another)



Nuisance v. Negligence:
Nuisance
Negligence
Whether it was unreasonable Whether the defendants use
for the defendant to act as he
of his property was
did in view of the threatened
unreasonable as to plaintiff,
danger or harm to one in
without regard to
plaintiffs position.
foreseeability of injury.
Liability for the resulting
injury to others regardless of
Liability is based on a want of
the degree of care or skill
proper care
exercised to avoid such
injury.
Principles ordinarily apply
where the cause of action is
Principles ordinarily apply
for continuing harm caused
where the cause of action is
by continuing or recurrent
for harm resulting from one
acts which cause discomfort
act which created an
or annoyance to plaintiff in
unreasonable risk of injury.
the use of his property.

Examples as enumerated under CC:
1) Injury to health Any business, although itself
lawful, which necessarily impregnates large volumes
of the atmosphere with disagreeable, unwholesome
or offensive matter, may become a nuisance to those
occupying adjacent property, in case it is so near, and
the atmosphere is contaminated to such an extent as
substantially to impair the comfort and enjoyment of
adjacent occupants.
To constitute smoke a nuisance, the
annoyance and inconvenience suffered
must be of substantial injury to neighboring
property itself, or such as to interfere
sensibly with its use and enjoyment by
persons of ordinary sensibilities.
2) Dangerous to safety manufacture, storing or
keeping of explosives in large quantities in the
vicinity of dwelling houses or excavation adjoining a
public highway
3) Annoyance to senses slaughterhouses and
cowhide storage vats from which emanated vile and
offensive odors; noise of animals kept in residential
neighborhood
Criterion they are to be judged by the
effect they are calculated to produce upon
ordinary
people
under
normal
circumstances, not by their effect upon the
oversensitive, the fastidious or the sick,
nor, on the other hand, by their effect upon
those who are abnormally indifferent to
such things, or who by long experience
have learned to endure them without
inconvenience.

Inconvenience must be materially
interfering with the ordinary comfort,
physically, of human existence.
4) Shocking to decency bawdy or disorderly house;
building used for either lewdness or of assignation or
prostitution

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5)

B. Classes

Art. 695. Nuisance is either public or private. A public nuisance
affects a community or neighborhood or any considerable
number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal. A private
nuisance is one that is not included in the foregoing definition.


1.

According to Nature (old classification)


a.

Nuisance per se or at law


An act, occupation or structure which is a nuisance at all times
and under any circumstances, regardless of location or
surroundings.

Nuisance in and of itself, without regard to circumstances.

Example: house of ill-fame

b.

Nuisance per accidens or in fact


One that becomes a nuisance by reason of circumstances and
surroundings.

It is not a nuisance by its nature but it may become so by
reason of the locality, surrounding, or the manner in which it is
conducted, managed, etc.

Example: slaughterhouse not a nuisance per se because it is
not unlawful to establish slaughterhouses, which are
necessary for the convenience of the community. But this may
become a nuisance under certain circumstances.

Per se
Per accidens
The wrong is established by
proof of the mere act. It
Proof of the act and its
becomes a nuisance as a
consequences.
matter of law.

2.

places and accordingly constitute public nuisances,


aside from being nuisances per se.

Hinders or impairs the use of property illegal


construction on anothers land
If hindrance is just, authorized and
necessary, it is not a nuisance.

Scope of Injurious Effects


a.

Public


The doing of or the failure to do something that injuriously
affects the safety, health or morals of the public. It causes
hurt, inconvenience or injury to the public, generally, or to
such part of the public as necessarily comes in contact with it.

This is a direct encroachment upon public rights or property
which results injuriously to the public.
Houses constructed on public streets and river beds
obstruct at all times the free use by the public of said

b.

Private


One which violates only private rights and produces damages
to but one or a few persons.

Where a dam was constructed in such a way that one of its
wings rested on the land of another and a portion of the land
of the latter was placed under water as a consequence, the
court allowed the removal of the dam.

Public
Private
Affects the individual or a
Affects the public at large
limited number of individuals
only
Need not affect the whole
community or hurt and injure
all the public. It is sufficient if
it affects the surrounding

community generally or if the
injury is occasioned to such
part of the public as come in
contact with it.

Test is not the number of persons annoyed but the possibility
of annoyance to the public by the invasion of its rights the
fact that it is in a public place and annoying to all who come
within its sphere.

c.
3.

Mixed

Doctrine of Attractive Nuisance


One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract
children in play, and who fails to exercise ordinary care to
prevent children from playing therewith or resorting thereto,
is liable to a child of tender years who is injured thereby, even
if the child is technically a trespasser in the premises.

Basis of liability The attractiveness is an invitation to
children. Safeguards to prevent danger must therefore be set
up.

Example A swimming pool or water tank is not an attractive
nuisance, for while it is attractive, it cannot be a nuisance,
being merely an imitation of the work of nature. (Hidalgo
Enterprises v. Balandan)

C.

Liability in case of nuisance

Art. 696. Every successive owner or possessor of property


who fails or refuses to abate a nuisance in that property
started by a former owner or possessor is liable therefor in the
same manner as the one who created it.

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Liability of creator of nuisance: He who creates a nuisance is
liable for the resulting damages and his liability continues as
long as the nuisance continues.
There must be a breach of some duty on the part of the
person sought to be held liable for damages resulting
from a nuisance before an action will lie against him.

No one is to be held liable for a nuisance which he cannot
himself physically abate without legal action against
another for that purpose.

Where several persons, acting independently, cause
damage by acts which constitute a nuisance, each is liable
for the damage which he has caused or for his
proportionate share of the entire damage.

Liability of transferees: The grantee of land upon which there
exists a nuisance created by his predecessors in title is NOT
responsible therefore merely because he becomes the owner
of the premises, or merely because he permits it to remain.
He shall be liable if he knowingly continues the nuisance.
Generally, he is not liable for continuing it in its original
form, unless he has been notified of its existence and
requested to remove it, or has actual knowledge that it is
a nuisance and injurious to the rights of others.

Nature of liability: All persons who participate in the creation
or maintenance of a nuisance are jointly and severally liable for
the injury done.
If 2 or more persons who create or maintain the nuisance
act entirely independent of one another, and without any
community of interest, concert of action, or common
design, each is liable only so far as his acts contribute to
the injury.

For joint liability, there must be some joint or concurrent
act or community of action or duty, or the several
wrongful acts done at several times must have concurred
in their effects as one single act to produce the injury
complained of.

Art. 697. The abatement of a nuisance does not preclude the
right of any person injured to recover damages for its past
existence.

Abatement and damages are cumulative remedies.

Art. 698. Lapse of time cannot legalize any nuisance, whether
public or private.

No prescription prescription cannot establish a right to
maintain a public nuisance.

The action to abate a public or private nuisance is NOT
extinguished by prescription. (Art. 1143[2])
Exception: 698 and 1143(2) do not apply to easements
which are extinguished by obstruction and non-user for
10yrs. (Art. 631).

D. Regulation of nuisances

Art. 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local ordinance:
or
(2) A civil action; or
(3) Abatement, without judicial proceedings.

Criminal prosecution: Only for a public nuisance, not for a
private one.
Public nuisances are offenses against the State, and
since early times it has been held that one who is
responsible for this may be proceeded against
criminally by indictment.

Question of intent is immaterial.

Persons liable person is liable for the consequence
which his act produced

Civil action:
1) Judgment with abatement defendant convicted of
maintain a nuisance may also be ordered to abate
the nuisance
2) Injunction where the injury occasioned by an
indictable nuisance is pressing or imminent, so that
the public safety is menaced or public rights are
obstructed or interfered with, and the special
circumstances are such that the ordinary process of
the court is not sufficiently prompt or effective to
prevent the injury or obstruction, the remedy can be
injunction provided the right is clear and the wrong
has not been acquiesced in by the plaintiff.

Extrajudicial abatement: This right is based upon necessity
which must be present to justify its exercise.
It must be reasonably and efficiently exercised,
means employed must not be unduly oppressive on
individuals, and no more injury must be done to the
property or rights of individuals than is necessary to
accomplish the abatement.

No right to compensation if property taken or
destroyed is a nuisance.

Art. 700. The district health officer shall take care that one or
all of the remedies against a public nuisance are availed of.

Art. 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.

Art. 702. The district health officer shall determine whether or
not abatement, without judicial proceedings, is the best
remedy against a public nuisance.

Art. 703. A private person may file an action on account of a
public nuisance, if it is specially injurious to himself.

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General rule: Individual has no right of action against a public
nuisance. The abatement proceedings must be instituted in
the name of the State or its representatives.

Except: An individual who has suffered some special damage
different from that sustained by the general public, may
maintain a suit in equity for an injunction to abate it, or an
action for damages which he has sustained.
Action becomes a tort if an individual has suffered
particular harm, in which case the nuisance is treated
as a private nuisance with respect to such person.

Art. 704. Any private person may abate a public nuisance
which is specially injurious to him by removing, or if necessary,
by destroying the thing which constitutes the same, without
committing a breach of the peace, or doing unnecessary
injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health
officer and executed with the assistance of the local police;
and
(4) That the value of the destruction does not exceed three
thousand pesos.

Requisites of the right of a private individual to abate a public
nuisance:
1) The right must be exercised only in cases of urgent
or extreme necessity. The thing alleged to be a
nuisance must be existing at the time that it was
alleged to be a nuisance.
2) Summary abatement must be resorted to within a
reasonable time after knowledge of the nuisance is
acquired or should have been acquired by the person
entitled to abate.
3) Person who has the right to abate must give a
reasonable notice of his intention to do so, and allow
thereafter a reasonable time to enable the other to
abate the nuisance himself.
4) Means employed must reasonable and for any
unnecessary damage or force, the actor will be liable.
Right to abate is not greater than the necessity of
the case and is limited to the removal of only so
much of the objectionable thing as actually causes
the nuisance.
5) Abatement must be approved by the district health
officer.
6) Property must not be destroyed unless it is
absolutely necessary to do so.
7) Right must always be exercised with the assistance
of local police so as not to disturb the public peace.

Art. 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.

Action for damages: Recovery is limited to the damage
occasioned up to the time of the commencement of the
action.

If nuisance continues to the time of trial, then


damages shall be computed from that time.

If nuisance is permanent, a single action is enough to
cover both past and prospective damages. If
temporary or recurrent, each repetition of it gives
rise to a new cause of action and successive actions
will lie.


Defenses to action:
1) Public necessity private interest must yield to the
public good; creation of nuisance amounts to taking
of property therefore just compensation must be
made.
2) Estoppel one who voluntarily places himself in a
situation whereby he suffers an injury will not be
heard to say that his damage is due to a nuisance
maintained by another.
3) Non-existence of the nuisance
4) Impossibility of abatement

Art. 706. Any person injured by a private nuisance may abate it
by removing, or if necessary, by destroying the thing which
constitutes the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is
indispensable that the procedure for extrajudicial abatement
of a public nuisance by a private person be followed.

Art. 707. A private person or a public official extrajudicially
abating a nuisance shall be liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to be
not a real nuisance.

Remedies of property owner: A person whose property is
seized or destroyed as a nuisance may resort to the courts to
determine w/n it was in fact a nuisance.
1) Action for replevin
2) Enjoin the sale or destruction of the property
3) Action for the proceeds of its sale and damages if it
has been sold
4) Enjoin private parties from proceeding to abate a
supposed nuisance

Liability of person abating: Whoever abates an alleged
nuisance and thus destroys or injures private property, or
interferes with private rights, whether a public officer or
private person, unless he acts under the order of a court
having jurisdiction, does so at his peril.

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Part 10. Modes of Acquiring Ownership



Article 712. Ownership is acquired by occupation and by
intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by law, by donation, by testate and intestate
succession, and in consequence of certain contracts, by
tradition.
They may also be acquired by means of prescription.

The theory of Mode and Title in acquiring ownership or real
rights emphasizes the distinction between the right to a thing
and actual ownership or real right over it. To give rise to
ownership or a real right, it is not enough that there be a right
or claim to the same, however justified; that right or title,
arising from a juridical act, must be completed by fulfilling
certain conditions imposed by law. Hence, ownership or real
rights are acquired only pursuant to a legal process or mode.

Mode and Title Differentiated


Mode of acquiring ownership and other real right is a specific
cause which produces dominion and other real rights as a
result of the co-existence of special status of things, capacity
and intention of persons and fulfillment of the requisites of
law.

Title is every juridical right which gives a means to the
acquisition of real rights but in itself is insufficient to produce
them.

Title is the remote cause, and mode the proximate cause, of
acquisition. Hence, the contract of sale is title, and tradition is
the mode. Ownership is not transferred by contract merely
but by tradition or delivery. Contracts only constitute titles or
rights to transfer or acquisition of ownership, while delivery is
the mode accomplishing the same. Thus in a contract of sale,
ownership is not transferred until the property is delivered
and the purchaser has take possession of the same.

Mode v. Title
Mode
Title
Serves merely to give the
Directly and immediately
occasion for its acquisition or
produces a real right
existence
Cause
Means
Proximate cause
Remote cause
Essence of the right which is
Means whereby that
to be created or transmitted
essence is transmitted

Extinction of Ownership and Real Rights:


The Code does not contain any systematic doctrine on the loss
of ownership. Most authors classify the modes of losing
ownership into voluntary and involuntary.

According to Sanchez Roman:

Voluntary modes: abandonment; alienation


Involuntary modes: total loss of the thing, accession

continua, rescissory actions, judicial decree, and


operation of law.

According to other authors:
Absolute extinguishment: material loss of the thing;
juridical loss of the thing (when it goes out of
commerce); expropriation by public use.

Relative extinguishment: by law (accession,
prescription, confiscation); by act of man combined
with law (legal redemption, abandonment, tradition,
rescission, nullity and revocation)

Special causes of extinguishment of certain real
rights: usufruct; easement; possession

Abandonment renunciation of real rights, and requires legal
capacity of the subject and intent to renounce the right. It is a
unilateral act and requires no formalities.

Note: If personal property is abandoned, it becomes
res nullius and may be acquired by occupation.

Alienation the transfer of ownership to another person. It
may be mortis causa (deathbed gift) or inter vivos (transfer by
agreement between living people), and may be onerous or
gratuitous.

Loss of the thing this may occur either by the total physical
destruction of the thing, or by its juridical loss when it ceases
to be the object of private ownership
e.g. when a thing goes out of commerce

Rescissory actions annulment, rescission or revocation of an
act
e.g. revocation of donation by reason of ingratitude

Judicial decree by decision of the courts; according to
Tolentino, this mode is not really distinct from other modes of
extinguishing ownership because the decision of the courts do
not create or extinguish rights but only declare their existence
or non-existence.

Operation of law prescription and acts of the State.
Acts of the State include confiscation of the effects
and instruments of crime, the requisition of property
in times of war, and expropriation for public use.

Modes of Acquiring Ownership


A. Original Modes

Original modes of acquisition are those which produce the
acquisition of ownership independent of any preexisting right
of another person, hence, free from burdens or
encumbrances.
Note: according to Tolentino, an original mode of
acquiring ownership that is not mentioned in the
Code is work. This is broader than intellectual
creation.

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1. Occupation

Article 713. Things appropriable by nature which are without
an owner, such as animals that are the object of hunting and
fishing, hidden treasure and abandoned movables, are
acquired by occupation.

Occupation is the mode of acquiring ownership by
apprehension of a corporeal thing which has no owner, by a
person having capacity for the purpose, with intent to
appropriate it as his, and according to the rules established by
law.

It is taking possession which by itself confers ownership.

It is limited to things without an owner and cannot be asserted
as a mode of acquiring ownership of things owned by
someone else. When the thing has already been abandoned by
its owner, it becomes res nullius and may be acquired by
occupation.
The thing is considered abandoned when the spes
recuperandi (hope of recovery) is gone and the
animo revertendi (intention to return) has been given
up by the owner.

Requisites of occupation:
1) Corporeal personal property
2) Property susceptible of appropriation not res
communes
3) Seizure with intent to appropriate
4) No owner (res nullius) or abandoned property (res
derelict)
5) Observance of conditions prescribed by law


Ways by which occupation may be effected:
1) By hunting and fishing;
2) By finding of movables which never had an owner;
3) By finding of movables which have been abandoned by
the owner;
4) By finding of hidden treasure.

Kinds of occupation:
1) Of animals
a) Wild or feral animals roaming free in their natural
state, suffering contract with man only by
compulsion
i) Seizure (hunting or fishing) in open season
ii) By means not prohibited (like poison or
explosives)
b) Tamed or domesticated animals wild by nature but
have become accustomed to man
i) General rule: they belong to the tamer, but
upon recovering freedom are susceptible to
occupation unless claimed within 20 days from
seizure by another (Art. 716)
ii) Special rules:
(1) Pigeons and fish which pass (voluntarily)
from their breeding place to another
belonging to a different owner, belong to

2)

the latter unless enticed by trickery or


fraud (Art. 217)
(2) Swarms of bees are lost to the owner and
are acquirable by occupation if the previous
owner does not pursue them (or abandons
pursuit) for two consecutive days (Art. 716)
(a) The owner may pursue them into the
enclosed estates of another but must
indemnify the latter for damage (Art.
716)
(b) The pursuer must ask the consent of
the owner of the enclosed estates to
enter the same
(c) After the expiration of two days from
cassation of pursuit, the bees belong
to one who caught and kept them.
c) Tame or domestic animals ordinarily born and
reared under mans control, including tamed animals
accustomed to return (Art. 560)
i) These are not acquired by occupation except
when abandoned. The owner may claim them
from the finder, barring prescription, or special
laws (on stray animals). Otherwise Art. 719 is
applied.
Other personal property
a) Abandoned may be acquired by occupation
b) Lost not known to be abandoned (Art. 719)
i) If the former possessor is known, the finder
must restore the thing to him.
ii) If the former possessor is not known:
(1) The finder must deposit the thing with the
mayor of the town where the finding took
place.
(2) The mayor must advertise the finding for
two consecutive weeks in the manner he
deems best.
(a) If the thing is deteriorable or
expensive to keep, it shall be sold at
auction 8 days after publication and
the price deposited.
(b) If not deteriorable, the thing must be
preserved.
(3) If the owner does not claim within 6
months from the last publication, the thing
shall be awarded to the finder.
If the owner appears, he recovers the
thing, paying reward to the finder, on the
basis of 1/10 of the price, plus costs. But the
owner may abandon the thing in favor of
the finder.
iii) The finder who does not follow the above
procedure commits theft and cannot acquire
the thing by prescription, even if extraordinary.
(Art. 1133)
iv) Lost property must be distinguished from
abandoned property, where the owners waiver
of his rights is known or manifest.
v) Marine salvage is governed by special law (Act
No. 2616)
c) Hidden treasure the law grants

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i)
ii)

d)
e)

To the finder: by occupation


To the landowner: by accession (Art. 718)
(1) Except: in case of persons married under
the CPG system, when the share, as finder
or as owner, goes to the partnership (Art.
154)
Marine products (shells, plants, etc.) these belong
to the first occupant, when cast ashore. Otherwise,
apply fishing laws.
Jetsam things (not marine products) cast into the
sea.
i) Kinds:
(1) Ligan resting at the bottom of the sea
(a) Lying under the open sea these will
belong to the finder or salvor
(b) Lying under territorial waters the
rules on sharing will be governed by
the Salvage Law (Act 2616)
(2) Flotsam floating on the surface these
belong to the State; but the rule is without
prejudice to salvage rights
(3) Wreck cast ashore these have to be
deposited with the authorities in
accordance with Art. 719.

a. Not applicable to ownership of a piece


of land

Article 714. The ownership of a piece of land cannot be
acquired by occupation.

When land is without an owner, it pertains to the State.
Therefore, it cannot be acquired by occupation.

Article 714 makes no distinction between land that from the
beginning had no owner, and land which has been under
private ownership but later abandoned. In both cases, the
land cannot be acquired by occupation.
Note: Tolentino said that this provision was
borrowed from the Argentine/ French, Chile, and
Soviet Codes that likewise provide that abandoned
property belong to the State. In our jurisdiction,
however, no law provides that abandoned lands
revert or belong to the state. Abandonment is a
mere relinquishment of right; not a transfer of
dominion to the State, there being no law providing
for such transfer. Abandonment is a unilateral act of
disposition which merely converts the land into res
nullius. If the present article is to be applied literally,
then such abandoned land cannot be acquired by
anyone, even by the State, by occupation. The logical
effect, therefore, of a literal application of this
misplaced provision, a product of indiscriminate
copying from foreign sources, is that abandoned
lands will forever remain res nullius. Tolentino said
that the present provision should be limited to lands
belonging to the State.

b. Privilege to hunt and fish regulated by


special law

Article 715. The right to hunt and to fish is regulated by special
laws.


The legislature may prohibit the killing of game during certain
seasons, and a license may be required for hunting during the
open season.


c.

Occupation of a swarm of bees or


domesticated animals


Article 716. The owner of a swarm of bees shall have a right to
pursue them to anothers land, indemnifying the possessor of
the latter for the damage. If the owner has not pursued the
swarm, or ceases to do so within two consecutive days, the
possessor of the land may occupy or retain the same. The
twenty days to be counted from their occupation by another
person. This period having expired, they shall pertain to him
who has caught and kept them.


Article 560. Wild animals are possessed only while they are
under one's control; domesticated or tamed animals are
considered domestic or tame if they retain the habit of
returning to the premises of the possessor.


The provisions concerning domesticated animals refer to
animals that have been abandoned and have been taken into
possession by another in default of the lawful possessor.
Hence, it cannot apply when the animals have been delivered
to the custody of another.

Domesticated animals are those which were originally wild,
but have been captured, tamed and accustomed to people.
They belong to those who captured and tamed
them.
If they escape and regain their original state of
freedom, they will cease to belong to their former
owners.
If they have been caught by another, the former
owner may still recover them within twenty days.

Domestic or tame animals are those born and ordinarily raised
under the care of people. They are subject to the rules of law
on ordinary movable property, and they are not susceptible of
occupation unless they are abandoned by their owners.


d. Pigeons and fish

Article 717. Pigeons and fish which from their respective
breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not been
enticed by some artifice or fraud.

The pigeons and fish must pass from their breeding place to
another breeding place belonging to a different owner. Since

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the law considers such animals as part of the immovable
where the breeding place is located (Art. 415, par. 6), they
become property of the owner of the breeding place to which
they have transferred.

e. Hidden treasure

Article 718. He who by chance discovers hidden treasure in
anothers property shall have the right granted him in article
438 of this Code.


Article 438. Hidden treasure belongs to the owner of the land,
building, or other property on which it is found.

Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.

If the things found be of interest to science or the arts, the
State may acquire them at their just price, which shall be
divided in conformity with the rule stated.


Article 439. By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry, or other
precious objects, the lawful ownership of which does not
appear.


f.

Lost movables; procedure after finding


lost movables


Article 719. Whoever finds a movable, which is not treasure,
must return it to its previous possessor. If the latter is
unknown, the finder shall immediately deposit it with the
mayor of the city or municipality where the finding has taken
place.

The finding shall be publicly announced by the mayor for two
consecutive weeks in the way he deems best.

If the movable cannot be kept without deterioration, or
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the publication.

Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be
awarded to the finder. The finder and the owner shall be
obliged, as the case may be, to reimburse the expenses.


Article 720. If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-tenth of the sum
or of the price of the thing found.

Lost things are those which are without a possessor, but are
not res nullius.

Any person who, having found lost property, shall fail to
deliver the same to the local authorities or its owner, commits
the crime of theft. A finder of lost property, therefore, can be
charged with theft when he knows or learns who the owner is
and still continues to retain the thing or appropriates it, with
intent to gain.

The finder may incur expenses in trying to locate the owner or
in preserving the thing until its return to the latter. The law is
silent on his right to recover the expenses. Tolentino said that
there may be reimbursement of the expenses, aside from the
reward to the finder, so long as these are reasonably
necessary. The finder should not be penalized for his honesty
and for his desire to avoid loss to the owner. The principle of
agency and of negotiorum gestio can be applied.

2. Intellectual Creation

Article 721. By intellectual creation, the following persons
acquire ownership:

(1) The author with regard to his literary, dramatic, historical,
legal, philosophical, scientific or other work;

(2) The composer; as to his musical composition;

(3) The painter, sculptor, or other artist, with respect to the
product of his art;

(4) The scientist or technologist or any other person with
regard to his discovery or invention.


Article 722. The author and the composer, mentioned in Nos. 1
and 2 of the preceding article, shall have the ownership of
their creations even before the publication of the same. Once
their works are published, their rights are governed by the
Copyright laws.

The painter, sculptor or other artist shall have dominion over
the product of his art even before it is copyrighted.

The scientist or technologist has the ownership of his
discovery or invention even before it is patented.


Article 723. Letters and other private communications in
writing are owned by the person to whom they are addressed
and delivered, but they cannot be published or disseminated
without the consent of the writer or his heirs. However, the
court may authorize their publication or dissemination if the
public good or the interest of justice so requires.


Article 724. Special laws govern copyright and patent.

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The 1987 Constitution, Section 13 and 15, Article XIV,
recognizes the exclusive rights of gifted citizens to their
intellectual property and creations.

1987 Constitution. Article XIV
Section 13. The State shall protect and secure the exclusive
rights of scientists, inventors, artists and other gifted citizens
to their intellectual property and creations, particularly when
beneficial to the people, for such period as may be provided
by law.


Section 15. Arts and letters shall enjoy the patronage of the
State. The State shall conserve, promote, and popularize the
nations historical and cultural heritage and resources, as well
as artistic creations.

Significance of the protection according to the Supreme
Court:
If the author of the book, after its publication, cannot prevent
its reproduction by any person who may want to reproduce it,
then the property granted to him is reduced to a very
insignificant thing and effort made in the publication of the
book is in no way rewarded.

Ownership over works is recognized even before publication,
copyrighting and patenting (Article 722):
The author or composer shall have ownership of their
creations even before they are published. The painter, the
sculptor, or other artist has ownership of the products of his
artistic works even before they are copyrighted. The scientist
or technologist has the ownership of his discovery or
invention even before it is patented.

Dual interests in letters and other private communication in
writing (Article 723):
1) From the viewpoint of the sender or writer the
intellectual property consists in the ideas and thoughts
expressed therein. The sender or writer is the owner of
these thoughts or ideas. He retains his ownership over
them and can have them published even without the
consent of the recipient.
2) From the viewpoint of the recipient the paper or
material used where the writing was impressed or done,
pertains in ownership to the recipient. The recipient can
destroy the letter if he wants to without the knowledge
and consent of the writer for he is under no obligation to
keep and preserve it for the writer. If he loses it, he can
recover it from the finder or possessor, just like any lost
personalty, even from the sender himself.

Special law that govern copyright and patent (Article 724):
RA8293 Intellectual Property Code of 1997





Intellectual Property Rights:


a. Copyright and related rights

A copyright is an intangible, incorporeal right granted by
statute to the author or originator of certain literary or artistic
productions, whereby he is invested, for a specific period, with
the sole and exclusive privilege of multiplying copies of the
same and publishing and selling them.

Purpose of the law: The purpose of the copyright law is not so
much to protect and control any visible thing as it is to secure
a limited monopoly of the right to publish the production
which is the result of the authors thought and to make known
this right to the public. In other words, the law recognizes
artistic or literary productions not only in respect of ownership
of the thing created, but also in respect of the intangible
estate arising from the privilege of publishing and selling to
others copies of the thing produced.

Kinds:
1) Common law copyright right of the author to prohibit
publication of his works without his authority or consent.
These embrace literary works, including private
correspondence. But if the work is unqualifiedly released
to the public, without securing statutory copyright, it
becomes public property.
2) Statutory copyright monopoly in:
a) Publication, printing, sale and reproduction of the
authors intellectual creations;
b) Translations, arrangements, and adaptations;
c) Exhibitions, performances, reproductions;
d) Other lawful uses including radio broadcasts.
3) In private correspondence, distinguish the authors
copyright from ownership of the corpus of the letter,
which is like any movable.

Laws on copyright:
1) The law of January 10, 1879 on Intellectual Property
2) Act 3134, as amended by RA 167

No copyright may be obtained on:
1) Works on the public domain
2) Official documents
3) Speeches, lectures, dissertations in courts, administrative
tribunals, assemblies and public meetings
4) Immoral or unchaste works

Procedure of procuring copyright:
1) Application with an affidavit as to the date of publication
2) Deposit of two complete copies
3) Publication with notice of the copyright (copyright, name,
date) or notice of reserved publication
Note: absent of notice renders an infringement
innocent

Rules on copyright ownership:
1) In the case of original literary and artistic works, copyright
shall belong to the author of the work.
2) In the case of works of joint ownership, the co-authors
shall be the original owners of the copyright and in the

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3)

4)

5)

6)

absence of agreement, their rights shall be governed by


the rules on co-ownership. If, however, a work of joint
authorship consists of parts that can be used separately
and the author of each part can be identified, the author
of each part shall be the original owner of the copyright in
the part that he has created.
In the case of work created by an author during and in the
course of his employment, the copyright shall belong to:
a) The employee, if the creation of the object of
copyright is not a part of his regular duties even if
the employee uses the time, facilities and materials
of the employer.
b) The employer, if the work is the result of the
performance of his regularly-assogned duties, unless
there is an agreement, express or implied, to the
contrary.
In the case of a work commissioned by a person other
than an employer of the author and who pays for it and
the work is made in pursuance of the commission, the
person who so commissioned the work shall have
ownership of the work, but the copyright thereto shall
remain with the creator, unless there is a written situation
to the contrary.
In the case of audiovisual work, the copyright shall belong
to the producer, the author of the scenario, the composer
of the music, the film director, and the author of the work
so adapted. However, subject to contrary or other
stipulations among the creators, the producer shall
exercise the copyright to an extent required for the
exhibition of the work in any manner, except for the right
to collect performing license fees for the performance of
musical compositions, with or without words, which are
incorporated into the work.
In respect of letters, the copyright shall belong to the
writer subject to the provisions of Article 723 of the Civil
Code.


The protection lasts for 30 years renewable for another 30
years. In case of serial publications, 40 years from the
publication of the 1st volume, renewable for an equal period.

Remedies for infringement:
1) Injunction
2) Actual damages or damages not less than 200 nor more
than 10,000.00

Foreign copyrights: registration may be had on the basis of
reciprocity.

Copyrights are not subject to levy or attachment.

b. Trademarks, trade-names and service


marks

Definitions under the Trademark Law (RA 166):
Trademark includes any word, name, symbol, emblem, sign
or device or any combination thereof adopted and used by a
manufacturer or merchant to identify his goods and
distinguish them from those manufactured, sold or dealt in by
others.

Trade-name includes individual names and surnames, firm


names, trade-names, devices or words used by manufacturers,
industrialists, merchants, agriculturists, and others to identify
their business, vocations or occupations; the names and titles
lawfully adopted and used by natural or juridical persons,
unions, and any manufacturing industrial, commercial,
agricultural or other organizations engaged in trade or
commerce.

Service mark means a mark used in the sale or advertising of
services to identify the services of one person and distinguish
them from the services of others and includes without
limitation the marks, names, symbols, titles, designations,
slogans, character names, and distinctive features of radio and
other advertising.

The Intellectual Property Code provides the following
definition of the aforementioned terms:
Mark any visible sign capable of distinguishing the goods
(trademark) or services (service mark) of an enterprise and
shall include a stamped or marked container of goods.

Trade-name the name or designation identifying or
distinguishing an enterprise.

The function of a trademark is to point distinctively, either by
its own meaning or by association, to the origin or ownership
of the wares to which it is applied.

When a trademark or trade-name is duly registered in the
Bureau of Trademark under the Intellectual Property Office, it
shall pertain in ownership to the person or juridical entity
which registered it.

Trademark and Trade-name, distinguished:
A trademark is generally described as a sign, device or mark by
which articles produced or dealt in by a particular person or
organization are distinguished or distinguishable from those
produced or dealt in by others, and must be affixed to the
goods or articles.
A trade-name is descriptive of the manufacturer or dealer
himself as much as his own name is, and frequently includes
the name of the place where the business is located. It
involves the individuality of the maker or dealer for protection
in trade, and to avoid confusion in business, and to secure the
advantages of a good reputation. It is more popularly applied
to the goodwill of a business and need not be affixed to the
goods sold.
Goodwill means reputation for competence,
honesty, and fair-dealing and its value is in attracting
customers.

Determination of infringement of trademark Test of
Dominancy:
If the competing trademark contains the main or essential or
dominant features of another, and confusion and deception is
likely to result, infringement takes place.
Infringement of a trademark is shown by a comparison of the
trademark with the alleged infringing trademark, and a
demonstration of resemblance between the two such as

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would likely to cause the one mark to be mistaken for the
other.

What constitutes infringement under the Intellectual
Property Code (Section 155):
1) Use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark or the same
container or a dominant feature thereof in connection
with the sale, offering for sale, distribution, advertising of
any goods or services including other preparatory steps
necessary to carry out the sale of any goods or services
on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; or
2) Reproduce, counterfeit, copy or colorably imitate a
registered mark or a dominant feature thereof and apply
such reproduction, counterfeit, copy or colorable
imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering
for sale, distribution, or advertising of goods or services
on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive, shall be
liable in a civil action for infringement by the registrant
for the remedies hereinafter set forth: Provided, That the
infringement takes place at the moment any of the acts
stated in Subsection 155.1 or this subsection are
committed regardless of whether there is actual sale of
goods or services using the infringing material.

c.

Geographic indications of origin


False designation of origin or false description or
representation is punishable under the RPC, Article 189.

False Designations of Origin; False Description or
Representation. -

169.1. Any person who, on or in connection with any goods or
services, or any container for goods, uses in commerce any
word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of
fact, which:

(a)
Is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship,
or approval of his or her goods, services, or commercial
activities by another person; or

(b)
In commercial advertising or promotion,
misrepresents the nature, characteristics, qualities, or
geographic origin of his or her or another person's goods,
services, or commercial activities, shall be liable to a civil
action for damages and injunction provided in Sections 156
and 157 of this Act by any person who believes that he or she is
or is likely to be damaged by such act.

169.2. Any goods marked or labelled in contravention of
the provisions of this Section shall not be imported into the

Philippines or admitted entry at any customhouse of the


Philippines. The owner, importer, or consignee of goods
refused entry at any customhouse under this section may have
any recourse under the customs revenue laws or may have the
remedy given by this Act in cases involving goods refused
entry or seized.

Example of false designation of origin: where the accused
caused to be affixed in the labels of the bottle containers of
the food seasoning a designation of origin that the said food
seasoning was packed by Chams Products Co. of San
Francisco, California, when in truth it was packed in the
Philippines.

d. Industrial designs

An industrial design is any composition of lines or colors or any
three-dimensional form, whether or not associated with lines
or colors: Provided, that such composition or form gives a
special appearance to and can serve as pattern for an
industrial product or handicraft.


e. Patents

A patent is an exclusive right to an invention granted to a
patentee, his heirs or assigns for the term thereof.

Patentable invention any technical solution of a problem in
any field of human activity which is new, involves an inventive
step and is industrially applicable shall be patentable. It may
be, or may relate to, a product, or process, or an improvement
of any of the foregoing.

Essential elements of an invention to be patentable: To be
called an invention, an object must possess the essential
elements of novelty, originality and precedence.

Novelty An invention shall not be considered new if
it forms part of a prior art

Prior art it shall consist of:
i) Everything which has been made available to
the public everywhere in the world, before the
filing date or the priority date of the application
claiming the invention;
ii) The whole contents of an application for a
patent, utility model, or industrial design
registration, published in accordance with the
Act, filed or effective in the Philippines, with a
filing or priority date that is earlier than the
filing or priority date of the application:
Provided, that the application which has validly
claimed the filing date of an earlier application
shall be prior art with effect as of the filing date
of such earlier application: Provided further,
that the application or the inventor identified in
both application or the inventor identified in
both applications are not one and the same.

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Non-patentable inventions:
1) Discoveries, scientific theories and mathematical
methods
2) Schemes, rules and methods of performing mental acts,
playing games or doing business, and programs for
computers
3) Methods for treatment of the human or animal body by
surgery or therapy and diagnostic methods practiced on
human or animal body. This provision shall not apply to
products and composition for use in any of these
methods
4) Plant varieties or animal breeds or essentially biological
process for the production of plants or animals. This
provision shall not apply to micro-organisms and non-
biological and microbiological processes

Provisions under this subsection shall not preclude
Congress to consider the enactment of a law providing
sui generis protection to plan varieties and animal breeds
and a system of community intellectual rights protection:
5) Aesthetic creations;
6) Anything that is contrary to public order or morality.

Basis:
1) There must be an invention (exercise of ingenuity,
beyond mere mechanical skill in the art, to produce a new
and useful result
2) Of a new and useful machine, product or substance, of
possible advantage to the public
3) Not previously known or used, or described in printed
publications, or in public use or on sale in the Philippines
or covered by any prior patent
4) Includes new and original industrial designs (shape,
pattern or appearance)
5) The invention is not patentable if:
a) Contrary to public order, morals, public health or
welfare
b) It is an abstract idea or principle or theorem

Procedure in the Patent Office (before the Commissioner of
Parents, whose decision is directly appealable to the Supreme
Court):
1) Sworn application by the true and actual inventor or his
heirs, representatives or assigns;
2) Specifications (description and claims);
3) Payment of fees;
4) Foreign applications on a reciprocity or a treaty basis
should be filed here within 12 months

Rights conferred by patent:
1) Where the subject matter of a patent is a product right
to restrain, prohibit and prevent any unauthorized person
or entity from making, using, offering for sale, selling or
importing that product;
2) Where the subject matter of a patent is a process right
to restrain, prevent, or prohibit any unauthorized person
or entity from using the process, and from
manufacturing, dealing in, using, selling, or offering for
sale, or importing any product obtained directly or
indirectly from such process.

Patent owners shall also have the right to assign, or transfer


by succession the patent, and to conclude licensing contracts
for the same.

A patent confers exclusive right to make, use or sell in the
Philippines, except (1) as against the government and (2) use
for research, experiment or instruction.

Remedies for infringement:
1) Injunction
2) Damages up to the extent of 3 times the actual amount.
These may be in the form of royalty.
The damages are not recoverable if no notice is given of
the patent or after 4 years of infringement.

Foreign patents are recognized upon the basis of reciprocity.

Cancellation may be had, after hearing in the Patent Office, on
the following grounds:
1) That it is not new or patentable;
2) That there has been faulty specification;
3) That the patenty is not the true or actual inventor, or
assignee thereof.

f.

Topographies of integrated circuits


g. Rights of performers, producers of
sound recordings and broadcasting
organizations


"Performers" - actors, singers, musicians, dancers, and other
persons who act, sing, declaim, play in, interpret, or otherwise
perform literary and artistic work;

"Sound recording" - the fixation of the sounds of a
performance or of other sounds, or representation of sound,
other than in the form of a fixation incorporated in a
cinematographic or other audiovisual work;

"Audiovisual work or fixation" - a work that consists of a
series of related images which impart the impression of
motion, with or without accompanying sounds, susceptible of
being made visible and, where accompanied by sounds,
susceptible of being made audible;

"Fixation" - the embodiment of sounds, or of the
representations thereof, from which they can be perceived,
reproduced or communicated through a device;

"Producer of a sound recording" - the person, or the legal
entity, who or which takes the initiative and has the
responsibility for the first fixation of the sounds of a
performance or other sounds, or the representation of
sounds;

"Publication of a fixed performance or a sound recording" -
the offering of copies of the fixed performance or the sound
recording to the public, with the consent of the right holder:

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Provided, That copies are offered to the public in reasonable
quality;

"Broadcasting" - the transmission by wireless means for the
public reception of sounds or of images or of representations
thereof; such transmission by satellite is also "broadcasting"
where the means for decrypting are provided to the public by
the broadcasting organization or with its consent;

"Broadcasting organization" - include a natural person or a
juridical entity duly authorized to engage in broadcasting; and

"Communication to the public of a performance or a sound
recording" - the transmission to the public, by any medium,
otherwise than by broadcasting, of sounds of a performance
or the representations of sounds fixed in a sound recording.
For purposes of Section 209, "communication to the public"
includes making the sounds or representations of sounds fixed
in a sound recording audible to the public.

Scope of performers rights:


1) As regards their performances, the right of authorizing:
a) The broadcasting and other communication to the
public of their performance; and
b) The fixation of their unfixed performance.
2) The right of authorizing the direct or indirect
reproduction of their performances fixed in sound
recordings, in any manner or form;
3) Subject to the provisions of Section 206, the right of
authorizing the first public distribution of the original and
copies of their performance fixed in the sound recording
through sale or rental or other forms of transfer of
ownership;
4) The right of authorizing the commercial rental to the
public of the original and copies of their performances
fixed in sound recordings, even after distribution of them
by, or pursuant to the authorization by the performer;
and
5) The right of authorizing the making available to the public
of their performances fixed in sound recordings, by wire
or wireless means, in such a way that members of the
public may access them from a place and time individually
chosen by them.

Moral rights of performers:


1) Independently of a performer's economic rights, the
performer, shall, as regards his live aural performances or
performances fixed in sound recordings, have the right to
claim to be identified as the performer of his
performances, except where the omission is dictated by
the manner of the use of the performance, and to object
to any distortion, mutilation or other modification of his
performances that would be prejudicial to his reputation.
2) The rights granted to a performer in accordance with
Subsection 203.1 shall be maintained and exercised fifty
(50) years after his death, by his heirs, and in default of
heirs, the government, where protection is claimed.

Rights of producers of sound recordings:

1)

2)

3)

The right to authorize the direct or indirect reproduction


of their sound recordings, in any manner or form; the
placing of these reproductions in the market and the right
of rental or lending;
The right to authorize the first public distribution of the
original and copies of their sound recordings through sale
or rental or other forms of transferring ownership; and
The right to authorize the commercial rental to the public
of the original and copies of their sound recordings, even
after distribution by them by or pursuant to authorization
by the producer.


Rights of broadcasting organizations:
1) The rebroadcasting of their broadcasts;
2) The recording in any manner, including the making of
films or the use of video tape, of their broadcasts for the
purpose of communication to the public of television
broadcasts of the same; and
3) The use of such records for fresh transmissions or for
fresh recording.

Limitations on protection:
1) The use by a natural person exclusively for his own
personal purposes;
2) Using short excerpts for reporting current events;
3) Use solely for the purpose of teaching or for scientific
research; and
4) Fair use of the broadcast subject to the conditions under
Section 185.

h. Protection of undisclosed information



i.

Laws repealed by the Intellectual


Property Code (Sec. 239)


Section 239. Repeals. -
239.1. All Acts and parts of Acts inconsistent herewith,
more particularly Republic Act No. 165, as amended; Republic
Act No. 166, as amended; and Articles 188 and 189 of the
Revised Penal Code; Presidential Decree No. 49, including
Presidential Decree No. 285, as amended, are hereby repealed.

239.2. Marks registered under Republic Act No. 166 shall
remain in force but shall be deemed to have been granted
under this Act and shall be due for renewal within the period
provided for under this Act and, upon renewal shall be
reclassified in accordance with the International Classification.
Trade names and marks registered in the Supplemental
Register under Republic Act No. 166 shall remain in force but
shall no longer be subject to renewal.

239.3. The provisions of this Act shall apply to works in
which copyright protection obtained prior to the effectivity of
this Act is subsisting: Provided, That the application of this Act
shall not result in the diminution of such protection.

All Acts and part of Acts that are inconsistent with the
Intellectual Property Code:

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1)
2)
3)
4)

PD 49 Intellectual Property Decree, including PD 285, as


amended
RA 165, as amended Patent Law
RA 166, as ameded An Act to Provide for the
Registration of Trademarks, Trade-names and Service-
names
Articles 188 and 189 of the RPC

B. Derivative Modes

Derivative modes of acquiring ownership are based on a right
previously held by another person, and therefore, subject to
the same characteristics, powers, burdens, etc. as when held
by previous owner.

Derivative mode may be by transfer or constitution of rights.
There is a transfer when the person transmits the right in its
entirety to another, thereby definitely losing the right.
e.g. in a contract of sale, when there is a tradition of
the thing sold.
There is a constitution of right when a person does not
transmit his right in its entirety, but only a part thereof, which
is inferior in character.
e.g. a mortgage, usufruct or other encumbrance in
favor of another is created in ones property.

1. Law

There is no specific Article in the Code covering law as one of
the modes of acquiring ownership. Law as a mode of
acquiring ownership should be interpreted to apply only to
situations where ownership is vested independently of the
other modes of acquisition.

Registration Act 496, The Land Registration Act

Land registration is not a mode of acquiring ownership. It
merely confirms the existence of ones ownership over a
property with notice to the whole world.

It must be noted though that in double sale or double
donation of realty, registration is made to prevail over
possession.

Registration does not vest title. It is merely an evidence of
such title over a particular property.

Purposes of registration:
1) To give notice to the whole world about the true status of
real property, and existing real rights thereon;
2) To bind third persons who may come and transact
contracts on the property. Titles of ownership, or other
rights over immovable property, if not annotated in the
Registry of Property shall not prejudice third persons,
unless they have actual knowledge of the transaction
involved;
3) To prevent the perpetration of frauds by plugging
loopholes which facilitate the unlawful transfers of
property.

Estoppel of title
Article 1434. When a person who is not the owner of the thing
sells or alienates and delivers it, and later the seller or grantor
acquires title thereto, such title passes by operation of law to
the buyer or grantee.

Marriage under absolute community of property system

Hidden treasure

Accession
Article 445. Whatever is built, planted or sown on the land of
another and the repairs or improvements made thereon,
belong to the owner of the land, subject to the provisions of
the following articles.

Change in rivers course
Article 461. River beds which are abandoned through the
natural change in the course of the waters ipso facto belong
to the owners whose lands are occupied by the new course in
proportion to the area lost. However, the owners of the lands
adjoining the old bed shall have the right to acquire the same
by paying the value thereof, which value shall not exceed the
value of the area occupied by the new bed.

Accession continua over movables
Article 466. Whenever two movable things belonging to
different owners are, without bad faith, united in such a way
that they form a single object, the owner of the principal thing
acquires the accessory, indemnifying the former owner
thereof for its value.

Article 681. Fruits naturally falling upon adjacent land belong
to the owner of said land.

Article 1456. If property is acquired through mistake or fraud,
the person is obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the person for
whom the property comes.

FC Article 120. The ownership of improvements, whether for
utility or adornment, made on the separate property of the
spouses at the expense of the partnership or through the acts
or efforts of either or both spouses shall pertain to the
conjugal partnership, or to the original owner-spouse, subject
to the following rules:

When the cost of the improvement made by the conjugal
partnership and any resulting increase in value are more than
the value of the property at the time of the improvement, the
entire property of one of the spouses shall belong to the
conjugal partnership, subject to reimbursement of the value of
the property of the owner-spouse at the time of the
improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the

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time of the liquidation of the conjugal partnership.

2. Donation see separate section

3. Succession mortis causa

Article 774. Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the extent of the
value of the inheritance, of a person are transmitted through
his death to another or others either by his will or by operation
of law.


Article 776. The inheritance includes all the property, rights
and obligations of a person which are not extinguished by his
death.


Article 777. The rights to the succession are transmitted from
the moment of the death of the decedent.

Elements of succession:
1) It is a mode or way of acquiring ownership
2) There is a transmission of property, rights and obligations
to another or others.
3) The cause of transmission is the death of the decedent
4) The procedure of transmission may be by will or
operation of law
5) The acceptance of the inheritance by the heir.

Rights to the succession are vested as of the moment of death
of the decedent. Until the death had supervened, the right to
succession is merely speculative for in the meantime, the law
may change, the will of the testator may vary, or the
circumstances may be modified to such an extent that he who
expects to receive the property may be deprived of it. The
moment of death is the determining point when an heir
acquires a definite right to the inheritance.

Succession v. Inheritance:
Succession is a mode of acquiring ownership which arises
when a predecessor dies. Inheritance refers to the object of
succession, that is, the mass or totality of the patrimony of the
deceased person that will be transferred to his heirs or estate
upon his death.

4. (Acquisitive) Prescription


Article 1106. By prescription, one acquires ownership and
other real rights through the lapse of time in the manner and
under the conditions laid down by law.

In the same way, rights and conditions are lost by prescription.


Article 1107. Persons who are capable of acquiring property or
rights by the other legal modes may acquire the same by
means of prescription.

Minors and other incapacitated persons may acquire property


or rights by prescription, either personally or through their
parents, guardians or legal representatives.


Article 1108. Prescription, both acquisitive and extinctive, runs
against:

(1) Minors and other incapacitated persons who have parents,
guardians or other legal representatives;

(2) Absentees who have administrators, either appointed by
them before their disappearance, or appointed by the courts;

(3) Persons living abroad, who have managers or
administrators;

(4) Juridical persons, except the State and its subdivisions.

Persons who are disqualified from administering their
property have a right to claim damages from their legal
representatives whose negligence has been the cause of
prescription.


Article 1109. Prescription does not run between husband and
wife, even though there be a separation of property agreed
upon in the marriage settlements or by judicial decree.

Neither does prescription run between parents and children,
during the minority or insanity of the latter, and between
guardian and ward during the continuance of the
guardianship.


Article 1110. Prescription, acquisitive and extinctive, runs in
favor of, or against a married woman.


Article 1111. Prescription obtained by a co-proprietor or a co-
owner shall benefit the others.


Article 1112. Persons with capacity to alienate property may
renounce prescription already obtained, but not the right to
prescribe in the future.

Prescription is deemed to have been tacitly renounced when
the renunciation results from acts which imply the
abandonment of the right acquired.


Article 1113. All things which are within the commerce of men
are susceptible of prescription, unless otherwise provided.
Property of the State or any of its subdivisions not patrimonial
in character shall not be the object of prescription.

De Mesa, Deveraturda, Esperas, Flores, Go, Goingo, Gonzales, Morillo, Mancao, Oposa, Refran, Serapio
D2012

124

Modes of Acquiring Ownership

Property Reviewer

Article 1114. Creditors and all other persons interested in
making the prescription effective may avail themselves
thereof notwithstanding the express or tacit renunciation by
the debtor or proprietor.

Prescription is a mode of acquiring (or losing) ownership and
other real rights thru the lapse of time in the manner and
under the conditions laid down by law, namely, that the
possession should be:
1) In the concept of an owner;
2) Public;
3) Peaceful;
4) Uninterrupted;
5) Adverse claimant clearly, definitely, and unequivocally
notify the owner of his intention to advert an exclusive
ownership in himself.

Acquisitive Prescription
Extinctive Prescription
(also called usucapcion) vests
the property and raise a new
Statute of limitation
title in the occupant
Positive action of the
Inaction or neglect of the
possessor
owner

The acquisition of ownership or other real rights through
prescription is retroactive once the period is completed; the
new owner is considered as having acquired the thing or right
from the moment the period began to run.

Persons capable of acquiring property or rights by other legal
modes may acquire the same by means of prescription.

Minors and other incapacitated persons may acquire property
rights by prescription, either personally or through their
parents, guardians or legal representatives. But in order for
them to acquire by prescription, it is necessary that they must
have discernment, because the animus rem sibi habiendi
(intent to appropriate the thing as ones own) is an essential
element of possession. When discernment is wanting, they
can acquire by prescription only through their legal
representatives.

Prescription runs against all persons having full civil capacity,
and even against:
Minors and other incapacitated persons who have
parents, guardians or other legal representatives;
Absentees who have administrators, either
appointed by them before their disappearance, or
appointed by the courts;
Persons living abroad, who have managers and
administrators; and
Juridical persons, except the state and its
subdivisions.

What cannot be acquired by prescription: movables
possessed through crime and lands registered under the
Torrens system

Kinds of prescription:
1) As to whether rights are acquired or lost

a)

2)

Acquisitive prescription
i) Ordinary prescription
ii) Extraordinary prescription
b) Extinctive prescription
As to the object or subject matter
a) Prescription of property
i) Prescription of real property
ii) Prescription of personal property
b) Prescription of rights


Requisites common to ordinary and extraordinary acquisitive
prescription:
1) Capacity of the acquirer to acquire by prescription
2) Capacity of the loser to lose by prescription
3) Object must be susceptible of prescription
4) Lapse of required period of time
a) Ordinary acquisitive prescription
i) Movable property 4 years
ii) Immovable property 8 years
b) Extraordinary acquisitive prescription
i) Movable property 10 years
ii) Immovable property 30 years
5) The possession must be:
a) In concepto de dueo (concept of owner)
b) Public (not clandestine nor non-apparent)
c) Peaceful (not thru force, violence, or intimidation)
d) Continuous or uninterrupted

Additional requisites for ordinary acquisitive prescription:
1) Good faith
2) Just title (there was a mode of acquiring ownership but
the grantor was not the owner; hence, the just title here
is titulo colorado or colorable